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November 20, 2011

The Notary Signing Agent Loan Signing Process & Pitfalls

Filed under: Ken Edelstein — Tags: , , , , — admin @ 5:54 am

The Notary Signing Agent “Loan Closing” – Process, Preparation & Pitfalls

Perhaps it would be best to cover the events, from the desire for a mortgage, or re-finance, to funding; chronologically, as the timeline is the only common aspect. The borrower completes a Loan Application (more on the importance of this later), and numerous other documents. These are usually signed at the location of the Lending Institution (bank), in the presence of the Loan Officer (LO). Once approved by the bank, the processing becomes very interesting indeed.

The LO’s bank will lend money to the borrower based on the Mortgage as collateral for the loan. Banks do not like to take any risk whatsoever. What if the borrower does not have “clear title” to the property? To protect the bank, the bank requires the borrower to pay for “Title Insurance” issued by a “Title Co.”. So the next step is for the LO to contact a Title Co. to arrange for the insurance. Note that from this point forward the Title Co. “calls the shots”; as the Title Co. is the only party taking “risk”. If they do not issue the necessary insurance, there is no loan.

Eventually, after the loan has been approved, and the Title Insurance has been approved – usually about 2-3 weeks after the Loan Application; the stage is set for the actual processing of the paperwork. Various documents must be notarized, and it is the role of the Notary Public to check the ID’s of affiants on notarized documents; and there will be many! The mortgage is always notarized; and frequently two copies are processed; in case the messenger sent to record the mortgage at the local county clerk’s office loses it on the way. That actually does happen.

At this point the documents, typically from 80 to 125 pages are computer generated and ready for the Notary Signing Agent to bring to the borrower. But first a qualified NSA must be selected. As it is the Title Co. who is most interested in proper completion of the paperwork, they take on a leadership role to get the documents signed by the borrowers. But, not wanting to actually deal with, or have to select notaries, they often use a Signing Service (SS) to actually choose the notary.

At this point the Signing Agent gets a call asking if they are available to be at so and so location at such and such a time. If not, they call the next agent on their list. If it works for the agent’s schedule, they negotiate a fee. That fee is based on the requirements to process the Loan
Package. Variables include the number of pages, the distance to the borrower, time of day (extra for me to be there at 7AM on Sunday), etc. Also discussed are how and when the package is to be sent to the Signing Agent – overnight, usually via FedEx or E-mail. The latter
has usually has an additional fee. Once an agreement is reached, the Signing Service, on behalf of the Title Company sends a “work order” to the Signing Agent.

Now the ball is in the Notary Signing Agent’s court. Everyone who did anything prior to this point is depending on the NSA to get the borrower’s signatures and initials completely, and to do the requisite notarizations accurately. The NSA must also make sure any “non borrowing spouse” is present to sign docs as required by state law. There is much for the NSA to do. First the borrower must be called to confirm the “work order” as to contact information and address and to verify the scheduled time of meeting; and that all will bring proper ID to the table. Next, the NSA must receive and print two sets of the loan documents (borrower copy and bank copy). A good NSA will explain what will take place at the “signing” and remind the borrower to have their photo ID (and a copy to submit) ready for the meeting. A really good NSA will ask the borrower what name is on their ID, as the property “vesting” name sometimes differs from the name on the borrower’s ID. If so, the NSA contacts the Signing Service to get the documents corrected, or the borrower finds appropriate ID matching the documents.

Finally, usually with barely enough time to print and drive; the E-document is received and two sets printed. If there is adequate time after printing, some NSA’s like to pre-notarize the documents so they are able to devote their full attention to the signing process. Map in hand, GPS programmed, hoping the traffic is light; the NSA departs for the scheduled meeting with the borrower. A good NSA always uses a GPS to find the borrower’s location and does not get lost in the process. After dark jobs usually require a powerful flashlight to see house numbers in
residential neighborhoods.

The NSA shows their ID and requests the ID of the borrower(s). Then, the page by page completion of the documents begins. A single flaw, omission, or unreadable date (usually by the borrower) will often result in a complete re-draw of everything. The experienced NSA knows to “swap a page” from the borrower’s copy to allow a redo of a page with an error. The process usually takes about an hour, depending on the size of the Loan Package, how much the borrower wishes to read, and the amount of information to be entered. Often the borrower has questions and “attempts” to contact the LO. If, as is sometimes the case; the borrower receives the package directly, days prior to the Notaries arrival; they are expected to read it and ask their LO any questions. But, some borrowers want to ask questions of the Notary Signing Agent.

