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May 15, 2018

Know YOUR State Notary Law

Filed under: Ken Edelstein — admin @ 11:23 am

Know YOUR State Notary Law
Groan, I just passed off an assignment to a different Notary. Not just any assignment, and it goes to a Notary+ I write this on Nov 5, 2017, it’s a Sunday and also the day of the New York City Marathon. The fact that it’s Sunday is no big deal, usually a quiet day. But the Marathon is one of the few events worse (for traffic) than the first week of the UN General Assembly. The one with all the leading diplomats with the closed streets and Police caravans. But I stray.

The task was across Manhattan, at a hospital. Specifically, the task was to notarize a Will. It’s a good thing that I require What, Where and When to accept an assignment. In New York State it is illegal for me to notarize a will. That requires a “Notary+” someone who is both a Notary an also is an Attorney. That isn’t me. However, I do know of such a person and routinely provide contact information. I also explain exactly why I am prohibited. There is one weird exception to that rule. It’s called a New York State Attestation Section. With that as the signature page, then I only notarize the statements of the witnesses, but not that of the Testator.

Sayeth the caller: You can do it. The Will was prepared by a Virginia Lawyer, and it will be processed in Virginia. My Lawyer told me any Notary can notarize a Will. The Lawyer is using knowledge of Virginia Notary law; and projecting it as being applicable in New York. Such is not the case. A document needs to be notarized legally where the notary processes it. The Will could be for any location on planet Earth. The notarization follows local state law. Period, nothing else matters. Possibly an Apostille will be subsequently added, or translation, or embassy legalization; but the notarization is the foundation and follows local state law.

I mentioned today is Sunday, I must keep in mind a Sunday only restriction – one of the many strange New York State regulations. Today it’s illegal for me to notarize a Civil Deposition. Monday thru Saturday only for those. Perhaps the next caller might not be civil, they might be downright criminal. That’s OK today; notarizing a Criminal Deposition is just fine on Sunday.

This site, similar sites, legal opinions and internet gurus rarely specify the applicable state when they make their profound opinions known. Of course there are some valid generalizations; it’s likely that each state requires, for a routine notarization, that ID be shown. Some have mentioned on the Forum their state list of acceptable ID. That is good. My New York State Notary regulations cite that I must view “adequate proof” and leave me to wonder. So, I set my requirement as “Government issued Photo ID”, and ask each caller what ID they have.

Thus, even something so basic to notarization varies by state, probably a US passport is OK to use in every state. But, there might be a requirement out there for multiple IDs to be shown.

The take away from this installment is really knowing your license law. Everything other than what is in your state regulations is subordinate to those laws. Even the truly wise writings on http://123notary.com be it the blogs or the Forum, are just background information. Your state laws are “the only thing that matters”. When the LO or Title or the Signing Service or anybody else suggests something that conflicts with your state laws; tell them you are a “by the book” notary – “no can do what you want”. Of course you must not just be “familiar” you must know your state regulations. They can change, when is the last time you read ALL your notary laws?

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June 3, 2012

A New California Notary Law

A New California Notary Law

A new law regarding California notaries went into effect on January 1, 2012. One of three main changes to California notary law in 2012 is that a subscribing witness may not sign a Power of Attorney in California in a case where a signer is too frail or unwell to appear before a notary. In other words, it is now clearly mandated that a person giving someone else Power of Attorney in California must be well enough to appear personally before a California notary. There are situations in which an actual signer can’t appear before the notary and a subscribing witness may be used, but this is not as strong as having a California notary take an acknowledgement, and ought not to be allowed in most situations. In matters involving finance and property, California previously made clear that important documents such as mortgages and securities may not be signed by a subscribing witness; instead, the acknowledgment must be taken by the notary with the proper signer present. In 2012, California has now wisely added POA to the list of documents that may not be signed by a subscribing witness.

The second of the changes to California notary law in 2012 sets forth the rule that only California notaries who work for the financial institution concerned may demand payment or accept payment on “foreign bills of exchange” for the institution –and only these California notaries may protest for nonpayment. The third change in the law makes clear that these notaries who work for financial institutions will of course no longer be paid a fee for such services—as an independent notary would have been. The world of banking has its own notaries for all occasions, California notary law reminds us.

