Posted by HisHughness on 9/22/13 12:18pm
Msg #485539

Important: About that perjury clause

I'm doing this as a message apart from the original thread because I don't want it to get lost amongst all the other postings on the subject. The clause in question, which originated in California and like so many other disquieting things from California -- Valley Girl speech, "Mexican food" that would be unrecognizable in Monterrey -- is spreading like mold across the country, reads: "I certify under PENALTY OF PERJURY under the laws of the State of [wherever] that the foregoing
paragraph is true and correct."

One California poster, responding to queries about what to do about the clause, stated: "People read way too much in to it."

That is far, far from the case. People outside California, where it is required, are justified to be concerned over the ramifications of signing off on such a certification.

Perjury is a <criminal> offense. Rather than just paying money damages to make such a charge go away, you can actually be sent to prison if convicted of perjury. Further, you have already done some of the prosecution's job in certifying that you essentially admit a criminal offense if the notarial certificate is incorrect.

On top of all that, good luck in mounting an inexpensive defense if you submitted yourself to the laws of another jurisdiction, as in an Illinois notary closing on a property in West Virginia. You have just said you agree to be tried under the laws of West Virginia, which means your Illinois lawyer has to school himself in West Virginia law before ever setting foot in the courtroom.

If your state does not require you to execute such a certification, DO NOT DO IT. If this particular destructive California mold continues to spread, and other state lawmakers actually adopt it, make sure that when you sign it, the clause submits you to the perjury laws of <your> state.

No thanks are necessary for this advice. Just name your firstborn after me (if a girl, Huette is just fine). I do request that you not, as have some members of this forum, name your toilet after me.

Reply by jba/fl on 9/22/13 12:32pm
Msg #485541

Interesting. I will change my MO and be anti this clause. TY n/m

Reply by BobbiCT on 9/22/13 12:48pm
Msg #485542

Not the way to spend my vacation travel savings ...

Well stated, Hugh. Using your example,

In addition to the upfront retainer cost of hiring a West Virginia attorney, the unwary Illinois notary could find herself traveling to West Virginia to defend herself against that Criminal offense - perjury. No bond or E&O insurance policy protects anyone from JAIL time. For those unfamiliar with the civil court system, you could go to court for an hour or two waiting, then end up with your case continued to a few months down the road (fly away home and come back again little bird).

Why subject yourself to this when you own state, where you are commissioned and your feet are on the ground, does not require it. If lenders want to use California notarization requirements, then let lenders pay to fly their borrowers to California for notary PUBLIC services.

Reply by Marian_in_CA on 9/22/13 1:31pm
Msg #485548

Of course Hugh is picking on me... since I was the one who said that.

I think, though, he took that out of context, so let me explain. Here's the entirety of my post:

"That perjury language is just there because all we're saying is that the person appeared before us, proved their identity and acknowledged signing. That's it. People read way too much in to it.

I don't know that it's out of place, really.

In reality, an acknowledgment certificate is the sworn statement of a notary... at least here in CA it is. The signer is the one acknowledging, not the notary. The notary, a sworn official, is the one indicating said person appeared before them, etc."

I'm referring specifically to CA notaries here. The reason that phrase is there, for CA notaries is because *WE* are swearing under oath that the person appeared before us and all of the other items in our required CA wording. We are NOT swearing to the contents of the documents or anything else. That's a concept some people don't really grasp. We are very limited in our roles. So, yes... people DO read way to much in to the perjury clause.... because they're assuming it refers to something it doesn't.

Reply by GOLDGIRL/CA on 9/22/13 4:20pm
Msg #485557

<<The reason that phrase is there, for CA notaries is because *WE* are swearing under oath that the person appeared before us and all of the other items in our required CA wording.>>

We are? Really? I thought we were "certifying." Who gave us the oath? The county clerk when we got our commission?

Reply by Marian_in_CA on 9/22/13 4:22pm
Msg #485558

Yes....actually, that's exactly true.

Certification under penalty of perjury is doing it under oath. That's why we're sworn officials.

Reply by Yoli/CA on 9/22/13 1:32pm
Msg #485549

Hugh: Would you be agreeable to Huey?

Reply by Darlin_AL on 9/22/13 2:27pm
Msg #485552

that's a 'copter, Yoli... who names a toilet? n/m

Reply by VT_Syrup on 9/22/13 2:57pm
Msg #485555

I agree with HisHughness that it's unwise for a notary to invite criminal charges, or any kind of legal action from another state. Even if the legal action turns out to be without merit, there are still legal expenses. And it's not clear that E & O insurance would provide legal defense for criminal charges.

If a case like this ever went all the way through the legal process, I'm not at all sure that perjury charges would succeed, even if the notary knowingly put false information in the certificate. Just putting a statement on a piece of paper that one certifies something under penalty of perjury does not mean the person writing the statement actually IS subject to the penalty of perjury. The traditional way of making oneself subject to the penalties of perjury is to take an oath or affirmation before an authorized official. There are fairly recent laws making one subject to the penalties of perjury without appearing before an authorized official, but I don't know if any of those recent laws would apply in this situation.