Title Co.’s and Signing Services tell the NSA to “explain the documents, but do not give legal advice”. It’s a really fine line between the two. Most NSA’s choose the side of caution and only define terms and assist the borrower to find documents with desired information (the interest
rate, the APR, the pre-payment penalty). At this time, the computer generated replacement for the original hand written Loan Application is signed. This is one of the most important documents. It is on this document that the borrower has made claims about their credit
worthiness, salary, etc. Any false statement on this document would allow the Lending Institution to demand the loan be paid in full immediately! Also, many of the numbers on this document will be wrong – because time has passed since it was originally signed – some debts
shown will be higher or lower.

Having been on several thousand signings the environmental aspects of the borrower’s premises are worthy of comment. They range from a well lit kitchen table in an air-conditioned room – to, and I am not making this up – a fruit fly infested room where the borrower pursues his
hobby of “naturally” raising Iguanas! There are many other pitfalls. In New York, the Notary is mandated to only use black ink; but Pinellas County, Florida will not record a mortgage unless all signatures are in blue ink! I have been asked several times (verbally, of course),
to “backdate” my notarization date, as the papers have expired (borrower out of town, rate lock expired, etc.). In New York that is called Forgery, a class D Felony – worthy of seven years in prison!

Finally the documents are signed and notarized, the borrower given the Notary Oath – and it’s off to FedEx to ship the documents to the Title Company. Well, not exactly. First somedocuments must be faxed, (lots of them if it will fund same day); and an airbill very carefully
prepared. Phone calls must be made to report success or failure “at the table”, and an invoice prepared. At last all is ready and the papers are handed off to FedEx.

Although the borrower thinks the “closing” has been completed – it actually has not even started. If I was a true “closing agent” – I would have a checkbook and be able to write the check on the spot. It used to be done that way many years ago. Now, the papers are received by the Title
Company and they review them for errors. If their included documents, often called “junk docs” (because they tend to be 4th generation Xerox copies), are completed and notarized correctly they approve issuance of the Title Insurance and pass the paperwork to the Lending Institution. At that time the papers are again reviewed, this time the review is for the papers that originated from the bank. The bank, with the knowledge of Title Insurance approval; will at last do the real “Closing” – which allows for issuance of the check that the borrower has been seeking.

Thus, the Notary Signing Agent is an integral part of the process. Important documents are notarized to assure the validity of the signatures. No system is perfect. A notary can be fooled with a good forgery. So can a State Trooper, with a phony Driver’s License. But, the bulk of the
impersonation potential is filtered at the source by the NSA’s diligence in pursuing valid ID and using their stamp and embosser on documents. Borrowers like to sign papers in the comfort of their own home/office – at their convenience. The licensed and professional notary, though a part of the system that caused the recent mortgage “melt down” disaster; was never a causative factor. If not for the diligence of professional notaries pursuing the NSA craft, things would have been much, much worse.

http://kenneth-a-edelstein.com

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November 19, 2011

How do I fill out a Notary Journal Entry?

Filed under: Journals,SEO,Technical & Legal,Ultra-Popular — Tags: , , , , , — admin @ 12:56 am

How do I fill out a journal entry?
 
Please keep in mind that rules and standards for notary procedures can vary from state to state across the United States.  As a general rule, there are certain areas of confusion that we want to make it a point to clarify.
 
Q. Do I need to have a separate journal entry for each signature that I notarize? 
A. Yes!  Imagine that you are notarizing signatures on a set of loan documents.  Let’s say that there are four documents to be notarized and both husband and wife need to sign each one — you have eight notarized signatures and eight journal entries. 
One journal entry per notarized signature.
 
Q. Does each journal entry need to be signed?
A. Yes!  The individual whose signature you are notarizing needs to sign the corresponding journal entry.
 
Q.  What about thumbprints? Do I need to take a thumbprint?
A.  Sometimes!  For Deeds and Power of Attorney documents in California, you must take a thumbprint.  For other states, there are different standards, but it is always better to have a journal thumbprint just so you can be 100% sure of the signers identity.  ID’s can be forged, but thumbprints of a live person in front of you can not be forged!
 
Q.  What goes in a notary journal entry?
Date &Time,
Type of notarization (i.e. acknowledgment, jurat, oath, affirmation, protest, etc.)
Name of the document being notarized (i.e. affidavit, deed of trust, occupancy affidavit, etc.)
Document date (documents don’t always have a document date, but if you have 20 documents called “affidavit”, you need to distinguish them somehow and a date might help)
Name and address of signer
Identification of signer
Additional notes
Signature of the signer
Thumbprint of the signer (optional in many states)
 
Q.  What if I’m doing a signing that starts at 11:55pm and ends at 12:05am the next day, what date do I use?
A.  You can use either day, but I would date the notary act at the exact time that the signer signs your journal since that is a definitive POINT in time, rather than a range of time.  Some notary acts allow the signer to sign the document BEFORE they see the notary making the document signing a poor choice for a definitive point in time to date the transaction.
 
