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August 5, 2012

Power of Attorney and Verifying Capacity

Powers of Attorney and Verifying Capacity 

Recently, we had two notaries that had situations where they felt obligated to stick their head into other people’s business.  Both notaries were doing signings for an attorney in fact, and both notaries wanted to see the power of attorney to verify if the signer indeed had that capacity.  But, this seems to be going above and beyond the job of a notary public.  A notary’s job is to identify a signer, and make sure the signer really signed the document, keep a journal, and fill out certificate forms.
 
So, does the notary need to verify the capacity of the signer: i.e. as an attorney in fact?  In California, notaries are prohibited from identifying a signer’s capacity.  But, what about other states?  I have no idea!  Maybe our readers can comment. We will have a facebook discussion on this topic as well to stimulate dialogue.
 
I feel it is only the notary’s job to notarize the signature of the signer, and acknowledge that that particular person signed a document.  If that person claims to be an attorney in fact, that is their business. Whether the signature on the notarized document will be recognized in court as an official siguature of an attorney in fact is another story, especially if the “missing” power of attorney form doesn’t show up. I saw let the courts worry about authorization, it is beyond your job as a notary!

Tweets:
(1) When you notarize for an Attorney in Fact, is it your job to verify the signer’s capacity?
(2) It’s only the notary’s job 2identify the signer, not to determine if they’re authorized to sign in a particular capacity.

You might also like:

POA — proceed on alert
http://blog.123notary.com/?p=14661

Notarized Power of Attorney
http://blog.123notary.com/?p=9862

Parties involved in a Power of Attorney
http://blog.123notary.com/?p=21439

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June 20, 2013

Optional info on Acknowledgment Certificate

So, you are a notary? But:

(1) Do you fill out your certificates thoroughly?

(2) Do you know what the optional or additional information section of the acknowledgment certificate is?

(3) Do you know what a certificate is?

(4) Do you know what the Acknowledgment wording is in your state?

(5) Do you cross out the his/her/their or (s) in capacity(s)?

Most notaries don’t do their cross outs which is illegal to skip. And the Secretary of State is too busy to catch up with all of the notaries in their respective state.

What is in the optional information section, and should it be optional?
(1) Number of pages in the document

(2) Document name

(3) Document date

(4) Capacity of signer

(5) Other signers who signed the document but, were not notarized on that notarization

(6) Right thumbprint of signer

Why is this important?
There are a lot of frauds out there. California law requires notaries to STAPLE (legally, the word used is attach) the notary certificate to the corresponding document. But, do you know how many people detach the staple? Title companies complained about my staples because they detached everything I stapled. They are inviting fraud if you ask me. It looks tampered with if they detach documents. Very sketchy. If I were the Secretary of State, I would investigate anyone who unstapled a notary document and might have them arrested for suspected fraud!

If a fraud wants to take an Acknowledgment OFF one document and attach it to another, it will be hard work if the optional information is all filled out. The number of pages would have to measure up. The document date would need to correspond. The Document name would have to be consistent as well. Most frauds would have not go that far, and might make a mistake matching all of the statistics since they were not trained well (probably). But, imagine if you submit an Acknowledgment certificate that has none of this information? You could conceivably reattach it to ANY document that the signer signed — an invitation for others to commit fraud.

Therefor, I believe that it should be required by law in all states to fill in the optional information section — hence renaming it the required additional information section. Be square and deter fraud today!

You might also like:

10 tight points on loose certificates
http://blog.123notary.com/?p=15449

Acknowledgment FAQ
http://blog.123notary.com/?p=21331

Basic Notary Acts — Acknowledgments
http://blog.123notary.com/?p=19500

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January 28, 2019

Can a Notary Act as a Witness?

Can a Notary act as a witness? Yes.
Can a notary be a witness? Yes.

However, there are many types if witnessing that a Notary could engage in.

1. Witnessing an Acknowledged signature
A notary could witness a signature as part of an Acknowledgment in certain states. Most states do not require the Notary to watch the signer sign for an Acknowledged signature, but six states do.

2. Witnessing as an official notary act
Witnessing is an official notarial act in a handful of states. Notaries can get paid a fixed maximum state mandated notary fee for witnessing a signature. Delaware Notary statutes allow this as an official act, other states do not.

3. Witnessing in their individual capacity
Witnessing a document signing as an unofficial act can be done by any person in sound mind who is eighteen years of age or older. However, many prefer to hire a Notary Public to do this in their capacity as an individual simply because people prefer to have a Notary deal with issues relating to signing documents. How much can a notary charge for being a witness? There is no set charge except perhaps in Delaware.

4. Witnessing a Will
Wills can be notarized, however, most Notaries are advised that it is not proper to notarize a will without written instructions from an Attorney. Living Wills are a different story as those function more similarly to a specialized medical power of attorney. Many people like to have a Notary be one of the two witnesses to a will signing. In Vermont I heard that they require three witnesses. For mafia signings regardless of what state it takes place in, they normally prefer — “no witnesses.”