Tweets:
(1) A new 2012 California notary law – subscribing witnesses may no longer sign Power of Attorney in certain cases.
(2) Important documents such as Mortgages & Securities may not be signed by subscribing witnesses.

You might also like:

California notary issues
http://blog.123notary.com/?p=3528

California Acknowledgment and Jurat Information
http://blog.123notary.com/?p=1786

Power of Attorney Signings
http://blog.123notary.com/?p=1627

Find a notary in Fremont, CA
http://www.123notary.com/notary-result.asp?state=CA&super=&county=162&sub=3&n=Fremont%20City&cc=1&

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November 12, 2011

Texas Notary Law and Journal Thumbprints

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.

You might also like:

Multiple title companies told notaries NOT to thumbprint?
http://blog.123notary.com/?p=19461

Thumbprint taking state by state
http://blog.123notary.com/?p=1689

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December 5, 2010

Arizona Notary Laws vs. Other States

Arizona notary law and laws that vary from state to state. 
It’s difficult to post about notary procedure on Twitter and Facebook.  No matter how universal a notary law seems, it can differ across state boundaries and the interpretation can differ among individuals too.
 
Credible witnesses
Arizona notary law specifies the term, “Credible person” , which is a way of saying credible identifying witness.  In Arizona, one credible witness who knows the notary as well as knowing the signer may be used to identify the signer.  Different states have different rules for credible witnesses. 90% of states allow them, but some states allow two witnesses who the notary doesn’t know, while others allow only one. California allows one CW if the notary knows them OR two if the notary doesn’t know them.
 
Foreign language signers
An Arizona notary must be able to communicate directly with the signer. Many other states have this same rule.  But, there are a few states where an interpreter may be used between the notary and the signer. 
 
Marriages?
There are a few states where notaries can get a special credential such as Justice of the Peace and perform marriages.  An Arizona notary public unfortunately can not perform a marriage — at least not one that would be legally binding. So, forever hold your peace!
 
Appear before?
In Arizona’s electronic notary rules for electric notaries (which is a separate office from a regular Arizona notary), there USED TO BE conditions where the  signer can be notarized without appearing before the notary for that particular signature.  Read our blog about Arizona electronic signatures for details.  This rule has been changed and signers must appear before the notary according to

Click here
 
Arizona Notary Bond?
Arizona notary bonds must only be for $5000.  Most other states require a larger bond than that.  In California, the bond must be $15,000 for example.
 
Seals and journals
An Arizona notary must use a seal and journal.  This seems fairly elementary, but many states do not require the use of both a seal and a journal. 
 
Marriage or adoption?
Arizona notary law prohibits notarizing for anyone who you are married to or related to by adoption.
 
Legal advice?
An Arizona notary public should not give legal advice and not prepare documents for clients.  Some states prohibit the preparation of legal documents only, while AZ prohibits the preparation of any document. The prohibition of notaries from giving legal advice is standard across the board though.
 
Term
An Arizona notary commission’s term is four years.   A four year term is very common, although the number of years can really vary from state to state.

Please visit our Arizona Notary page!

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November 27, 2010

9/11 California Notary Law Changes

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

You might also like:

Can you use an expired license in California? (Discussion)
http://www.123notary.com/forum/topic.asp?TOPIC_ID=5151

New California Notary laws effective Jan 1, 2012
http://blog.123notary.com/?p=3054

Penalties for notary misdeeds and misconduct
http://blog.123notary.com/?p=2067

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October 4, 2019

Is it practicing law to explain a notary act?

Filed under: Technical & Legal — admin @ 11:19 pm

Many Notaries think they are practicing law by explaining a notary act. Notaries are not allowed to choose a notary act on behalf of a client, but can they explain the requirements?

As a Notary, you have to have a signer sign in your physical presence for a Jurat, but not for an Acknowledgment (except in a few underpopulated states). So, are you practicing UPL or engaged in the unauthorized practice of law by explaining that distinction to a client?

For an Acknowledgment you do not have to sign in front of the Notary, although many lenders require the signer to do so. Is it UPL to explain that too?