Q.  Can I make recommendations for what type of notarizations the signers should get since I know more than them?
A.  No! That is considered giving legal advice  (unauthorized practice of law) in many states. Let them choose on their own, although you can tell them what is “normal” as well as explaining the characteristics of each type of notary act in your state.
 
Q. What if many documents I am notarizing all have the same name?
A. It is good to distinguish documents by other characteristics. If you have 20 Grant Deeds to be notarized by the same signer on the same day, you can note the property addresses indicated on the Grant Deed to distinguish which document you were really notarizing. Otherwise, if you ever go to court, you will not be able to tell the judge if you notarized a particular Grant Deed for that particular signer. Imagine what would happen if he did a 21st Grant Deed after you left and forged your seal on the certificate section and claimed that you notarized it.  If your journal doesn’t describe EXACTLY which documents were notarized, you can get duped by a sophisticated fraud!
 
Q.  Name and address of signer, do I have to write this for each entry?
A.  You can write the name and address of a particular signer, and then draw an arrow down for all documents with that person’s signature being notarized. Each document gets it’s own journal entry per signer.  If you have Joe signing four documents and Sally signing four documents, make sure the journal entries for Joe are all sequential so that they will be consecutive and all in the same place.  Then below those entries you can write Sally’s name and address and a separate entry for all of her documents that she is signing.  Example: Lets say your journal page has eight entries.  Entry 1, 2, 3, and 4 would be for Joe. Joes name and address would be on the first entry along with a particular document name and other information.  For entry 2, 3, and 4, you would see different document names, and an arrow indicating that the signer was still Joe and that his information was the same.  Journal entries 5, 6, 7, 8 would be for Sally and her information would go on entry 5 along with a particular document’s name, and then 6, 7, 8 would have document names and an arrow in the name/address field to indicate that it is still Sally who is the signer.  Make sure Joe signs all four of his entries, and that Sally signs for all four of her entries, otherwise you get in trouble if audited.
 
Q.  How do I identify a signer?
A. Rules are different from state to state.  Some states allow a notary to personally know a signer to constitute being positively identified.  Others allow credible witnesses.  All states allow a signer to be identified through the use of current identity documents such as drivers licenses, passports, state identification cards, etc.  The documents (cards) must have a photo, signature, physical description, name, address, expiration date, and serial number to be acceptable.  Some states allow a card to be used for a grace period after it expires.  If your state allows the card to be used five years after it’s issue date, then you need to be able to read the code on the card to figure out when it was issued.
 
Q. Additional notes — what is that for?
A.  If you use credible witnesses, you document their signatures and other information in the additional notes section.  If you want to document unusual situations, or unusual characteristics of the signers, that is the place to put it.  If you are ever called to court, the information in your journal is the ONLY way you will remember the signing in many cases, especially if you do four signings per day over a course of 12 years.  Example: “The male signer Joe looked like a walrus.Sally had a squeeky voice and seemed nervous.”
 
Q.  Signature area – who signs in the signature area?
A.  The signer of a particular document signs in the signature area (not the notary).  Only one signature per journal entry.  If two people are signing the same document, just create a new journal entry for the second signer with the same document name.  This is not rocket science!
 
Q.  Thumbprint area – do I need to have a thumbprint?
A.  Please educate you on your state law. Some states require thumbprints for particular documents and others don’t.  It is better to have a thumbprint just in case you are called into court.  Your court case might be faster (or not happen at all) if you have proof of the identity of the signer such as a thumbprint.

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November 18, 2011

Notarizing multi-page documents

Filed under: Loan Signing 101,SEO,Signing Tips,Ultra-Popular — Tags: , , , , , , , , , — admin @ 12:32 am

Issues with Notarizing Multipage Documents / Documents with multiple pages
 
Most notaries can barely function doing the simplest of simple notary jobs.  When confronted with anything harder than doing a simple Acknowledgment or Jurat signing where the signer has acceptable identification and can easily sign — will throw most notaries off guard. There are many situations where you need credible witnesses, subscribing witnesses, have a power of attorney signing, attorney in fact signing, or other issue which can become a snag to many notaries.  Multi-page documents (documents with multiple pages) seem easy to notarize, but are they really? There are issues, but is the notary you erroneously hired aware of these issues?
 
Page swapping after the fact
Most notaries think they are there to notarize signatures on documents, and that is it.  The bigger function of a notary is fraud deterance, and to identify the signer.  If a notary does the minimum of what their job description requires, they might be acting within the law, but are they really being helpful to their clients, or to society as a whole?  If a notary notarizes a ten page document or multiple page document, and the document custodian (whomever is in charge of the document after it is signed) decides that page four needs to be edited, then what? 
 