5. Credible Witnesses / Credible Identifying Witnesses
A Notary cannot act as a credible witness if they are notarizing a document for someone. However, they can use the testimonies of one or two credible witnesses depending on the situation in most states. You can learn more about credible witnesses on our blog.

6. What is a subscribing witness?
Notaries typically use subscribing witnesses for Proof of Execution signings and Signature by X or Signature by Mark signings where the signer cannot sign their name. Subscribing means signing, so a subscribing witness is one who witnesses a person signing their name.

7. Which Notary act requires witnessing?
A Jurat requires the signer to sign in the physical presence of the Notary Public as well as swearing or affirming under Oath to the truthfulness of the content of the document in the presence of the Notary. The Notary Public should be watching when the signature is made.

8. Witnessing crimes
It is possible that a Notary might witness a crime during their work hours. It is possible they might observe someone being forced to sign under duress, or even someone being kidnapped. Notaries are often asked to go to jails to notarize criminals, but the criminal would not be in the act of a crime in jail — probably. Signers might ask the notary to falsify a date, and asking the notary to engage in fraud is a crime in itself in many states.

You might also like:

Credible Witnesses — the ins and outs
http://blog.123notary.com/?p=19634

Subscribing witnesses explained
http://blog.123notary.com/?p=16707

Witnessing the intake forms in Notary Heaven
http://blog.123notary.com/?p=8832

Types of witnesses in the Notary profession
http://blog.123notary.com/?p=5664

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January 24, 2019

California Acknowledgment

The 2018 California Acknowledgment is a little different than before. Please reference this link:
http://notary.cdn.sos.ca.gov/forms/notary-ack.pdf

Above the venue (county & state), there is a box that says, “A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.”

Note:
The meaning of this statement is that the Notary’s job is to identify the signer properly. Additionally, the Notary certifies that the signer appeared before the Notary on a particular date. It is not the Notary’s right, responsibility or job to verify, ascertain or know if the corresponding document is true or not. However, if the Notary knows the document is false, then he/she should contact the state notary division and check the handbook to see if you are allowed to notarize documents that you know are fake. Last I heard, a California Notary should not notarize documents that are not truthful, but that information could be outdated.

State of California
County of _________________

On (date) before me, (name of notary or officer) personally appeared (name(s) of signer(s)) who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ______________________________ (Seal)

Note:
It is considered perjury if the Notary enters false information on a certificate. This applies more vigorously to Jurat certificates. It common for Notaries to claim in writing that they administered an Oath when they either did not administer an Oath, or did not administer a relevant Oath based on the signer swearing to the truthfulness of the document. A California Notary may charge $15 for executing an Acknowledgment.

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You might also like:

The name on the ID vs. the Acknowledgment, Document and Signature
http://blog.123notary.com/?p=20186

What’s your sign? A guide to spotting fake ID’s.
http://blog.123notary.com/?p=19638

Credible Witnesses – the ins and outs
http://blog.123notary.com/?p=19634

When do I need to use a California all purpose Acknowledgment?
http://blog.123notary.com/?p=20133

California Notary Acknowledgment and Jurat Information
http://www.123notary.com/California/acknowledgment_jurat.asp

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December 30, 2018

When are you required by law to do Oaths?

As we all know, state notary laws differ from state to state. Since I live in California, it is difficult for me to know what all the Notary laws are in other states. Sometimes I create a chart as a cheat sheet to know which states require certain things and which ones don’t. However, every state I have read about (I read handbooks for all states so you will have a problem fooling me — they are all online except for NC if I remember correctly) requires Oaths and has Oaths in the handbook as an official duty of a Notary Public. So, I am going to write some quiz pointers about Oaths below.

1. Oaths are an official Notary act in all states.
If I am wrong, show me your state notary handbook and show me the omission of Oaths.

2. Affirmations are an official Notary act in almost all states…
Or perhaps, now they are in all states. Not sure…

3. If you see the words — SUBSCRIBED AND SWORN (or affirmed) TO BEFORE ME BY…
This is Oath documentation verbiage. It is NOT the Oath itself, but the documentation that you administered an Oath or perhaps Affirmation. If you sign a form stating the above verbiage and do not administer an Oath, you have just committed fraud on a Notarial certificate which is a crime. I am not sure what type of crime it is, but it might be fraud, or even perjury which is a Federal crime punishable by up to five years in jail per infraction. Gulp. Please consult an Attorney to see what type of crime he/she thinks it is as my opinion is a layperson opinion and not legal advice.

4. My state doesn’t require Oaths.
I hear this every day. Your state DOES require Oaths, however your state doesn’t require you to read the handbook that says you have Oaths as an official duty. Moreover, your state doesn’t explain how to administer an Oath or WHEN to administer an Oath. I can blame your state, but this is also your fault if you go through life engaging in criminal negligence because you did not bother to learn when and how to administer Oaths.

5. We don’t do Oaths in my state.
Some people claim that Oaths might be an official Notary act in their state, but that it is never done. This is also not true. Carmen (who does sales for 123notary) does loan signings for out of state documents all the time and every single package has at least one Oath that is part of a JURAT.