Is it UPL to word an Oath for a client for their Affidavit? You kind of have to do that otherwise you cannot administer an Oath or Affirmation.

The fact is that your state authorizes you to do Notary work and perhaps even tests you on it. You are authorized do do all aspects of Notary work by law. You are not authorized to explain Mortgage documents but notary procedures are NOT Mortgage documents although they might be done to Mortgage documents.

How do you deal with this quandary?

You might also like:

Unauthorized practice of law in the notary industry
http://blog.123notary.com/?p=21317

30 Point Course – what to explain and what not to
http://blog.123notary.com/?p=14440

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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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October 6, 2017

The Notary can be named as a suspect if their record keeping is flawed

Filed under: Notary Mistakes — admin @ 1:07 am

I test Notaries by phone daily to see if they are fit to be on my site. The results of the testing are that I have to accept people who shouldn’t be Notaries just because I’m desperate for people in certain remote areas. However, bad Notarial record keeping is not only a headache for me during testing. It is dangerous for society and for the Notary as well. Failing to keep thumbprints makes it impossible for the FBI to catch identity thieves. ID’s can be falsified, so without hard evidence like a thumbprint, you cannot catch the bad guys. However, there’s more.

When the FBI interviews a Notary during an identity fraud case, the Notary is considered a suspect. After all, they were involved in the transaction. You might not think of yourself as a suspect, but the Feds do, because it would be easy for you to be involved, especially if you don’t keep your books correctly.

If your books are filled out with one journal entry per person per document, and each entry is signed and with a thumbprint — that is thorough bookkeeping. Less than 10% of Notaries nationwide keep their journal completely correctly. Here are some ways you could make yourself look more suspicious and perhaps end up in court for a long time.

1. If you put multiple documents in each journal entry, the signer or FBI could claim that you added extra documents AFTER the signing to defraud the signer. You cannot prove that you did not add those documents after the signing, so your hands are tied. This is why you have the signed sign off for each document which you cannot do unless there is a separate journal entry for each document.

2. If you put “loan docs” in a journal entry without specifying the exact names of the loan documents in separate journal entries, you could be accused of forging signatures on additional documents. Since you didn’t record which exact documents you notarized, you could claim anything and there is no evidence one way or the other to prove your innocence.

3. If you use one journal entry for more than one signer you create a mess as multiple signers would have to sign a journal entry where their ID information probably would not fit.

4. If you simply do not keep a journal as it is not required by law in your state you could be easily considered a suspect in identity theft and would have zero evidence to prove your innocence.

5. If you keep proper journal entries, but refuse to thumbprint the signer on a Deed or Power of Attorney (serious documents that affect people’s lives and property) you could be accused of concealing the signer’s true identity if they used a false identification card forged in China ($200 market price by the way.)

6. If you think an ID is the real person because the ID looks like him. Consider that in Iraq, ISIS kills people and sells their passports to other people who look similar for about 1200 Euros.

7. There are corrupt people at the DMV who make falsified driver’s licenses which look real because they are real, but with falsified information. Those bad people normally get caught eventually, but have a good run for a while creating all types of chaos in society. Many were charging $500 for a false ID so I heard.

If you keep proper journal entries and thumbprints, it will be more clear to investigators and judges that you take identifying signers very seriously and cover your tracks in case there is any hanky panky. ID’s can be forged, but you cannot forge a thumbprint unless you wear a latex pad on your thumb with someone else’s prints which the Notary would easily detect. Cover your tracks, and your court cases will be dismissed faster based on the experiences of the Notaries on our site!

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You might also like:

Compilation of posts about Notary fraud
http://blog.123notary.com/?p=21527

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

What entities might want to see your journal?
http://blog.123notary.com/?p=20902

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January 23, 2011

Bad Notary Reviews and the Law on the internet

I am not an Attorney, and this blog article does not constitute legal advice, but only my experience talking to Attorneys as well as “practical” advice.

Many internet sites have review systems.
Yelp, RipOff Report, 123notary, Travelocity, and others. People who get a bad review sometimes get upset and want to sue. The question is, who can you sue, and how hard is it? What I have been told (consult an Attorney for a “real” opinion) is that the sites that publish reviews are off the hook. The law protects their right to publish information that someone else wrote regardless of whether it is true, false, based on evidence, or not. However, you do have the right to take legal action within a time frame of perhaps a year or several years depending on your state based on the Statute of Limitations. You would need to contact an Attorney to see what that time frame would be.