In some circumstances a corrupted signer or document custodian will substitute page four with a newly written page four.  He/she/they will unstaple the document, hopefully as cleanly as possible, remove page four, and add another very similar looking page four, and hope nobody notices.  If there are two signers to the document and both have a copy, then there is evidence of tampering, but what if you don’t have copies, or you lost your copies.  There is no way to prove that the document was tampered with other than the faulty looking stapling job which would make any judge say, “hmmmm” and raise his eyebrows (judges often have bushy eyebrows by the way).  
 
Should you have the notary come back?
One signer asked me to kindly give them a new notary certificate for the new page they were adding to an already notarized document. I told them that documents are notarized as a whole and that if you change even one word, that the whole thing needs to be re-notarized.  They didn’t like that since they had already paid a travel fee. I made them redraw the signature page too, since I wanted fresh signatures which reflected the fact that they were signing in agreement to the whole document.  All of my prudent behavior aroused tremendous resistance, “oh come on’s”, and other complaining. The law is the law.  If you want to screw around, you shouldn’t be hiring a notary in the first place, right?  So, I made them start all over again with a complete redraw despite their complaining, and we notarized everything, and it was kosher.
 
Safeguards against fraud
In the case of multipage documents, the most effective way to safeguard against fraud (page-switching) is to emboss all pages of every document notarize.  If someone protests your embossing, tell them that you don’t have TIME to go to court after they do something fraudulent with their document, therefor, you take precautions against any tampering by embossing every page.  It is hard to forge an embosser, and hard to use it in the same way a notary uses it.  It might be easy to spot a false notarization which is important to get you out of court fast.  Imagine how many hundreds you would lose every day you were hijacked by a court case!
 
Initialing changes?
Initialing is a technology that I don’t like much.  If someone adds a new page to a multipage document, the initials “prove” that all signers agree to it, and safeguard against page-switching after the fact.  But, initials lack the same characteristics as a well established signature.  People don’t initial that much, and it is easy to forge them without detection. I think that initialing is better than nothing, but a poor safeguard against fraud.  I feel that if a signer gives a thumbprint on all pages of a document, that is much harder to forge.  I see no harm in signing all pages of a document. That is better than initialing since a signature is usually consistant (more or less) each time you sign.  Initials might not be, and it is yet another mark with it’s own characteristics.
 
Notarizing multiple pages without initials?
Not all multiple page documents require initials.  It is up to the company who drew the documents if they want initials or not. There is no law requiring that documents have initials, but Deeds of Trusts and Mortgages normally have places for the borrowers to initial at the bottom of all pages.
 
Forging initials
It is common for Title companies to forge someone’s initials on Deeds if the signer forgets to initial.  Forged initials on date changes are common as well.  Illegally forging someone’s initials on a name change happens all the time.  It is very hard to know for sure if an initial is forged, but the people who illegally forge signatures, are usually overworked clerks in large companies who have very little time — and they are sloppy how they forge initials. The forged initials don’t look at all like the real ones.  These workers need to know that they might have to go to jail for a crime like forgery, so they should refuse to do it!

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November 16, 2011

Thumbprint Taking – Step by Step

Filed under: Technical & Legal — Tags: , , , , , , — admin @ 2:09 am

Thumbprint taking and fingerprinting – step by step
The art of fingerprinting or thumbprint taking is not rocket science, and anyone can perform this art.  The older way of doing fingerprinting or taking thumbprints was to use a form of ink and take a person’s fingers, one by one, and press them into the ink pad, and then make either a FLAT or ROLLED impression on a piece of paper.  Standardized fingerprint cards are what is/was acceptable to the FBI and DOJ (Department of Justice).  However, these days, live scan is the medium of choice for many. Fingerprint cards generally require rolled impressions, while journal entries require a flat thumb impression.
 
Livescan Fingerprinting
The beauty of live scan is that you can take each individual fingerprint as many times as you like, until you get a good, clear impression.  With fingerprint cards, if you goof just once, you have to start all over again with a new card.  Elderly people have unbelievably stiff arms and grab on for dear life when you try to roll their wrist around to take prints.  They apply such a force of resistance due to their terror about nothing, that you might have to take their fingerprints several times to get readable prints.  Live scan solves this problem.  The bigger question is that the organization you are submitting the fingerprints to is the one that gets to choose what medium they prefer for fingerprinting, and every organization has their own standards.
 
Journal Thumbprint Taking
In the old days, a type of ink that is hard to wash off was used for any type of thumbprinting ranging from booking criminals to taking journal thumbprints.  Now, an inkless substance can be used which leaves the appearance of ink on a piece of paper, but is easy to wash off a person’s hands. 

How to take a thumbprint
Taking a journal thumbprint is easy (unless someone has a stiff arm, and many people do), just take the right thumb, and hold it by it’s sides with your thumb and middle finger… then take your index finger and press down into your ink pad, and then press down onto the notary journal making a flat impression. It is easiest to have their thumb next to the edge of the table so the rest of their hand can go lower.  If the signer’s right thumb is not available, use their left thumb, and if the left thumb is not available, you can use a right finger. Just document whichever finger you used.  I had a client who’s hobby was experimenting with explosives in his apartment.  I had to use whichever finger was remaining in his case. There were not many choices by the way.

