Posted by F2F/FL on 11/13/12 8:48am
Msg #443153

Confirmed a mistake made

I came on here a few days ago to ask for advice about being a witness to a notarization or the lack of in my own purchase transaction of my home.
Well I did have a chance to ask this notary/Title Business Owner who conducted the both transactions and she admitted to taking our sale documents back to her office and NOTARIZING them without us there. Then she proceeded to ask me why.
My heart is so mad. According to FL law she has committed a crime but I don't want to cause her any problems. At the same time this is exactly how these kinds of crimes happen and no one wants to upset the cart. I am so torn...
One of the reasons that I got into this business is that I am a victim of Identity Theft and authorizing a persons signature in front of the person is so important in todays business practices. My name was used six times, in six different stores, in six days, and six different cities, and credit was granted in every one of those applications for credit. I could go on and on, my point is that this is exactly how "criminals get away" with their crimes whether intentional of not.
This notary received payment as the Title Company Owner and named on the HUD and she was also the Notary Public who took the paperwork back to her office to do the notarization.
Like I said my heart hurts and I don't know what to do.

Reply by HisHughness on 11/13/12 9:09am
Msg #443157

A sense of proportion is probably in order here

It is not a crime in Texas, nor in many other jurisdictions, to do the actual notarization outside the presence of a signer. Any Secretary of State office will probably tell you the best practice is to notarize in the signer's presence, but "best practice" does not translate into "required practice" in many if not most states. I routinely notarize later as a courtesy to borrowers, who have always expressed to me that they don't want to have to sit at the table while I complete my ministerial functions.

I gather, from an earlier post, that you do loan signings, yet you apparently were unaware of the existence of rescission calendars, or how to access one. That is a critical piece of information in a transaction involving hundreds of thousands of dollars and what is likely the signers' biggest single asset. Under those circumstances, I think I would cut the notary some slack, and simply inform her what the requirements of the law are -- just as someone on this forum directed you to a rescission calendar for future reference.

Reply by dutchcloser on 11/13/12 9:11am
Msg #443158

Re:I agree Hugh...not that serious JMHO...moving on n/m

Reply by C. Rivera Chicago Notary Services on 11/13/12 9:23am
Msg #443161

very well said Hugh...and I agree... n/m

Reply by F2F/FL on 11/13/12 9:32am
Msg #443162

Re: A sense of proportion is probably in order here

Here is what FL notaries public really need to know:
Physical Presence Required: Notaries are expressly prohibited from notarizing the physical or electronic signature of any signer who is not in the Notary's presence at the time of notarization (FS 117.021[1] and 107[9]).
Hugh I really don't want to turn this into an argument, but your comparisan really does not make any sense in this matter. You know what they say about the word "assume".

Reply by C. Rivera Chicago Notary Services on 11/13/12 9:52am
Msg #443169

Your reply is curious and VERY familiar of someone else I

know from your state...anyway...

...your state statute is your answer...so make a decision.

...your either going to call the FL SOS and report this issue or not.

If you are in fact, a victim of identity theft, I would think this would be a no brainer for you?

If the notary did not follow the rules, why are you feeling guilty about reporting them? They need to know what they did wrong and correct it quick so they don't screw up anymore IMO.

Reply by F2F/FL on 11/13/12 10:11am
Msg #443176

Re: Your reply is curious and VERY familiar of someone else I

Thank you Carrie, and I have put in a call to the FL. SOS office and I am waiting for a return call. I guess this is just one of those "What would you do" kinds of cituations, and I also do plan on discussing it with the Notary in question.
Again thank you for your understanding.

Reply by BrendaTx on 11/13/12 12:05pm
Msg #443199

Re: A sense of proportion is probably in order here

"Physical Presence Required: Notaries are expressly prohibited from notarizing the physical or electronic signature of any signer who is not in the Notary's presence at the time of notarization (FS 117.021[1] and 107[9])."

For certain, do not notarize for a person who has not appeared before you. Never, ever.

Rhetorical questions: So what part is the actual "notarizing"? Checking the ID? Witnessing the signature?? Administering the oath? Signing your name? Having them sign the journal? Applying the stamp?

I believe that it is a good practice to apply the stamp while the signer is in your presence. Applying the stamp is a significant part of a notarial act, but not the entire act of notarizing.

Back in the day, the question never came up about whether or not a notary had to place the stamp in the presence of the signer-- the signer always took the document with him/her except in rare cases in law offices.

Title companies notarize loan documents, and banks do, and they do not always apply the stamp at the table, but they do not crawl into every crack and cranny of a notary's person to analyze their actions, nor do they parse furiously through notaries laws (like we do) to find fault.

Title company and bank notaries know well enough what they are doing. Their track records and volumes of work product prove that their work is satisfactory and reliable...well...to just about everyone but the tough crowd here that I am pleased to be a part of.