6. If you see the word AFFIDAVIT in the title of a document.
The word Affidavit customarily means that the document is to be sworn to before a state official commissioned with the capacity to administer Oaths such as a Judge, Notary Public, Justice of the Peace, etc. If you see the word Affidavit, it is possible, although unlikely that you will execute an Acknowledged signature on that form. 99% or more of the time you will execute a Jurat, and Jurats by definition require the signer to sign (subscribe) in front of you and swear under Oath as to the truthfulness of the document.

7. Are you swearing to the identity of the signer, the signature or the truthfulness of the document.
Many Notaries administer Oaths to me over the phone on quizzes and make me repeat my name several times. However, the Oath for a document is regarding whether or not the document is true or not, and NOT to my identity. However, if the document makes me specifically swear to my name or name variations then I would have to swear to my identity. Additionally, an Oath on a document does not require the Affiant (signer) to swear to whether or not they signed it or whether or not they signed it on their own free will unless their state specifically requires it or unless the cheat sheet for the Oath requires it. As a general rule, an Oath on a document must be regarding the truthfulness of the document as the primary focus. Any other considerations are secondary or perhaps not necessary or perhaps should be left out.

8. Why Oath cheat sheets are dangerous
If you do not know the legal requirements of an Oath on a document in your state, you might not administer a passable Oath if you read off the cheat sheet. In my opinion which is based on logic, but not on law, an Oath on a document must be about the truthfulness of the document. If your cheat sheet for an Oath says, “Do you solemnly swear you signed this document.” — that would lead to an incomplete notarization because you never swore to the truthfulness of the document.

9. I don’t do Oaths, I only do Refinances.
Newsflash — Every refinance I have ever seen has at least one Oath. If there is an Affidavit such as a signature affidavit, identity affidavit, or occupancy affidavit, customarily there will be an Oath. If you do Refinances, you are required to do Oaths as part of fulfilling the statements on the Jurat certificate(s).

10. Oaths on oral statements or without Jurats
You might be asked to give an Oath on an oral statement. There might not be any paperwork involved other than your journal. You need to read up on how to do this. You might also be asked to give an Oath on a document that does not have a Jurat. You would have to ad-lib to come up with verbiage so practice on random documents to get the feel of it.

11. Remote court attendance.
Florida state allows certain witnesses to appear in court by phone. A Notary must swear them in from their remote location. This type of Oath requires the Notary to look at their ID, read it to the judge and do the TV court Oath of how you swear to tell the truth, whole truth and nothing but the truth, so help you God.

12. Penalties for wrong or omitted Oaths.
Notaries rarely get in trouble for omitting a required Oath or refusing to administer an Oath. But, there are times when they do. Here are the things that could happen to you. Why take chances? It is like leaving your door unlocked.

(a.) REVOKED COMMISSION — Your commission could be revoked. I heard of several Notaries in Oklahoma who did not administer Oaths on loan documents.

(b.) OVERTURNED LOANS — The loan that had documents with required Oaths could be overturned by a Judge if they find out that the Notary did not administer an Oath.

(c.) GETTING SUED — The Notary could get sued by the Lender because there will be serious financial damages for the Lender because the Notary omitted a legally required Oath. Damages might be $20,000 or more if you get caught. People don’t get caught often — but when they do…

(d.) FINES — Certain states fine Notaries for misconduct and omissions. Failing to administer a required Oath in California used to have a $750 fine per incident. Now, it might be $1500. I am not sure of the exact fine, but it should be in that neighborhood.

(e.) JAIL — I have heard, and this may or may not be true, that making a false statement about an Oath on a certificate is perjury. The penalty for perjury is a jail sentence of up to five years per incident. So, you could end up in jail if the Feds or your state start checking up on Notaries to see if they are administering Oaths. They are not checking up now, but they could start any time.

(f.) LOSE LISTING — 123notary sometimes removes people for disciplinary reasons. If we find out that you do not obey Notary laws, we normally steer you to some educational materials. But, if you have a complete disregard for law, order, and common decency, you could lose your listing. We normally as a handful of Notary questions and will accept a very low average since most Notaries do not know their stuff. However, if you score under 50% on our quiz whether oral or written, you will most likely be in trouble with us. Although we are not commissioned to enforce laws, I do enforce who I list and that is my right and authority as owner of this site.

SUMMARY
Although Notaries only get in trouble for not administering an Oath once in a blue moon, it is illegal not to fulfill your duties as a Notary Public, and it only takes minutes to read up on when and how to administer Oaths. There is no reason for this type of blatant negligence and criminal behavior. So, please become an expert at administering Oaths. Your first step should be to read your state handbook and see what they say about Oaths. They probably do not do a complete job of teaching it which is part of the problem. The NNA and 123notary have materials as well, and you could consult an Attorney. Although Oath procedure is not taught properly by the states (not even California) you are still legally required to give Oaths and give logical and correct sounding Oaths.