Fingerprinting step by step

I only know the old-school technique.  Take the person’s left hand, and roll each finger in the ink pad, one by one.  Then roll each finger on the fingerprint card.  Then, take the person’s right hand, and repeat the process.  Some cards require additional flat impressions of the thumbs.  For flat impressions, you can roll the thumb in the ink pad, but do not roll the thumb when printing — just hold the thumb above the card, and then press down quickly and firmly.  If you move too slowly, the person’s right or left hand might start to shake and blur your impression.
 
When you you need to be fingerprinted or have thumbprints taken?
If you are being notarized, then it is a good idea for security to have a thumbprint in the notary’s journal as evidence that the signer was really you (and not just pretending to be you).  Some states require journal thumbprints for particular documents.  Applications for professional licenses often require fingerprints.  To become a notary in California, you need to be fingerprinted.  Criminals generally need to be fingerprinted when they get booked or tagged for being a gang member.

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November 15, 2011

Where Can I find a Chinese Speaking Notary?

Filed under: Find a Notary,SEO — Tags: , , , , , , — admin @ 2:53 am

Where can I find a Chinese speaking notary public?

At 123notary.com, we receive all types of inquiries from many types of people all the time.  Where can I find Roger Smith, he is a notary in Louisiana?  He notarized a document for me a year ago, and now I can’t find him.  I refer the inquirer to the Louisiana notary division, since they have the addresses of all currently commissioned notaries in the state.  I also get a few people asking me where they can find a notary in India, or Thailand. I refer them to the embassy, or ask them to find an attorney in the country in question.  I give sensible advice, and steer people the right direction, but honestly, I don’t have a lot of information myself that is good for answering most of the questions I get.  The harder requests are requests that I would LIKE to be able to fulfill, but sometimes it’s hard. 
 
Where can I find a Chinese speaking notary?
123notary.com has many bilingual notaries. You can use the LANGUAGE FILTER on the top right of the search results page after you do a search by zip code. Many of our bilingual notaries are Chinese Speaking notaries, however, they are all spread out, and there are dialects too.  Someone who knows Min-Nan-Yu only might not be fluent in Hakka for example.  These are Southern dialects from Guang-Dong and Southern Fu-Jian by the way.  The more common dialects are Mandarin, Cantonese, and Taiwanese in American metros.  You might find many Cantonese speaking notaries in any big city, but we have relatively few advertising on our site.  You can do a search by zip code and then use the language filter on the upper right side of the page.  Try inputting the term Cantonese, and then try Chinese as a second search. See what happens.  I cannot guarantee results because people join our directory daily, and change their language information from time to time, and drop out from time to time as well. 
 
If you can’t find a Chinese speaking notary on 123notary…. then…
The document signer needs to speak the same language as the notary in California and many other states. As a practice, even if your state doesn’t require it, the signer should be able to communicate directly with the notary.  You could try the Chinese yellow pages, or ask around in your metro’s Chinatown. There will be plenty of Chinese speaking notaries, but they might not advertise much as their business might come from word of mouth or (peng-you tui-jian gao-su peng-you) as the case might be.
 
It is common for Chinese people who function mainly in Chinese to pick service providers who also speak their language.  However, this might not be a good idea.  If your English is “Good enough”, you might be better off with an English speaking notary who is really good at what they do, and who is familiar with commonly notarized affidavits and documents. Just my opinion. Choose the skill set before you choose the cultural affinity if you have a choice!

To find a Mandarin speaking notary, just look up Mandarin in the language filter on search results. To find a Taiwanese speaking notary, just look up Taiwanese in the language filter. To find a Cantonese speaking notary, just type the word Cantonese in the language filter in the upper right corner of the search result pages. Honestly, the word “Chinese” will give you much wider results than these dialect names, but in NYC or San Francisco, you might find the dialect of your choice!  “Zhu ni hao yun!”.

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November 14, 2011

Power of Attorney Signings

Filed under: Power of Attorney,SEO,Technical & Legal,Ultra-Popular — Tags: , , , , , , — admin @ 3:58 pm

Power of Attorney Notary Signings
 
It is common for notaries to get a job notarizing a signature of a grantor on a power of attorney document.  It is also common for a signer who is the attorney in fact to sign documents in their official capacity as an attorney in fact.  The problems is that most notaries haven’t a clue how to handle this type of common, yet critical situation. 
 