When notary laws were written, lawmakers never gave thought to the fact that a notary might make a career from notarizing 20 loan documents in homes with children leaving trails of snot down their legs, a home blessed with a hump-happy dog, nor that they might have to sit next to a vomiting virus ridden child as a routine part of conducting business. It is not easy to perform as a notary under those circumstances. Getting the signatures and heading back to one's home office IS, in my opinion, an option when circumstances dictate.

Use sensible thinking.

Reply by Julie/MI on 11/13/12 7:27pm
Msg #443271

Bravo Brenda! Take a bow :)

Reply by A S Johnson on 11/13/12 9:39am
Msg #443166

Re: A sense of proportion is probably in order here

Thank you, Hugh. because I many times travel 60 plus miles one way to an appointment, I often wondered if I missed a Notary cert, when the signer (s) did sign, would I need to return to Stamp and do the cert in front of them.

Reply by F2F/FL on 11/13/12 10:00am
Msg #443172

Re: A sense of proportion is probably in order here

WOW I am really surprised that you are thanking His Hugness for this advice. Although that may be alright to do in TX it is not here in FL. and if I was at a signing 60 miles away and I didn't check and re-check my work while I was at the signers table then this example of shortcuts and false accusations do become truth. Where does Hugh's advice make it OK?

In fact if I was to take the doc's out of someone's home/office/starbucks without notarization's performed infront of the signers then I damned well be getting that permission in writing in my log book. I do keep a legal log of each transaction I do, and in FL. I don't even have too.

Reply by C. Rivera Chicago Notary Services on 11/13/12 10:08am
Msg #443175

you know, for one not wanting to argue...u sure r pushing it n/m

Reply by F2F/FL on 11/13/12 10:15am
Msg #443177

Re: you know, for one not wanting to argue...u sure r pushing it

My apologies, it's just statments like his that have ruffled feathers and I have probably gone to far with this matter.

Reply by Buddy Young on 11/13/12 10:49am
Msg #443183

Re: you know, for one not wanting to argue...u sure r pushing it n/m

Reply by MistarellaFL on 11/13/12 10:53am
Msg #443184

While it may not be illegal in some states, it certainly is

a best practice to complete notarizations at the time of signing.
Worst case scenario would be if the notary was incapacitated or died before completing the notarizations at leisure.

Reply by Ruby on 11/13/12 11:43am
Msg #443195

Is this Robert from Florida. If not you sound like his brother. My hmo.

Reply by BrendaTx on 11/13/12 12:09pm
Msg #443200

I would not think this issue would

be on Robert's radar. Not hIm.

Reply by jba/fl on 11/13/12 3:09pm
Msg #443224

OMG - never on his radar! Totally agree. n/m

Reply by C. Rivera Chicago Notary Services on 11/13/12 12:25pm
Msg #443204

RUBY you read my mind! LMAO! n/m

Reply by HisHughness on 11/13/12 12:56pm
Msg #443209

Robrt actually pinned my ears back on this a while back

as I recall. At least I think this was the issue where he was right and I was wrong...the "blind hog" syndrome ccomes to mind.

This doesn't even seem to be a close call to me. It's a crime in Florida, not in most states. Since Florida takes it more seriously than most, the notary should be made aware of that, but why would anyone want to expose her to criminal or professional penalties if no harm resulted?

Reply by BrendaTx on 11/13/12 1:20pm
Msg #443212

Re: Robrt actually pinned my ears back on this a while back

*Since Florida takes it more seriously than most, the notary should be made aware of that, but why would anyone want to expose her to criminal or professional penalties if no harm resulted?*

Exactly.

Reply by Linda_H/FL on 11/13/12 12:15pm
Msg #443201

Maybe fine in other states...but not here..

and here's the proper Florida citation (which I believe was posted previously)

"Florida Statutes section 117.107(9) provides that:

A notary public may not notarize a signature on a document if the person is not in the presence of the notary public at the time the signature is notarized. Any notary public who violates this paragraph is guilty of a civil infraction, punishable by penalty not exceeding $5,000, and that conduct constitutes malfeasance and misfeasance in the conduct of official duties. It is no defense to the civil infraction specified in this paragraph that the notary public acted without intent to defraud. A notary public who violates this paragraph with the intent
to defraud is guilty of violating s. 117.105.

Violation of section 117.105 constitutes a third-degree felony for fraudulently taking an acknowledgment or making a false notary certificate."

Plain as day in my book - what she did is wrong. "A notary public may not notarize a signature on a document if the person is not in the presence of the notary public at the time the signature is notarized. "

E-mail Heather Slager - you'll get a quicker response from her. [e-mail address],

Reply by Linda_H/FL on 11/13/12 12:16pm
Msg #443202

Forgot the link to the proper place in the manual

http://www.flgov.com/wp-content/uploads/notary/ref_manual23-40.pdf

Reply by F2F/FL on 11/13/12 12:39pm
Msg #443207

Re: Maybe fine in other states...but not here..