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You might also like:

Should you use book wording for Oaths or improvise?
http://blog.123notary.com/?p=19660

Airline meals verses Notary Oaths & Affirmations
http://blog.123notary.com/?p=19549

Oaths – How Notaries completely screw them up!
http://blog.123notary.com/?p=19369

Oaths and the art if improvisation
http://blog.123notary.com/?p=19367

Notary Public 101 – Oaths, Affirmations, Jurats & Acknowledgments
http://blog.123notary.com/?p=19500

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December 24, 2018

Acknowledgment FAQ

Filed under: Notary Acts & Certificates — admin @ 9:39 am

What is an Acknowledgment? Or, should I say, what is a Notary Acknowledgment or Notarized Acknowledgment? Why is it missing the “e” after “g”? Is that a typo, and should it be spelled Acknowledgement? No, it is not a typo.

Notaries commissioned in the various fifty states have a variety of Notary acts that they may perform. Some are common ones that are practices in virtually every state, although they sometimes have name variations and sometimes the rules for these acts can change slightly from state to state as well.

Common Notary acts that are almost completely universal include:

Acknowledgments — an act where the signer acknowledges having sign a document and acknowledges in the physical presence of the notary public, but does not have to sign in front of the Notary except in a handful of states (it’s complicated).

Jurats — an act where the signer or “affiant” must sign the document in the physical presence of the Notary Public as well as swear or affirm under the penalty of perjury to the truthfulness of the content of the document.

Oaths — a purely verbal act where the affiant must swear under Oath under God to the truthfulness of an oral or written statement.

Affirmations — a purely verbal act where the affiant must affirm under Oath on their honor to the truthfulness of an oral or written statement. Please note that Oaths and Affirmations are not the same act, but can be used interchangeably and carry the same legal weight and significance.

How does a signer Acknowledge their signature?
Does the signer say, “I hereby proclaim that I, the party of the first part, the signing party withstanding , have signed the foregoing instrument herein, and thereto, and therefor acknowledge the same in my capacity as an individual so-on and so forth.” The truth of the matter is that you can simply place the signed document in front of the Notary Public (in most states, exceptions apply) and ask him if he/she can notarized it with an Acknowledgment, or you can just say, “I signed this, please notarize it.”

What are the requirements for Acknowledgment wording or Acknowledgment verbiage?
All states require some sort of Acknowledgment verbiage. The requirements differ from state to state. Many states require certain components or facts to be covered in the wording while others might require exact state specific wording. It is best to ask an Attorney what wording is necessary in your case. Many Notaries do not carry pads of Acknowledgments with them (although they should) and it is up to you to make sure that notarial wording is either embedded in the document or attached on a loose certificate that is stapled to the document.

Who can perform a Notary Acknowledgment?
As a general rule, a Judge, Notary, Justice of the Peace, and perhaps a few other legal professions may execute Acknowledgments. When in doubt, ask an Attorney for a state specific answer.

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ACKNOWLEDGMENTS
When I studied to be a Notary Public, my teacher said you Acknowledge a signature, Execute a Jurat and Administer an Oath. This is not true. The Notary is not the one who acknowledges signatures. The SIGNER acknowledges the signature and then the Notary CERTIFIES that the signer acknowledged the signature by virtue of filling out an Acknowledgment Certificate. Here are some basics on Acknowledgments.

1. The signer acknowledges having signed the particular document.

2. The signer must physically personally appear before the Notary for such an act.

3. The signer does NOT have to sign before the Notary according to most if not all states such as AK, IA, SC, SD, VT, and WV. Lenders might require the borrower to sign in the presence of the Notary, but that is a particular Lender’s standard and not necessarily a state standard or even a best practice.

4. The Notary must positively identify the signer using identification documents acceptable to their state which normally include Drivers Licenses, State issued identification photo ID’s, Passports, and Military ID’s. Other ID might be accepted on a state by state basis. You can look that up in your handbook. Also, see our section on identification.

5. The Notary should ideally keep a journal entry of all Notarial acts even if their state does not require this.

6. There should be Acknowledgment wording appropriate or acceptable to your state inscribed within the document, or you can attach a loose acknowledgment form with a staple.

7. After you fill out the certificate form, you sign and stamp the page (some states allow you to write in your seal information without a stamp.) Make sure your stamp is clear and not smudgy otherwise the county recorder has the right to reject the Notarization.

8. Note — some states require the Notary to ask the signer to attest to the fact that they signed the document in their own free will. Please be aware if your state has any unusual requirements or special wording on forms.

9. A California Notary faces many restrictions as to what type of out of state forms they can use. Please check the California Notary Handbook to see what you can accept and what you can’t otherwise you could get in trouble particularly if it is a recorded document.

10. There is an optional and additional information section in Acknowledgments which helps identify the document that the certificate corresponds to. This includes the document name, document date, number of pages, and other pertinent information.