Types of powers of attorneys
First of all, as a notary public, you are not required to understand the contents of the document.  For an acknowledged signature, the signer should be named in the document and should sign it.  Other than that, you just need to be sure the signer understands the document, and you shouldn’t have any indication that the document is fraudulent (how would you know anyway?).  Their are banking powers of attorney, durable powers of attorney, health care powers of attorney, and living trusts which are a sort of power of attorney. There are other types too, but these are the most common ones.
 
What does a notary need to know about powers of attorney?
You need to know who a grantor and grantee is.  You need to know who an attorney in fact is (= the grantee).  You need to know how the attorney in fact signs a document.  You need to know that California notaries must take journal thumbprints when notarizing signatures on powers of attorney.
 
 
Is the form I am using acceptable?
Notaries may NOT recommend particular power of attorney forms, nor should they assist in filling them out.  The notary should look for blanks, and refuse to notarize if there are any blanks in the document.  It is not a crime for a notary to have blank standardized power of attorney forms in their briefcase, so long as they make it clear that they are not giving legal advice and not recommending the use of those forms.  You might tell the client that they should check with the document custodian (whomever they are submitting the documents to), to see what type of paperwork they will accept.  What is legal, and what is acceptable to the recipient are often two different things.
 
Banking power of attorney
Most banks have their own power of attorney form which is on card stock and leaves about half an inch to squeeze your two and a half inch wide notary seal (how educated of them!).  If asked to notarize a banking power of attorney, just do what the client asks within the limits of the law, but for your knowledge, you should be aware that the bank may not accept a power of attorney that they didn’t draft and that the client might be advised to check with the bank before doing any business with a notary public. 
 
How does an attorney in fact sign?
The person who has been granted special powers from a power of attorney is the grantee or attorney in fact.  They can sign in two ways that I am aware of.  If the grantor is John Doe, and the attorney in fact is Sally Smith, here is how Sally signs on behalf of John.
(1)  John Doe, by Sally Smith, his attorney in fact
(2) Sally Smith, as attorney in fact for John Doe
 
Power of attorney documents at a loan signing
Whether or not the loan will be accepted is hard to say.  However, many lenders will require a copy of the power of attorney to accompany the documents. 
 
Acknowledgment Forms
Some acknowledgment forms allow the notary to identify the capacity of the signer.  One of the standard check boxes on an acknowledgment certificate form is for attorney in fact, and other corporate offices are sometimes mentioned as well.

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November 13, 2011

Can a notary witness a will or notarize one?

Filed under: Popular on Facebook (A little),Popular Overall 2011,SEO,Technical & Legal,Ultra-Popular,Witnessing — Tags: , , , , , , , , — admin @ 4:44 am

Can a notary act as a witness to a will — Can a notary notarize a will?
 
This is a very difficult topic to write about because notary law differs from state to state, and notary laws change over time as well in particular states.  As a general rule, a notary public is discouraged from notarizing signatures on any will.  If you are a New York Notary Public, you should probably avoid notarizing signatures on Wills under any circumstance since standards for what constitutes unauthorized practice of law in New York State for a New York Notary Public are more stringent than many other states.  I heard that notarizing a Will as a New York Notary might be considered practicing law. However, in many states, a notary can notarize signatures on a will — even though it would be meaningless.  Utah notaries are encouraged to notarize signatures on Wills if asked to since it is illegal to turn down any lawful request for a notarization. But, what about acting as a witness?
 
A notary can act as a witness, but in their capacity as an individual.
Unless your state prohibits a notary from being a witness (  have never heard of such a restriction, but it could exist), a notary can be a witness.  A Delaware Notary Public can act as a witness as an official Delaware notary act and charge a prescribed maximum notary fee.  However, in other states, a notary public may act as a witness, but in their capacity as an individual — or at least it would not be done as an official notary act recognized by their state.  On the other hand, the notary acting as a witness can also indicate that they are a commissioned notary in their state which adds credibility.  Notaries are screened before being commissioned in their respective state which makes them perhaps more credible than an average citizen (you would think).
 
Unauthorized practice of law — what does this mean?
I am not an attorney, and can not give any meaningful tutorials on what unauthorized practice of law constitutes.  As a non-attorney notary, you should avoid giving any type of advice about what type of notarization to get, what type of legal paperwork to get, or how to fill it out.  You should not draft legal documents in any state (documents to be used in court or submitted to a judge or used in conjunction with any court case).  You might be able to assist in drafting non-legal documents in many states that are to be notarized such as simple affidavits, etc.  A Florida notary public is strongly advised against helping drafting any type of documents since laws in their state are more strict about what type of advice a notary may give.  In short, each state has a different idea of what “UPL” means.  To play it safe, please read up on what your state notary laws are, and don’t draft legal documents, and don’t give advice on legal matters.
 
How many witnesses do you need for a Will?
It is standard in California, New York, Ohio, Arizona,  and  most other states for a Will to require two witness signatures. I read on findlaw.com that Vermont requires three witnesses to sign a Will.  Witnesses must be 18 years of age or older in any state.  A notary can be one of those witnesses.
 
