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December 17, 2011

Penalties for notary misdeeds & misconduct!

Penalties for notary misconduct, crimes, and misdeeds 

I very rarely hear about notaries engaging in any type of illegal activity or illegal notarizations. The normal problem with notaries is lack of skill, neglegence, or bad tempers in a few cases.  I have only heard of one notary that engaged in a serious crime, and he went to jail.  This blog entry will discuss various types of notary misconduct and types of penalties for this misconduct in California. Please keep in mind that the notary rules are different in each of the 50 states, and that notary rules are also always changing.  However, if something is illegal in one state, there is a high chance that it will also be illegal in your state — although the penalties might be different. The information here is time sensitive and could change at any time. These are listed in the order of which I feel they are important to mobile notaries.
 
Asking a notary to do an improper notarization.
This is a misdemeanor.  If it involves real property, then it is much more serious.  Clients might ask you to notarize them using a different name variation that is not documented, or put a false date.  This is illegal. They are guilty for asking you to do this, and you will be guilty if you give in to their pressure. If you have driven thirty minutes to a job, you have a beneficial interest in notarizing their document unless you have gotten your travel fee up front when you walk in the door.  So, legally, you MUST get your travel fee BEFORE you see the document, or are informed who the signers are, or see their ID, because a conflict of interest can easily happen.  If someone asks you to do something illegal, you can threaten to report them to the Secretary of State’s office. This is a serious crime and you should treat it as such.
 
Issuing a false certificate
A notary who issues false certificates, and this could include backdated certificates would be guilty of a misdemeanor.  A false Acknowledgment certificate constitutes FORGERY.   Additionaly, the notary could have their commission revoked if found guilty of this crime, with an additional fine of $1500 per incident.
 
Failure to Identify a Credible Witness
A fine of $10,000 per incident could occur if a notary fails to check a credible witness’s identification documents and see that they have acceptable identification.
 
Failure to get a thumbprint!!!
This is my favorite.  Thumbprints are critical for identifying a signer if fraud is suspected.  Powers of Attorney and Deeds require a journal thumbprint in California.  A fine of up to $2500 per incident would be the penalty.
 
Failure to administer an Oath
A fine of $750 per incident could be incurred, not to mention revocation, or suspention of a notary commission, or refusal to grant a commission.
 
Felony Convictions
If you have a felony conviction or have been convicted of a crime involving dishonesty or moral turpitude, you will most likely not be allowed to get a notary commission in the first place.  If you already had a notary commission, it would be suspended or revoked the minute your state’s ntoary division finds out about it!
 
Professional Misconduct
This refers to dishonesty in your professional activities.  The penalty would once again be suspension, revocation, or refusal to grant a notary commission.
 
Failure of Duty
This means that you refuse to serve a member of the public who has a legitimate request for a notarization.  However, if the signer doesn’t have proper identification, or doesn’t have a properly filled out document, or seems very questionable, you have the right to refuse service to such a client.  The penalty would be refusal to grant a notary commission, suspension, or revocation of a notary commission. Additionally a fine of $750 could be imposed on the California notary public.
 
Falsely Acting as a Notary
This is a misdemeanor
 
Making false statements to a notary
Anyone who induces a notary to make an improper notarization with regards to real property can be found guilty of a FELONY.  This is the most serious type of fraud possible in the notary profession.
 
False or misleading notary advertising
Making false statements in notary advertising is illegal, and the penalty for California notaries is $1500 per incident.  Additionally, such a notary’s commission could be suspended, revoked, or there could be a refusal to issue a commission.  Claiming to be an immigration expert, or be able to give legal advice could be a serious example of false advertising. 
 
Selling personal information
If the notary sells or misuses personal information of those he/she has notarized, that is illegal as well.  Remember to keep your journals locked up, so that nobody can have access to that information. When making copies of journal entries, make sure that the neighboring journal entries are covered, so that their information is not shared with the public.  Once again, your application could be denied, or your commission could be suspended or revoked for such a crime.
 
Misstatements on a notary application (Application misstatement)
Your notary commission could be suspended, revoked, or refused if you are guilty of this misconduct
 
Here are some other crimes… I will just list them here, but may or may  not describe the penalties.
 
Failure to deliver a journal to the county clerk at the end of your commission. – misdemeanor
Failure to safeguard seal and journal – revoke/suspend/refuse
Failure to report a lost or damaged seal – $1500 fine
Nonpayment of judgement / Refusal to pay child support – refusal to issue a commission
Failure to keep a journal – such notaries will be prosecuted
 
There are a few others laws that I am not going to mention, but these were the interesting ones…

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California e-notary rules

Current 2011 / 2012 California e-notary rules
California requires the signer to appear before the notary public for all notary acts — electronic or not.  Documents that can be electronically notarized in California include: substitution of trustee, assignments of a deed of trust, and reconveyance deeds.  These must be submitted to the county clerk via a trusted submitter. An electronic seal may be used for these transactions online.  California Civil code 1633.11 states that an electronic signature carries the same legal effect as a physical signature made by a pen. 
 