Resources

Basic Notary Acts — Acknowledgments
http://blog.123notary.com/?p=19500

Acknowledgment vs. Acknowledgement
http://grammarist.com/spelling/acknowledgment-acknowledgement/

Legal definition of Acknowledgment (does not necessarily apply to notary profession)
https://legal-dictionary.thefreedictionary.com/acknowledgment

Can you send a loose Acknowledgment?
http://blog.123notary.com/?p=16168

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September 6, 2018

UPL — Unauthorized Practice of Law in the Notary Profession

Unauthorized practice of law… what does this phrase really mean? The sad truth is that this concept is widely misunderstood, and differs from state to state. The definition of UPL (not UPS) is generally arbitrary and is often set by bar associations set on protecting the financial interests of their Attorneys who don’t want any unnecessary competition in the legal services field. So, one could say that Attorneys as a group are engaged in a form of corruption and using the law to enforce standards that serve no purpose other than to eliminate competition (sounds like the mafia). Instead of burying you in cement, a bar association can investigate a person suspected of UPL, and sue them or perhaps fine them for huge mounts of money leaving the Notary essentially financially broken.

Case Study
One of the Notaries listed on our site lost or almost lost (forgot the story as it was from a decade or more ago) $40,000 for doing a loan signing in a state where Notaries are not allowed to do such things.

Attorney States
In certain states that we refer to as Attorney States, only Attorneys are allowed to do loan signings. The premise is that by engaging in the facilitation of a loan signing, that you are making an unstated assertion that you have the same knowledge as a Mortgage Broker, Lender or Attorney and that you can explain the documents. This is simply not true. When a Notary goes to a loan signing, some Notaries do not explain any terms or documents while some do. In my opinion you should catch a Notary in the act explaining a legal term and then bust them. But, merely by facilitating the signing a loan in an Attorney state, a Notary can get busted.

States where Notaries are not supposed to facilitate the signing of loans include Georgia, South Carolina, Massachusetts and perhaps others. This information could be outdated and the interpretation of the rules is far beyond my capacity. However, many Notaries in all of these states advertise on 123notary claiming that they do signings. However, I have heard that they typically don’t do signings for properties that are in their state, but only for out of state properties. I have heard that this is still illegal, but I guess people are not getting caught. My word of advice is to consult an Attorney before doing something that could get you in trouble.

Notary unauthorized practice of law
As a general rule, drafting a legal document, giving legal advice, giving advice about a court case, giving advice about how to draft a legal document, or helping to interpret a legal document might be construed as unauthorized practice of law. However, I am not an Attorney and cannot say with any certainty or authority what constitutes UPL in any state. I am just relaying to you what I have read over the years. Additionally, explaining the terms of a loan or what certain mortgage terms mean might be considered UPL as well – once again, I am not sure, but you can ask an Attorney if you really want a definitive answer.

Choosing the Notary Act
As a Notary Public, it is the choice of the client or signer which type of Notary act they want. The Notary has the right to explain the various Notary acts to them and the rules that apply, but the Notary cannot choose for them. Under many circumstances there might only be one particular Notary act that the Notary would legally be able to perform. In such a case, the Notary should explain the circumstances, how to change the circumstances and ask if the signer wants to proceed as is.

It is common for Notaries while administering Jurats to automatically perform an Affirmation because they are afraid to offend people by administering an Oath. First of all the Notary is required to give the signer a choice as to which Notary act they want to have performed. Second, many people might be offended by Affirmations more than by Oaths. However, I can state with definitiveness that dogs prefer Affirmations.

Drawing in a Signature Line
It used to be common in loan signings for a document to have no signature line, yet have an instruction that it must be notarized. You cannot notarize a document without a signature, and how can you sign without a signature line? If the borrower draws in the line, that is their business, but if the Notary does it, are they practicing law?

Oregon Standards
I have heard that in Oregon, a Notary may not cross anything out on a Notary certificate, nor may they attach a new Notary certificate. But actions would be considered practicing law there as far a I know in my layperson capacity.

Summary
Unauthorized Practice of Law is a crime and is a very wishy-washy state-specific convoluted subject. Please ask an Attorney for a professional opinion on this subject if you are at all concerned.

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You might also like:

13 ways to get sued as a Notary
http://blog.123notary.com/?p=19614

10 risks to being a Mobile Notary Public
http://blog.123notary.com/?p=19459

Notary loses $4000 in legal fees because fraud adds name to notary certificate.
http://blog.123notary.com/?p=19477

5 books every notary should own and read
http://blog.123notary.com/?p=3668

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August 14, 2018

Title Companies: 123notary Certification – what you need to know about it.

Filed under: Uncategorized — Tags: — admin @ 10:54 am

What does 123notary Certification mean in 2018 and 2019? A letter to title companies.

123notary teaches, screens, and certifies Notaries on:
Notary Basics
Loan Documents
Unusual Scenarios (that can lead to damages)
Clear Communication
Following Directions

We go to this trouble to make your title company’s screening and hiring procedure for new additions to your roster more streamlined, and lessens the chance of serious legal complications in the long run due to improper notary work.