The Statute of Limitations
On the other hand, if a slanderous statement is published on the internet which just sits there, even if it had been there for years, you could claim that since it is still being “published” that it is within the time restraints of the statute of limitations and perhaps a judge might buy that (good luck.)

Who can you sue?
If you want to sue someone, you need to go after the individual who wrote the review and NOT 123notary or whomever published it. Step one is to find out who they are which an Attorney can do. You need to know their legal name and address, etc. You can have an Attorney write to them and try to get them to take the review down. If you sue them, it is likely that they are broke, especially if they write in broken English like so many do. So, good luck collecting.

How much will it cost?
But, you do have rights. It might cost you $5000 just to establish the identify of the individual who wrote the review. It might cost another $10,000 to go after them depending on who you hire, what state you are in, and how good the Attorney is, etc.

Bad Notary Reviews?
Very few Notaries on 123notary get bad reviews — only about two per month. However, most Notaries are paranoid that it will happen to them and that their life (as they know it) will be over. Notaries with bad reviews stay in business and do not lose that much market share. What they do lose is their pride more than anything else.

So, for Notaries, you should just leave the Attorneys alone and forget about it. Just write a rebuttal and wait for three years and I’ll remove it. Cover up your bad review with good reviews. If you have ten good reviews and only one bad review at the bottom of the stack, people will see the bad review in proportion or might not even read it at all. A bad review will not ruin you life. Just deal with it like a pro instead of making it worse and provoking a huge conflict with 123notary. After all, it is not our fault you got a bad review. Also, should we disable our entire review system just because one Notary complained bitterly about a bad review and threatened to sue. If we removed his/her bad review we’d have to do it for everyone and then we wouldn’t have a review system at all. Review systems are a very practical way for the publish to defend themselves from bad service providers.

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You might also like:

Common complaints we get about Notaries
http://blog.123notary.com/?p=19399

123notary’s comprehensive guide to getting reviews (mentioned above)
This guide includes many supplemental and highly relevant and helpful links.
http://blog.123notary.com/?p=16290

Notary Marketing 102 – your notes section
http://blog.123notary.com/?p=19788

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October 9, 2019

Maximum Notary fee $5, but the signing pays $200?

Filed under: Notary Fees & Pricing — admin @ 11:23 pm

Each state has a maximum notary fee per notary act or procedure. Some charge by the signature, Florida charges by the stamp if I’m not incorrect (better look that one up.)

But, if you are allowed $5 per signature, the signing has four signatures, but pays $200, then what? Are you breaking the law? Or are you being paid for mobile fees and supervising fees? The truth is that you are being paid for a bunch of responsibilities within your service:

Printing documents
Confirming an appointment
Supervising the signature and initialing of documents
Answering simple questions (perhaps)
Not answering questions you are not supposed to (unless you are a know-it-all who is looking for trouble)
Notarizing
Waiting while people read or have long conversations by phone with the Lender.
Getting the documents safely back where they belong
Availability for after service.

All of those combined definitely merit at least $125, don’t you think?

So, how do you document this in your journal? $5 per notary act. Two people x two notary acts per person is four lines in your journal each stating $5 for the notary fee. And then in the additional info section for the first notary act of the set, put down you got $180 travel / supervising fee for a loan signing. Then it is all documented just in case the IRS has any questions. Notary fees are not subject to self-employment tax but travel and supervising fees are. Look it up in the SE instructions.

But, what if you live in California and the Notary fee is $15, you have ten signatures, but the job only pays $100. You could charge $150 plus travel for that signing, but your Lender or signing company isn’t paying that. Just put whatever you want for the notary fee between zero and $15 per notarized signature in your journal. And do a reasonable estimate for what the travel and supervising fees should be — just estimate and try to be proportionate.

You might also like:

Travel fees vs. Notary fees in your journal
http://blog.123notary.com/?p=22612

Travel fees if nothing gets signed
http://blog.123notary.com/?p=22578

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