How do you document witnesses?
It is not a crime for a notary public to notarize the signatures of witnesses on a will, although it is improper to notarize the signature of the principal. It is always helpful for the witnesses to print their name, give their address and a phone number as documentation. You never know when they might need to be contacted.  By having witnesses’ signatures notarized, the notary has a record of the identification of the witnesses, and a prudent notary would also record their adress and maybe even their contact information.
 
What is it like to act as a witness to a will?
I have done this many times.  It is a very boring, but traditional formal proceeding. It is common to have an attorney present, a few neighbors or friends, and perhaps even a bottle of wine (for after the signing).  Everyone commonly gathers around the dining room table. Once everyone is there, then the attorney might give a quick speech, and then the principal signer signs, and then the witnesses sign in their appointed places.  Afterwards, there is lots of chatting generally. Or, you might meet in the conference room of a law office and do it there (less fun).  Many people consider a notary to be a better quality witness since they deal with signing documents as a profession and they take signatures more seriously, so I got many gigs as a witness.  I took it very seriously and watched very intently every time a signer signed!
 
You might also like:
 
Information about Credible Witnesses
 
Can a notary be a witness?
 
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November 12, 2011

Texas Notary Law and Journal Thumbprints

Filed under: Texas Notary — Tags: , , , , , , , , , , — admin @ 9:27 am

Notary Public Texas: Texas Notary Public Law and Journal Thumbprints
 
I am a person who likes to take precautions. Life is more fun when you have less disasters, right? Disasters are more likely to happen when you don’t take precautions, right?  Today, I was visiting our Facebook profile, which I generally do every day or two.  I notice an interesting response to one of my posts about how essential journal thumbprints are for your safety as a notary public in any state!  However, one lady wrote that the National Notary Association now counsels Texas Notary Public members (Texas notaries who are clients of the National Notary Association) NOT to take journal thumbprints due to house bill 3186.  This notary claims that the mentioned bill states that a biometric identifier (such as thumbprints captured for a commercial purpose may be disclosed only under certain circumstances and must destroyed within a certain amount of time.
 
I am not sure if I agree with the National Notary Association on this one.  But, on the other hand I am not an attorney and don’t give legal advice. I will say this though:
 
(1) If you are a notary in Texas, or any other state, and one of your signers is accused of identity fraud or forging a signature, without a thumbprint, you can not prove that they were the one that really appeared before you.  Picture identification is really easy to fake.  China has many experts who will sell you a professionally made fake for US$200.  You might end up in court for a week because you didn’t have a journal thumbprint.
 
(2) Thumbprints in journals are NOT taken for commercial purposes, but are part of a notary public’s official job in their official capacity. Notaries are offering a service which they may or may not be charging for, and the thumbprint is only a security measure used in conjunction with the service. Nobody is “Selling” a thumbprint in the notary public business. 
 
(3) A notary journal is the EXCLUSIVE property of the notary in Texas and in any other state that allows Journals.  Only people making inquiries about particular notarizations may  have access to a particular journal entry and this qualifies as disclosure only under certain circumstances.
 
(4) As far as destroying journal thumbprints, that is up to the county recorder who receives your journals at the end of your term. It is THEIR property when you end your term, and up to them what to do with the thumbprints.  Keeping thumbprint records during your term seems legal unless a specific law says you can’t keep them this long.  The thumbprints are to protect the public from fraud and are not used frivolously or shared with the public in any way.
 
In any case, if you are a Texas notary public, you need to be familiar with the notary laws of Texas, and that is your responsibility. Please take my commentary as opinions, because that is exactly what they are.

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November 11, 2011

Notary Journal Thumbprints – they can save your neck!

Filed under: Technical & Legal — Tags: , , , , , , , , , , — admin @ 8:23 am

Notary Journal Thumbprints
 
How adamant are you about taking journal thumbprints?  As a California notary public, you are required to take notary journal thumbprints for deeds effecting real property and power of attorney documents.  Notary thumbprint taking is a serious business and can keep you out of court.
 
Taking precautions as a notary
I have written other blog posts about precautions that notaries can take.  Notaries can use an inkless embosser in addition to an inked seal.  They can emboss every page of every document they ever notarize as a precaution against page switching which is a common crime that takes place after multi-page documents have been notarized. Taking a precaution of taking journal thumbprints is smart also, and can keep you out of court.
 
Suspicion of identity fraud
Let’s say that you notarized a signature on a document and that someone involved in the transaction suspects identity fraud.  The first thing they will do is to track down the notary who notarized the signature on the document and start asking questions about the signer. You will not remember the signer well, unless you took notes in your journal about what they looked like, how they acted, how old they were, etc.  But, if you have a thumbprint, that is absolute proof of the signer’s identity.  No two thumbprints are identical, and you can’t fake a thumbprint (forge a thumbprint) in front of a notary.
 