We know that many of you would like to hire better quality Notaries. Are our current certified members up to your standards for being a “good Notary,” and how much extra do you feel they merit per signing? Would it be too much trouble to call a handful, talk to them for a few minutes and size them up and see for yourself how much better you feel they are compared to an average signing agent?

Our 2002 through 2017 tested mainly on loan documents and a little bit on Notary procedure, but involved mostly online testing which was taken advantage of by Notaries who found ways to game the system. As of 2018, we cleaned up our certification, removing those who cannot demonstrate a certain level of still on oral & email quizzes to ensure reliability to your hiring parties. We reduced the quantity of certified members from about 1600 to about 160 and will continue to screen certified members every year or two for quality control purposes.

Our 14 point certification process generates Notaries who are generally polite, responsive, cooperative, and technically competent. I can go over our process in as much detail as you like, but first I would like to let you know that most notaries will not aggressively pursue education on their own. They will only study hard if those who hire them recommend, require, or offer preferential treatment to those that do.

If you have Notaries who you would like to send over who you use regularly who would benefit from a tune up — or those who are not good enough to put on your list due to a lack of basic knowledge, we are happy to tutor, train, or enroll them in one of our courses. This collaboration of our forces will benefit both of us and does not cost title companies a penny. Our work on 123notary is for the greater benefit of title companies. However, we charge the Notaries for advertising and education and never charge title companies for anything.

If you would like to see our sales literature, just visit our loan signing courses page on 123notary.com. If you like the reliability of our screening we would like it if you can endorse our certification. Additionally, a few dozen of our notaries have our elite certiifcation which is a much more refined version of our certification.

We would like referrals and endorsements from agencies and individuals who work at agencies that hire Notaries in exchange for us helping you to refine the quality of your signing agents.

THE CERTIFICATION PROCESS

a. 123notary certification starts with reading our educational materials. We have loan signing courses that we sell. We also have free Notary basics materials in our blog at Notary Public 101 which we are in the process of adding to our sold materials for the convenience of the buyer. However, that material on the blog is open to the public, so our students can see it at any time.

b. We also offer Q&A by email and even tutoring to those who want it. Sometimes the technical aspects of Notary procedure can be complicated and a one on one session can be the best way to learn.

c. Testing is done online, but also as a follow up by phone. Testing by phone is more reliable as a measuring stick as we can ask open ended questions, multiple choice, fill in the blank, etc. Additionally, we know that we have the correct entity taking the test and can adjust our questions to exactly what we want to ask. We can also more easily monitor how many times and when the person took the phone test than with online tests many people abuse the privilege and treat it more like a video game that they keep playing until they win.

KNOWLEDGE REQUIRED
The knowledge required to pass our test as of 2018 includes:

1. Notary Acts. We require Notaries to know when particular notary acts are used, how to explain these acts, and what the requirements of each basic act are including Acknowledgments, Jurats, Oaths, Affirmations and Proof of Execution. We do not teach other acts as they are uncommon and not necessary. We also require Notaries to know how to administer Oaths as they are required by law when executing a Jurat which is done on Affidavits as a matter of custom.

2. Notary Terminology. We require Notaries to know basic Notary terminology such as Venue, Affiant, Certificate, terms relating to Power of Attorney, etc.

3. Certificates. We go over how to fill in the additional and optional information in certificates which deters the fraudulent as well as accidental swapping of certificates to other documents.

4. Journals. We teach prudent journal entry procedure using the one entry per signer per document principle.

5. Power of Attorney. We teach Notaries to follow instructions to a tee on AIF signings and to call in if instructions are omitted or not clear as to how an Attorney in Fact should sign in their capacity.

6. Identification. We teach Notaries how to make sure the ID proves the name on the document. This may or may not be a legal requirement in their state, but it is a prudency requirement that helps reduce the chance of ending up in court.

7. FAQ’s. We teach the basics of FAQ’s at loan signings such as:
(a) When is my first payment due?
(b) Where can I read about my prepayment penalty (if there is one)?
(c) Why is my APR higher than my rate?
(d) Where does it say where my payoffs and fees are located?

8. We teach the basic loan documents. Our emphasis used to be mainly on documents while our current emphasis is on issues that can cause financial damages to companies involved in transactions which are normally Notary issues or issues pertaining to negligence in business matters.

9. RTC. We teach how to date the Right to Cancel in a Refinance for an owner-occupied property.

10. Errors on Certificates. We teach the various ways to deal with errors on certificates, but this gets into state specific areas and also in to areas pertaining to the preference of the Lender or Title company involved.

11. After-Service. After a Notary signs a loan, they still might be needed for several days to clean up errors or answer questions. Notaries are not normally aware of how long they need to be around, so we tell them what types of situations can arise after the fact and how being unresponsive by phone and email will not make them popular with Title companies.