Reply by VT_Syrup on 9/23/13 10:49am
Msg #485594

Re: Important: About that perjury clause; found link

I found a link to an American Bar Association page about unsworn declarations:

http://www.americanbar.org/content/dam/aba/migrated/intlaw/policy/misc/unsworndeclarations.authcheckdam.pdf

This paper seems to indicate that in most states, unsworn declarations don't work (as of 2006). Of course, the perjury clause under discussion is an unsworn declaration because the notary completing the acknowledgement certificate does not appear before a second notary to swear to the truth of the acknowledgement certificate.

Reply by desktopfull on 9/22/13 5:26pm
Msg #485562

THANK YOU HUGH for verifying my position on this!

I replace CA Certificate with a Florida compliant certificate, tried to tell others here to do the same and they didn't think if was a big deal and continued filling out the CA certificates.

Reply by jojo_MN on 9/22/13 7:06pm
Msg #485563

I was told by the hiring entities that I cannot leave the

wording as is. I needed to cross out the word "California" and write in the name of the state in which I am notarizing the document. (MN, WI or IA) They said I could not cross it out even though my state does not require it.

Reply by HisHughness on 9/22/13 7:14pm
Msg #485564

Re: I was told by the hiring entities that I cannot leave the

Tell them you were hired to notarize documents, and you are prepared to do that. You are NOT prepared to submit yourself to unnecessary legal jeopardy that in no way impacts the validity of your notarization.

If you are unwilling to stand your ground on that, you probably should not be in this business.

Reply by TeriW/CA on 9/23/13 2:01pm
Msg #485621

Re: I was told by the hiring entities that I cannot leave the

If I were you, I would replace the ack/jurat with your own state's ack/jurat. That's what I do. I get docs all the time that do not have the CA wording so I have to replace them. I even get them from docs that are printed here in CA. Drives me nuts!

Reply by jojo_MN on 9/23/13 9:16pm
Msg #485670

Re: I was told by the hiring entities that I cannot leave the

Sorry, I deleted a few words before hitting "post" by accident. They said I can not cross just out their wording. I could IF I replaced California with the state in which I was notarizing the document.

Reply by JENNY/TX on 9/22/13 7:58pm
Msg #485566

I had a company that I had been working for tell me that, since I had crossed out that particular language, I would have to go back out and do a resign. I explained that I would not notarize with that language in my certificate and was told they would never use me again. Lost $$$'s but kept peace of mind. Obviously, someone down here is notarizing with the perjury language.

Thanks Hugh!

Reply by Linda_H/FL on 9/22/13 8:26pm
Msg #485567

Probably gonna slit my own throat here..but

found this:

"Law.com offers a good definition of perjury: "Perjury is the the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although it is a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood."

Note the last sentence....prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood."

Now - I have always left this statement in for 3 reasons..

#1 - though not a required component of our certificates, it does not render our certificate invalid.

#2 - we ARE allowed to use certificates required in another jurisdiction provided the certificate contains the 9 elements required in Florida ....and

#3 - the statements I sign off on in my acknowledgements ARE true - correct venue, correct date, appeared before me, name of person, acknowledged before me and identified via <<whatever>> means...this is all true.

IMHO if I am following my laws and notarizing properly, I AM telling the truth in my certs and there is no perjury to worry about. I *am* disturbed about the beginning of the definition - "Perjury is the the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official" - who am I sworn by? I certainly can't swear myself in...so I guess because I'm a "sworn public official" everything I say or put to writing is true.

I, too, have been told by a lender that their investor does not want that language crossed out - it's required and will kill the funding of the loan. I suppose I should consult an attorney here to see what the ramifications are but, honestly, based on the above definition (and others I've seen and my understanding of perjury over the years) I really don't think that's necessary. As long as I'm following my notary laws I should have no problem signing off on that penalties of perjury clause - though I must admit it drives me nuts to see it included in docs for this state.

JMHO

Reply by HisHughness on 9/22/13 8:43pm
Msg #485569

Re: Probably gonna slit my own throat here..but

The likelihood of a criminal prosecution under the clause in question is remote.

The likelihood of a criminal investigation under the clause in question is minimal.

The likelihood that signing off on the phrase will open up more avenues to cause you grief is 100 percent.

This is just the nose of the camel. It is a far different animal than 15 different lenders/TCs finding 15 different ways to state the essential elements of a jurat or acknowledgement. This is NOT an essential element except in California, to my knowledge. You can expect further encroachments on YOUR authority as a commissioned officer of the state if you acquiesce.