Purely online notarization services are not legal in California.  You may not notarize someone using a web-cam, etc.  That doesn’t constitute personal appearance. The signer must be within several feet of the notary and clearly visable to the notary.
 
§ 1633.11. Notarization and signature under penalty of perjury requirements
(a) If a law requires that a signature be notarized, the requirement is satisfied with respect to an electronic signature if an electronic record includes, in addition to the electronic signature to be notarized, the electronic signature of a notary public together with all other information required to be included in a notarization by other applicable law.

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e-notarization definition
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November 23, 2011

California Acknowledgment and Jurat Information

To see current 2011 & 2012 California Acknowledgment wording  information and California Jurat verbiage  information, just visit:
http://www.123notary.com/California/acknowledgment_jurat.asp

California Acknowledgments & California Jurats

Notary laws are often based on antiquated social customs and laws.  Many notary laws in Louisiana are based on the old Spanish and French laws which make it extremely different from the rest of the United States.  Louisiana is sort of a foreign country controlled by our government.  The language is English, but the laws are not.  California notary law used to have some old rules too for identifying a signer
 
In olden times, people lived in smaller communities, traveled less, and had less access to the outside world.  In those days you knew your neighbors and knew them well.  California notary laws and laws in many states allowed a notary to use personal knowledge of an individual as a way to identify them for a notarization.  But, in 2011 with people flying all around, and nobody really knowing anyone, you can not really use personal knowledge as an identifying technique anymore.  People don’t even know their wives and children that well these days! After 9/11, the laws changed in many states.  It took a few years for the state governments to react, but standards for identification were raised.  You can still identify signers using credible witnesses which I feel is false identification. The credible witnesses don’t really usually know the signer that well, and have to be reminded of the signer’s name in many cases.  The most common form of identification is a driver’s license, state ID card, or password. 
 
In any case, California notary laws for identifying a signer for an acknowledged signature are tougher now that personal knowledge is not allowed.  But, signers also need to be identified for Jurats which never used to be the case.  In the last few years, the California notary wording or California notary Verbiage for Acknowledgment and Jurat forms has changed a little bit as well.
 
Oaths and Affirmations in California have now become a merged act.  You just choose whether you want it to be an affirmation or oath in the paperwork. 
 
 
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Notary Acknowledgment Information
 
Can a California notary be a witness?

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November 27, 2010

9/11 California Notary Law Changes

California Notary Law Changes 
Notary law has changed tremendously in the last few years across the nation, but the single most important event that shaped notary law was 9/11.  It took several years for the various state notary divisions to react and change their notary laws after this catastrophe, but they surely did.  Several of the terrorists were easily able to get fraudulent social security cards and drivers licenses.  The hijackers paid $100 to an illegal immigrant who had also fraudulently gotten his Virginia driver’s license — to execute the residency affidavit for the 9/11 hijackers before a Virginia notary public.  This notarized document from Virginia was sufficient proof to get a Virginia driver’s license which they needed to get on the airplanes.  The Virginia notary public involved in this transaction was prosecuted by homeland security.
 
After that incident, it was found that tens of thousands of fake Virginia identification cards and driver’s licenses were circulating, and Virginia made law changes as a reaction.  Notarized documents were no longer sufficient proof to get a driver’s license.  Virginia was not the only state to react to this catastrophe.  The California notary division, and many others reacted too.  Law changes started happeneing slowly, generally in 2005 and 2006.
 
Some of the main changes to California notary law were that personal knowledge of a signer was no longer grounds for personal knowledge.  California notaries also are responsible to make sure the document being notarized is not fraudulent.  Jurats now require being positively identified in California and almost every other state in the nation.  There are other laws that changed, but now governments are being careful about identification and preventing fraud.
 
In my personal opinion, California should never had had liberal identification standards to begin with.  The governments reaction to 9/11 is like frantically putting on your seat belt right after an accident.  The time to wear your seat belt is BEFORE an accident, which means all the time.  Additionally, the credible witness procedure in California and many other states is just as ludicrous as the personal knowledge form of identification.  If you personally know someone, how well does it mean that you know them?  There has never been a definitive standard other than that you knew them from a chain of events and people in various contexts which has several lines of text in legalese which nobody can make much sense of.   Credible witnesses do not usually know a signer well enough to identify them before a public official.  They know a signer as “Joe” their neighbor, and job could tell them his last name was Wagner, and the CW’s would swear to that before the notary when they don’t even know.  California is still careless with its notary laws in many ways.

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New California Notary laws effective Jan 1, 2012
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Penalties for notary misdeeds and misconduct
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