12. Elder Signings. Issues involving the competency and state of mind of signers is critical with elder signings. Elder signings normally take place in the hospital, but it is possible that for loan signings, especially Reverse Mortgages, that elders could be there. If an elder is on morphine, they are not in a position to sign. And if they cannot paraphrase a document, it might be dangerous to notarize them for legal liability reasons.

13. Foreign language signers and foreign language documents. We address these points a bit. A Notary must have direct communication with the signer in all states but AZ where oral translators are, or were allowed. However, for safety, you should not rely on a translator, because if they make a mistake, you could end up in court and you would be ultimately responsible as the Notary Public involved in the particular transaction.

14. Omitted Information. Sometimes a Notary will go to a signing. The instructions might say, “This page must be notarized.” However, there might not be a notary certificate. In some cases there might not be a signature line. We teach how to handle these situations gracefully.

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DANGERS OF HIRING A SHODDY NOTARY

1. Oaths. If you hire a notary who does not administer Oaths, your loan could be questioned, or perhaps even overturned in court by a Judge once the judge finds out that an “incomplete notarization” has taken place. Omitting an Oath makes a Jurat notarization on a Signature Affidavit, Occupancy Affidavit, Identity Affidavit or other Affidavit incomplete and therefore a Judge could declare the document not notarized, and perhaps declare a loan as invalid as a consequence. This would cause serious legal and financial damages to many parties involved. 90% of Notaries we talk to do NOT know how to administer an Oath correctly and most do not administer Oaths at all… ever, because they think it is not “required” in their state. It is required nationally.

2. Dropping Packages on time. If you hire a Notary who holds on to packages when they don’t know what to do in a particular situation, or because they just are not in the habit of dropping documents quickly, you might not get your important documents back on time. This is dangerous and can cause delays in funding, missing the lock in an interest rate, or your loan getting cancelled. Often times several days later, the documents will be found in the trunk of the Notary’s car. Each incident of forgetting to drop a package can cost you hundreds or thousands.

3. Identification. If you hire a sloppy Notary who does not make sure the name on the ID proves the name on the document, it is possible for your loan to end up in court costing all parties thousands. The lack of thumbprints in a Notary journal also makes it hard to identify someone who used a fake ID.

4. Journals. If you hire a Notary who does not keep a journal, you might not experience trouble for years. The minute your notarizations are called into question by an Attorney, the lack of evidence (namely the notary journal) would come back to haunt you and cause a nightmare. Without evidence, you have no way to prove who notarized what, or if a fraudulent notary impostering a real notary did the work. You have no idea who did what or when or what type of identification was used, or even if the signers consented to being notarized.

Additionally, if your sloppy Notary uses the “cram it in” style of journal entries where one line in their journal accommodates all documents in a loan signing (legal in some states but not prudent) your borrower could claim that they never had all of the documents notarized, but only one, and therefore the loan is void and the transaction must be cancelled, etc. This happens once in a blue moon when a borrower wants to get out of a transaction, and legally it is hard to prove if they consented to be notarized on five documents in a transaction when there is only one signature in the journal for five documents. You could claim that the Notary was in cahoots with the lender and added four additional documents after the fact.

5. Confirming. Improper confirming of signing can lead to a lot of wasted time. If the name on the ID does not prove the name on the document, there is no point in going to the appointment. There are many other critical points to go over when confirming the signing. The majority of Notaries either do not confirm signings, or don’t do so thoroughly enough which can cause a lot of loss of time and perhaps delays in the loan process.

6. Following directions. Many Notaries do not follow directions well. This can cause a huge loss to companies that hire them assuming your directions are critical to the success of the the signing. We screen for following directions when certifying signing agents. None of them are perfect, but we weed out a lot by asking a few following directions questions.

7. Notarizing for non-English Speakers. If you notarize for non-English speakers, this can lead to liability if you cannot communicate effectively with them. Any misunderstanding could come back to you.

8. Dating the RTC. You would be surprised how many Notaries cannot date a Right to Cancel. That can cause financial damages to any company that hires them.

9. Elder Signings can be a source of liability. The elders don’t always understand what they are signing. A competent Notary makes sure the signer understands the document, especially if elderly or in the hospital.

10. Being responsive after the fact. Many Notaries disappear or play hookey after a signing. Notaries are needed to answer questions before, during and after the signing. If they are not, this could cause grief to the hiring party.

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June 22, 2018

How do you get a Power of Attorney Document?

I run a Notary directory, and people who hire Notaries often have Power of Attorney documents of various descriptions. It is important to understand that not all Power of Attorney documents were created equal and there are legal standards as well as preferences of the document custodians that need to be taken into consideration.

Legal Considerations
Legally, you probably need to consult an Attorney to figure out what rights to grant to another person (grantee) and under what circumstances and what legal language to grant such powers. I cannot assist with this because I am not an Attorney, and even if I were, I would probably not be practicing in your state.

Document Custodian Considerations
Document custodians are another party that you have to please with Powers of Attorney. A document custodian is the party that accepts your document. For example, if you get a POA for a particular bank, they will want a Banking Power of Attorney done their way which often means using their forms and not some form you got at a stationary store that looks equally good to you. The custodian has the right to choose what type of form they want in many instances.