Thank you Linda again you have responded respectfully to my OP.

Reply by BrendaTx on 11/13/12 1:18pm
Msg #443211

Re: Maybe fine in other states...but not here..

FL2/FL this is not about respect v disrespect. It is about (in my opinion) several non-lawyers (except for His Hughness) interpreting law and sharing their interpretations of the law.

Linda - My laws say basically the same thing, as I recall. (My interpretation: Don't notarize without personal appearance. Not my interpretation: Never, ever apply the stamp out of sight of signer.)

Ms. Slager/SOS might agree with you on this, but I think that the OP's decision to turn the notary in for not applying the stamp in front of her/him is a pointless act. That's like me tattling on another employee for not putting down that they took off an hour early when they work over twice that much. It is technically violating a state law, but being sensible is a factor and there are better ways to burn tax dollars (I work for the state) than to report someone on that level.

I don't think that anything will be done about it.

Doesn't anyone recall that when the FL SOS was contacted, nothing was done about the witness's signature being added to documents after they were signed and notarized? Search for it...PAW and Sylvia discussed. There was no intent of harm...no one suffered loss...no one except the one who suffered loss could complain. No loss...no complaint...nothing was done!

Complaining to Ms. Slager is very similar to this. The notary was not harming anyone. The signer appeared before him/her. It's the OP's word against hers. There's no loss.

Anyhow...that's my review of this situation from a practical view.

Reply by MistarellaFL on 11/13/12 1:27pm
Msg #443213

Agree Brenda.

This instance, no harm, no foul. Move on.

Gov's office isn't going to do anything, not even a slap on the wrist or an email to the notary telling her she's been a bad notary.
No one's hurt, so it won't happen.

Reply by jnew on 11/13/12 1:45pm
Msg #443217

Re: Maybe fine in other states...but not here..

Brenda makes an excellent point. Personal appearance has more to do with the acknowledgment taken than the fine points of the notary signing, completing the dates, adding the commission expiration and applying the seal. When working for a title company, our closers were always fighting time constraints. They could not complete all of the notarizations and keep to the schedule of back to back and simultaneous closings. Our state law does not require a notarial certification to be completed at the exact time the document is signed and/or acknowledged. It requires the signature of the notary, but does not require the certificate to be completed in the notary's handwriting. I guess the application of the seal to the document may be subject to question, since an unscrupulous assistant might misuse the notarial seal independently and falsify a document. There is a matter of trust involved that this would not happen. ( the same with someone not authorized to sign checks loading the blank checks into a printer.) The lenders are now under increased scrutiny since the robo signing problem and I know of at least five of my companies that require full completion of the notarial certificate, signing and sealing at the time of signing. There are attorneys in my area who advertise on the radio that they will fight your foreclosure. If the borrowers can prove that the notarial act occurred outside of the presence of the borrower, they might use it to sue the lender. I generally complete the text of my certificates prior to the signing and sign date and seal in the presence of the signer. Another question, in Florida, if immediately upon signing the document, one of the borrowers gets up and goes to the bathroom, do you have to wait until the borrower returns to the table before completing the certificate?

Reply by NVLSlady/VA on 11/13/12 2:21pm
Msg #443221

Re: Maybe fine in other states...but not here..

<<in Florida, if immediately upon signing the document, one of the borrowers gets up and goes to the bathroom, do you have to wait until the borrower returns to the table before completing the certificate?>>

Yes, Inquiring minds want to KNOW!!

BTW, Seems almost incomprehensible that an entire signing would be "sabotaged" in some people's minds because of this. "Humans" and lawyers communicate differently; I can't believe FL law didn't have "personal appearance" in mind. Of course, some of us in other states think the CA journal issue is a wee too much of micro-management, too.

p.s. PLEASE, let's not open THAT discussion. Most VA notaries (like myself) DO keep journals, just thankfully for our records only

Reply by F2F/FL on 11/13/12 3:35pm
Msg #443230

Re: Thank you all for your imput and

just so you know I did get an immediate response from Ms. Slager and she did confirm that the actions or non-actions of this notary were indeed against FL. State Law. She sent me the pdf. complaint forms and advised me to get legal counsel if I intend to bring a formal complaint.
Now a formal complaint was not and never was my intentions, and I would be completley within my rights, so as some of you have said nothing will come of this and you may or may not be right.
My true intentions were to bring her actions to her attention in a good faith way so that she might consider changing her professional practices so that someone else (not in the notary business) might bring about a complaint against her. As we all know the people we meet in our everyday transactions may have more knowledge about the laws than we think.

