Notarize with Confidence and Accuracy

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Notarizewith Confidenceand Accuracy
Andrew Whitfield, JD Deputy Director, Licensing
Enforcement Colorado Department of State
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Its all in the name

• Confidence through knowledge.
• Accuracy through best practices.

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• Today . . .
• A Brief History
• Three Common Notarizations
• The Four Common Defects Seen in Colorado and How
  to Remedy Them
• Understanding Liability

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The Source

• Different states have different laws but the
  Model Notary Act (2002) is the gap filler.
• - Comments are instructive.
• - Articulates Best Practices.
• - Best Practices are Ubiquitous.
• - Vancura v. Katris (2008)

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The Vancura Decision

• Illinois Appellate Court
• The courts holding relied on the Model Notary
  Act.
• Court reasoned that where state law is silent,
  the Model Act controls.
• Practical effect for the notary
• Triple the responsibility

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Notaries Date Back to the Roman Empire

• Appeared whenmen learned towrite for thesame
  reasonswe have today.
• Charlemagnerequired all bishops,abbots, and
  countsto have notaries.

Charlemagne giving counsel to his son Pepin,
king of Italy, while a scribe records
proceedings
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• What you have in common with Charlemagnes
  notaries
• Notaries are considered public officers appointed
  by the state.
• Notaries are considered to be eminent people of
  good character.
• Notaries playa vital rollin business.

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The Basics

• Oaths and affirmations
• Acknowledgments
• Copy certifications

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Oaths Affirmations

• Jurats sworn to or affirmed statements
• Trigger Language
• So help me God
• Under penalty of perjury
• Supreme Being Predicament
• Administering the oath
• Client must swear to or affirm his identity and
  that he identifies the document.

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The Process . . .

• Identify the client using Satisfactory
  Evidence.
• Administer the Oath.
• See the client sign the document in your
  physical presence.
• Complete notarial certificate.
• Record in your journal.

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Model Notary Act Best Practices . . .

• Read aloud any provided affirmation wording and
  have the principal assent.
• Proper affirmation requires a positive and
  unequivocal response by the signer.
• The response is preferred to be verbal but can be
  non-verbal(e.g. nodding head).

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Satisfactory Evidence

• Either . . .
• ID - Current document issued by a federal, state,
  or tribal government agency.
• Credible Witness An oath or affirmation of one
  credible witness unaffected by the transaction
  who is personally known to you and the signer.

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Credible Witness
Notary
Elderly Gentleman
Credible Witness
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Uncredible
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Credible
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Hmmm.
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Satisfactory Evidence Best Practices

• ID must have picture and signature and
  preferably physical description.
• Two forms of ID.
• Credible witness is less preferred
• Everyone signs the journal.

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Acknowledgements

• Unsworn statements (e.g. real property)
• Principal must acknowledgein presence of notary
  thats/he voluntarily signed the document.

Situationally Aware for Real Property Transactions
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The Process . . .

• Identify the client using Satisfactory
  Evidence.
• Have the signer acknowledge in your physical
  presence that document was signed by him.
• Complete the notarial certificate.
• Record in your journal.

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Model Notary Act Says . . .

• The principal does not make any statement
  regarding the truthfulness or accuracy of the
  contents of the document.
• The acknowledgement speaks to the fact that the
  document was signed voluntarily for the purpose
  of validating the document.

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Copy Certifications

• The notary is presented with a document
• The notary copies or supervises the copying of
  the document using a photographic or electronic
  copying process
• Compares the original document to the copy and
• Certifies the copy is accurate and complete.

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Public Custodian Exception

• Notaries may not certify documents maintained by
  custodians of public records
• E.g. marriage licenses, birth certificates, or a
  recorded or recordable deed.

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Remedying the Four Most Common Errors

• Physical presence
• Notarial certificates
• Disqualifying interest
• Blank Spaces

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Dont Do It! 1

• Notarize Outside The Physical Presence of the
  Signer
• You cant notarize a signature that you recognize
  if signer isnt in your presence.
• You cant notarize a signature where your boss
  says that he just saw the client sign.
• You cant notarize a document where the client is
  on the phone with you from another state.

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Dont Do It! 2

• Notarize Documents in Which You Have a
  Disqualifying Interest
• Stand to gain from the transaction.
• Named as a party
• Model Notary Act
• - Close family members
• - In-laws, half, step, domestic partners.

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Dont Do It! 3

• May Not Notarize A Document ContainingBlank
  Spaces
• e.g. Parenting plans, Deeds, etc.
• How to handle signature banks.

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Dont Do It! 4

• May Not Notarize Documents Without Using a
  Notarial Certificate
• Sample notary certificates can be found in your
  states law and Notary Handbook.

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Liability 101 Duty of Reasonable Care

• The standard
• Duty to act as a reasonably prudent notary would
  act in the same or similar circumstances.
• High standard.

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Exposure to Liability

• Administrative
• Criminal
• Civil

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Avoiding Liability

• Be Situationally Aware
• Elderly Signers - Dementia
• Property Transactions Quit Claim deeds
• Gut Check
• Follow Best Practices . . .

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Core Best Practices

• Journal
• In every sense of the word.
• Require two forms of ID.
• Turn it over and check the back for authenticity
• Biometrics
• Thumbprint

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?
Questions?
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Thank you!Andrew Whitfield, JDandrew.whitfield_at_
sos.state.co.us303-869-4920