Recording Documents
I am not an Attorney and do not know if/when/how/why Power of Attorney forms are recorded at your county’s county recorder. But, find out if you need to record it in their files ahead of time. There is normally a fee for this and it involves a visit to a government office, standing in line, not knowing what room to go to, etc.

Types of Powers of Attorney.
There are Medical Powers of Attorney, Durable Powers of Attorney where you can switch powers on an off sometimes, Banking Power of Attorney documents, and Limited Powers of Attorney as well. Living Wills are yet another specialized type of Medical Power of Attorney that deal specifically with what happens if the Grantor becomes incapacitated or is unable to make their own decisions while bedridden, etc.

Drafting of Documents
Normally, it is a good idea to consult with an Attorney before creating a Power of Attorney. Since it is a legal document, you cannot have any old person draft it for you. It should be an Attorney, or someone legally authorized to draft documents which rules out most Notary Public practitioners. Banks normally use their own forms, so ask the bank what form they require. Additionally, there are legal support firms who employ Legal Assistants, Paralegals, and a few who outsource low paying legal work to New Delhi where they do a very good job at a third of the cost. You can ask these types of agencies what they recommend and who is authorized to draft your document. Your best bet however, is an Attorney if you can afford it. Even if the Attorney doesn’t draft the document him/herself, at least he/she is supervising and taking responsibility for it which makes it potentially a lot safer for you to get a quality output.

Notarizing Documents
Any commissioned Notary Public can notarize your document in their state of commission. Please do not expect or ask the Notary to explain or understand any legal document. Non-Attorney Notaries may not give specific interpretations or explanations of documents other than general statements (in certain states) about what the document is generally about with no specifics mentioned. The Notary’s job is simply to check your ID, make sure you signed the document, the journal (required in most states, recommended by us in any state as that is your only written evidence of the notarial transaction), and fill out certificate forms that correspond to your document.

Legal Technical Terms
If you are creating a Power of Attorney, there is a lot of legalese which an Attorney can help you understand. The main terms are:

Grantor — the person giving power to another
Grantee — the person receiving special powers from the document
Agent — another name for the person who receives power and can complete tasks for the Grantor.
Principal — the main person signing the document who is the Grantor by definition.
Attorney in Fact — the most commonly used term for the agent / person receiving power of attorney.
Capacity — If you have special powers or a special position in a company, that can be described as a capacity. Being an Attorney in Fact or AIF is considered a capacity that can be indicated on certain Notary forms.

Signing in your capacity as Attorney in Fact.
There are eight ways that I have seen to sign as an Attorney in Fact. Please be advised that the particular verbiage is very particular and can be decided by an Attorney or document custodian. If they want it one way, and you sign with even one comma out of place, the entire document might be rejected and need to be resigned. Here are some common ways to sign, but ask your contact person before you sign anything, as the verbiage does matter.

John Smith, as Attorney in Fact for Sally Smith
Sally Smith, by John Smith, her Attorney in Fact
John Smith, POA for Sally Smith
John Smith, AIF for Sally Smith

Summary
In some of these variations, the signer signs the name of the other person (which I am not comfortable with) and then describes their capacity. In other variations, you sign your own name, and then indicate your capacity after a comma after your name. As always, I cannot and will not give legal advice, so, ask an Attorney before you have a Power of Attorney drafted, and before you sign the document and before you sign in your capacity as Attorney in Fact.

If you need a Mobile Notary Public, visit the advanced search page of 123notary.com and lookup by zip, city or county and find about 7000 Notaries Public nationwide, many of whom are very knowledgeable and experienced.

Good luck!

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April 9, 2018

When do I need to use a California All-Purpose Acknowledgment?

Filed under: California_Notary,Other Guest Bloggers — Tags: — admin @ 10:42 am

When do I need to use a California All-Purpose Acknowledgment?
A Notary Public in California only needs to use the notarial language found in an All Purpose Acknowledgment if the document is being filed in California.

California Civil Code Sec 1189 ( c ) allows a Notary to use the preprinted acknowledgment language from another state as long as the Notary is not required to determine or certify in which capacity the signer is signing the document. Certifications are prohibited for Notaries to perform by California law. Notaries are not required to even include the disclaimer at the top of the notarization which essentially states that the Notary Public completing the notarization is only verifying the identity of the signer and not the “truthfulness, accuracy or validity of the document”.

A document that many Notaries see and something that I see brought to my office often at A1 Live Scan Fingerprinting and Notary Services in downtown Los Angeles is Form TSP-70 which is the Thrift and Savings plan Financial Hardship In-Service Withdrawal Request form. This form has preprinted Notarial Language for Acknowledgment and has specific instructions for the Notary that reads in relevant part, “Notary:……No other acknowledgement is acceptable (see instructions)”.

When you see forms such as TSP-70 that is being sent or filed in another state or jurisdiction, use the preprinted form as long as you are not being asked to certify the capacity in which the signer is signing the document.

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