The investigation ended once I produced a thumbprint
If someone questions you about a particular notarization, and you say you have a journal thumbprint, the investigation might just end right there.  It happened to me as a California notary public during my first four year term. I saved myself from a potentially long visit to court.  I got a phone call from someone investigating fraud.  Someone had cheated some elderly people whom I had notarized.  One of the documents used to allegedly cheat them had been notarized by myself in my capacity as a California notary public. Since I had a journal thumbprint, the identity of the signers was no longer in question.  The person said they had no further questions the minute I told them I had a thumbprint. They didn’t even want a copy of the journal entry with the thumbprint.
 
Weak thumbprints with the elderly
The flaw of thumbprints are that elderly people often lose the tread on their fingers.  I am talking about really old people, perhaps in their eighties or nineties.  There is nothing you can do in that case, but at least you have a print, no matter how featureless it is. Personally, with signers over eighty, I recommend a retinal scan, which is not possible for a notary to take in 2011, but maybe in 2015… we can always hope.
 
Regardless of your state of commission
Whether you are a Florida notary public, a California notary, or notary in another state, if you are notarizing signatures on a power of attorney or real estate deeds, get a journal thumbprint whether it is required by law or not. That thumbprint could save your neck.  It is not a bad idea to require signers to give thumbprints for all documents and even oaths or affirmations.  It keeps them honest.  The minute they start making excuses why they shouldn’t have to be thumbprinted, that is suspicious behavior, and you might want to refuse service to them.
 
Bring wipes!
Don’t forget to bring wet naps or wipes of some sort.  It is polite to have something for the signer to wipe their hands off with.  Even with the NNA’s inkless thumbprinter which is a product I always had several backups in stock of, you should offer a wipe.  I strongly recommend having at least one inkless thumbprinter in your notary carry all bag!

Please visit our notary search page to see our notary public California page and notary public Florida page!

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November 10, 2011

Notary Procedure for Affidavit of Support Documents

Filed under: Affidavits,SEO,Technical & Legal — Tags: , , , — admin @ 9:05 am

Affidavit of Support and the Notary Procedure
 
Notaries who are not immigration experts are strictly forbidden from giving any type of advice regarding immigration.  However, it is common for individuals going through the immigration process to have documents that need to be notarized by a state commissioned notary public.  The Affidavit of Support is the most commonly notarized immigration document.  Any currently commissioned notary with jurisdiction in your state can notarize your signature on that document. There is no such thing as an Immigration notary, or Immigration notariation, but any notary can notarize signatures on basic immigration documents.
 
How do I get an Affidavit of Support notarized?
Just for the record, you get a signature notarized, not a document.  Affidavits of support typically require a Jurat certificate or the type of notarization known as a Jurat.  This requires a quick oath to be given to the signer by the notary public.  The oath only takes half a minute.  The notary would need to check the identification of the signer (this applies to most states).  The notary public would record the identification document’s information in their journal (most states require a journal). 
 
Identification
The ID could be a current drivers license, passport, state ID card.  The ID should be a current government issued photo ID with a physical description and signature.  Green cards are typically not allowed as identification to be notarized.  Foreign driver’s licenses are generally okay, and passports are acceptable.  Make sure to check with the notary you are going to use to see if your choice of identification will be okay.  Make sure your identification is not expired.  Some notaries will allow the use of credible witnesses as well.
 
The Oath
Have you ever sworn under oath before?  Its easy. Just raise your right hand and say, “I do”. It’s the notary’s job to ask you to raise your right hand, and its their job to create some wording for the oath too.  They might say, “Do you solemnly swear that the contents of this document are true and correct and that you agree to and will abide by the conditions in this document?”.  Just don’t mumble when being given the oath.  Speak clearly please.
 
No English? 
If the signer doesn’t speak English, most states do NOT allow the use of a translator.  The signer must be able to speak directly with the notary public.  So, for example, if the signer speaks Spanish, just find a bilingual notary public who knows enough Spanish to be able to converse with the signer about the document and the signing. The bilingual notary doesn’t have to speak the language perfectly, but enough to communicate adequantely with the signer.
 
Immigration Advice
Do NOT ask a notary public for immigration advice, unless they have evidence that they are an immigration professional in some official capacity. Notaries are not allowed to give any type of legal advice.  Additionally, notaries can not draft legal documents, although many states allow them to draft less formal documents.
 
Where do I find a notary?
You can find a mobile notary on www.123notary.com, and there are bilingual notaries speaking almost every language on the planet from Arabic to Zulu.  Spanish is by far the most common foreign language for notaries to speak, but 123notary has many who speak all other types of languages.  If you want to find a notary office, try your local UPS store. They can be found on google.

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