Reply by VT_Syrup on 9/22/13 9:54pm
Msg #485573

Re: Probably gonna slit my own throat here..but

Linda H/FL wrote, in part "#3 - the statements I sign off on in my acknowledgements ARE true". Of course, all of us would say that, and what we mean is that we believe, to the best of our knowledge, the statements in our certificates are true. If Linda H/FL believes that she would be subject to the penalties of perjury if the perjury clause is in her certificate, then, as far as she knows, her certificates are true.

I believe that in my state the clause would probably be without any effect. So if I were to put that in my certificate, I wouldn't believe that my certificate is true, because I'd be claiming that I'm certifying under the penalty of perjury when I don't think I really am.

Reply by Linda_H/FL on 9/22/13 10:03pm
Msg #485574

Huh?? n/m

Reply by VT_Syrup on 9/22/13 10:16pm
Msg #485575

Re: Huh??

In other words, if I write in an acknowledgement that I certify the proceeding paragraph is true under penalty of perjury under the laws of Vermont, but I don't think the laws of Vermont authorize me to make any such certification, then I lied, because I don't believe what I wrote.

Reply by Lee/AR on 9/23/13 7:30am
Msg #485583

Agree w/Hugh. The thing is that I see this clause on many

docs and the wording is identical to the CA wording EXCEPT they stick in my state's name, where there is NO SUCH LAW! To my way of thinking, that would be like driving 25mph on an interstate because that's what the ramp speed sign said. It just doesn't apply here and now.

Reply by Bob_Chicago on 9/23/13 9:38am
Msg #485586

Disagree with Hugh. First of all, if the NP IDs the signer

in reasonable accordance with the laws of the NP's state, and the signer signs , or
acknowledges the doc before the notary, not under obvious duress, then there is no perjury to be
prosecuted.
Further, no state can prosecute for an act that takes place outside of its borders.
Further, even if a NP was prosecuted for a deliberate wrongful notarization, the prosecution would be in accordance with the laws of the state where the NP was commissioned and committed the alleged wrongful act, regardless of the name of the state the was mentioned in the certificate.
I sign these if the say CA or if I have to fill in a blank with Illinois without a second thought.
I am NOT committing perjury, so what do I care which state's laws will not be used to prosecute me.

Reply by HisHughness on 9/23/13 10:17am
Msg #485591

Re: Disagree with Hugh. First of all, if the NP IDs the signer

***Further, no state can prosecute for an act that takes place outside of its borders.***

Bob_Chicago should know by now not to challenge his betters.

The clause in question does not submit the notary to the <jurisdiction> of another state, it submits the notary to the <laws> of the other state. You will be tried in Alaska under the applicable laws of New Mexico. That is a quite common approach in civil matters; many notes and other legally binding documents state that the laws of a given jurisdiction will apply.

It is well established that perjury is not a civil tort; it is only a criminal action. Now, what I do not know is whether a criminal charge will lie in one jurisdiction, but be tried under the laws of another jurisdiction. My ignorance of the answer to that question does not make me more comfortable in signing the perjury clause.

Bob's perfervid declarations that he has not committed perjury notwithstanding, I think many participants in this discussion do not understand how the system works.

Set aside for a moment the possibility of a criminal action. Let us presume that someone has been harmed by a transaction in which you notarized a critical document. In notarizing, you made a simple mistake: You got the date off by one day, or you misspelled the name by one letter. When the lawyer sues, he is going to cast as wide a net as possible, and he is going to plead as strong a case as he can; you have just handed him a perjury allegation.

You don't even have to make a mistake to place yourself in the line of fire. Leave off a middle initial for James R. Sanders, and if there's a James Sanders out there who is a felon, you have bought yourself inclusion in a lawsuit. And to answer Marian before she calls my hand, there is NO requirement that the name on your certification be an exact match for the name on the document; in fact, there is no requirement that there be a name at all.

The simple fact is that the clause is being added willy-nilly to notary certifications, probably by power-hungry escrow officers or lawyers who need to justify their retainer. It is required in only one state, it does not make a notarization any more valid, and its inclusion is an invasion of the authority of a commissioned state officer.

I do not sign them. I substitute a compliant certification.

Reply by jnew on 9/23/13 3:01pm
Msg #485629

Re: Disagree with Hugh. First of all, if the NP IDs the signer

I did not have time to read all of the responses. I am fairly sure that one state cannot require specific language on an acknowledgment or jurat which is performed in a different state. The state of venue's notary laws are accepted by any other state, regardless of the requirements of the other state. I know, for example, that my state, Wisconsin, requires representative language on the notarial certificate. If one acts as an attorney-in-fact it must be shown in the notarial certificate that the person is signing as attorney-in-fact. I know this conflicts with California law which specifies in its certificates that the name and not the representation applies and the representation cannot be shown. There is an argument that as long as the minimum requirements are met of the state of venue, then the notary could add additional language to satisfy the requirements of the customer, such as adding the marital status, which is indeed required by many lenders. I think the original poster has stated a valid argument. The notary public needs to satisfy his or her state's requirement and the language used is under the notary public's judgment and not the judgment of the customer.