All I know is that she did not sign our papers infront of us and I found it quit odd and I came here to get some advice. But please don't dismiss the laws that are given too us to go by, because people DO get hurt when others want to committ shortcuts and don't feel they are hurting anything or anyone.

Reply by jba/fl on 11/13/12 3:52pm
Msg #443237

ok - Enquiring Minds that want to know:

I can sign and stamp before they get completely up from the table from that last signature, IF they pass that paper to me.

All my certs are normally filled out by the time I get to the table - my scrawl and stamp are all that are left, aside from ID type presented.

But, let's be sensible - they can watch me checking prior to walking out the door, and if I have missed something they can then see me complete prior to leaving. I feel that satisfies the law - that I am at the table, they know the package is complete....they watched me check & finalize if necessary prior to leaving.

Reply by BrendaTx on 11/13/12 7:08pm
Msg #443270

Thanks, jnew...not as sharp as I used to be....

*Another question, in Florida, if immediately upon signing the document, one of the borrowers gets up and goes to the bathroom, do you have to wait until the borrower returns to the table before completing the certificate?*

Great example.

Reply by MikeC/TX on 11/13/12 6:29pm
Msg #443265

Don't agree with you 100% on this one...

Yes, it appears that there's "no harm, no foul", but by doing it this way the potential for fraud is certainly there. As the ads for investment companies say (usually in small print or spoken very quickly), past performance is not a guarantee of future results. Just because it was innocent this time doesn't mean it won't be less than that in the future. Better to not put yourself in that position in the first place

My feeling is that, even if state law does not require it, best practice is to complete the notarization at the time of signing. I understand Hugh's point about doing it later as a convenience for those customers who don't want to sit around waiting while the ministerial function is completed. I also agree with him that "best practice" does not mean you have to do more than the law says you must do - "best practice" is a suggestion, not an edict.

On the other hand, there's always the possibility of something happening after the signing - an accident, a medical emergency, alien space ships vaporizing your car with a death-ray- that would prevent the notary from completing the notarization after the fact. Improbable? Yes. Impossible? No (except for the vaporizing thing... maybe...). I can't guarantee that I won't be t-boned by a tractor-trailer after leaving your home; how can I guarantee that I can get the notarizations done later?

In this case, however, FL law seems to be quite clear on how things are supposed to be done, so "best practice" is not an issue here. It's obvious that this notary did not comply with law. Should she be reported for that? I'm not sure. So as far as we know, nothing bad happened here. Yet.

I would be more concerned with the fact that OWNER of the TC was also serving as the notary on this deal - that violates the concept of not notarizing in a situation in which you have a beneficial interest, which I think applies in every state. It would be fine if there were an employee of the TC acting as notary, but that should not be the person cashing the check when the deal is done.

Just my opinion - I'm sure others will differ.

Reply by SharonMN on 11/13/12 3:33pm
Msg #443229

I'm curious as to why you didn't say anything while you were signing the documents. I would have said, hey, these require notarization, who's the notary? Aren't you going to check my ID? Seems a bit odd to be obsessing about it after the fact, even if the notary did violate FL law by doing the notarizations after you left.

Reply by BBuchler/CA on 11/14/12 6:49pm
Msg #443429

To each his/her/their/it own

My thinking is this - when I am watching them sign documents, I have on my loan signing agent hat and when I'm notarizing documents, I'm a notary. And as a notary, what would I normally do? They'd bring me a document, I'd watch them sign it, I'd fill in the form, sign it and put on my stamp. And off they go. The only difference with a loan signing - I'm taking the documents with me. So why not do the same thing all the time as a notary, be it at a loan signing or be it a general notarization.

I'd love to be able to fill in all the blanks, but that's not my job, unless those blanks have to do with my notary form. I'd love to be able to do it at home, but that's not what the law says I can do.

They sign a doc, I notarize it, we move onto the next page. At the end I always go over the docs for missing items. I have NEVER had a loan signing go over an hour with this process. Yes, it may go over because of questions or problems, but barring those, its a simple process. Sign, date, sign date, sign, date, notarize, rinse, repeat. I also organize my docs so ALL the notarizations are usually on the top, get that out of the way.

I think talking about the situation to the notary in question would have been of more benefit than calling the authorities, although I understand your thinking. You missed an opportunity at the time of the event to have a "teachable" moment. After some thought, you felt the line was crossed, for you, and you had to do what you had to do. Other people have different lines, not right, not wrong, just different. If YOU, not me, not them, feel that you handled it to YOUR satisfaction, then rest easy. You have now had the opportunity to have insight from a variety of people on how THEY would have handled it, and should a situation occur again giving you pause, well, you can think back to this thread and decide how best for YOU to handle it.