Notary Public Training- More Than Just A Title

Transcription

1 Notary Public Training- More Than Just A Title Presented By: By Terri D. Thomas, J.D. tthomas@ksbankers.com March 12, The Role of the Notary (Page 3) Integrity; Serves the public; Impartial witness; and Performs the following: Acknowledgments; Oaths or Jurats; Signature Attestations; and Certifications. 2 1

2 Term of Office (Page 3) Depends upon state (Typically 2-4 years). Typically requires application for renewal of commission. If bond is utilized, typically must be renewed. 3 Jurisdiction (Page 3) Can act anywhere within the geographical boundaries of the state of appointment. Notary cannot use notary powers of one state in another state. 4 2

3 Qualifications (Page 4) Must be an adult (typically 18 years of age or older). Resident of state or Typically non-residents may have notary powers in association with a job located in the state. Frequently limited to using stamp only when part of job. 5 Other Requirements (Page 4) Complete and file an application. Pay a fee. Post a bond. Obtain either an embosser seal or rubber stamp (rubber stamp is recommended). Journal-mandatory in some states, otherwise highly recommended. Training/Testing-mandatory in some states, otherwise highly recommended. 6 3

4 Other Requirements (Page 4) Take an oath of office. Best oath of office EVER! "I do solemnly swear that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of notary public according to law; and I do further solemnly swear that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State, nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God." 7 Responsibilities (Page 4) Should serve anyone making a lawful and reasonable request. Notaries are considered ministerial public officials who follow simple rules using limited discretion. 8 4

5 Disqualifying Interests (Page 4) Cannot notarize his or her own signature. Should not notarize if there is a direct financial or beneficial interest. 9 Disqualifying Interests (cont d) Should not notarize when notary is grantor, grantee, trustor, trustee, mortgagor, mortgagee, vendor, vendee, lessor, lessee or beneficiary in a transaction. Should not notarize for relatives; court could find notary was not an impartial witness. Notary should use good judgment about when power is going to be used in a transaction that appears to be improper. 10 5

6 Agency Exception (Page 5) It is usually acceptable for a notary to notarize documents of principal if notary is acting in the capacity of agent, employee, insurer, attorney, escrow agent or lender. 11 Notary v. Employee (Page 5) Notaries are commissioned to perform notarization according to state laws, even when state law conflicts with the requirements of the employer. See comments from Kansas and North Dakota (pages 5 and 6). 12 6

7 Notarization Does Not (Page 6): Determine incapacity. Determine truthfulness of the document. Legalize or validate the document. Protect or create rights in property. 13 Notarization Does (Page 6): Create a public record. Detects/deters perjury or fraud. 14 7

8 Notarization Steps (Page 6) Screen signer: Take identification if not known. Some states (like California) are not permitting personal knowledge to be utilized by the notary. Complete the proper notary wording on the prescribed notary form. Affix stamp with commission expiration in proper location on the document. 15 Notarization Steps (cont d) Complete journal entry on transaction or keep copy of document notarized (highly recommended). 16 8

9 Screening the Signer (Page 7) Signer must appear in person (see watermark found on the Kansas notary handbook-page 8). Notary must determine willingness (undue influence). Notary must determine awareness (not capacity) If signer is known to be legally incapacitated, notary should not notarize. 17 Screening the Signer (cont d) Must determine identity by: Personal knowledge; Proper identification; Sworn word of credible witness (not used often); 18 9

10 Screening the Signer (cont d) Credible witness is determined by the witness swearing or affirming: Signer is the person named in the document; Signer is personally known; and Witness does not have a financial interest/ conflict. 19 The Journal (Page 8) Many states require a journal. In others, it is highly recommended. Journal belongs to notary, not employer. Electronic journals are available for electronic notarizations

11 The Journal (cont d) Journal Content: Month, day and year of notarization; The type of notarization; The type of document; The name and address of the signer; The identification used; The notary fee (if applicable); and The signature of the signer. 21 Name Change/ Address Change (Page 9) Typically, to be reported as soon as possible (usually within 30 days) 22 11

12 Notarial Certificate and Seal (Page 9) Notary is responsible for the certificate, not the content of the document being notarized. Therefore, the certificate should be in the English language, regardless of whether the document itself is in English. Sets out the notarial task performed. The stamp alone means nothing. The wording of the certificate can be on the document (or an attachment in most states). 23 Notarial Certificate and Seal (cont d) The proper certificate language required on the document should be determined by the issuing agency, receiving agency or attorney. A non-attorney notary should never determine the proper wording (unauthorized practice of law). Can use statutory language for type of act. Seal should be legible (typically a minimum of 8 pt. type). The Certificate should not contain a statement that the Notary knows is false

13 ANY QUESTIONS? 25 Notarial Acts (Page 10) Acknowledgments Confirming that signer signed on a specific date. Appearance is required. Can be signed in front of notary, but not required. Notary does not have to witness the signature, just confirm that the signer signed. Jurat (verification upon oath or affirmation to compel truthfulness) Must be sworn to and signed in presence of notary

14 Notarial Acts (cont d) Signature attestations (witnessing a signature) Always signed in presence of notary. Certification of copies (allowed in most states) Confirms that a copy is an accurate reproduction. Notary must supervise or witness the making of the copy. Cannot do government-issued documents, naturalization certificate, recordable documents (deeds) or vital records. 27 Notarial Acts (cont d) Protests Certification that a negotiable instrument has not been paid, i.e. dishonored (rarely used on checks due to the collection process in place; may be used on other negotiable instruments, such as promissory notes or drafts)

15 Witnessing a Mark (Page 11) Two witnesses recommended. One witness prints maker s name. Notary provides signature attestation. Both witnesses sign document and journal, as well as the signer making his/her mark. HINT: Don t use X Some states now have procedures for witnessing when person is physically unable to sign or make mark. 29 Notarial Liability (Page 12) A notary is liable for intentional and unintentional misconduct and can have unlimited financial liability. Notary can be criminally fined and imprisoned for intentional misconduct. State may hold employer responsible for notary acts if the notary was acting on behalf of the employer

16 Notarial Bonds (Page 12) Bonding covers third party, not the notary. A bonding company may seek subrogation (can file suit against the notary) for notary s misconduct, fraud, etc. A notary may want to purchase an additional errors and omissions policy to protect the notary. 31 Avoiding Liability (Page 12) To avoid liability, a notary must: Use reasonable care. Obey laws and regulations. Exercise prudence and common sense. and Avoid the unauthorized practice of law

17 Main Reasons for Lawsuits (Page 13) Failure to require personal appearance. Failure to positively ID the signer. Failure to safeguard seal. (Notary should report a stolen seal immediately.) AND Failure to consistently complete, and accurately keep, a journal record. 33 Most Common Errors (Page 13) Failure to attach seal. Neglecting to list expiration date of appointment. Failing to sign the notarial statement. Omitting names and dates in notarial certificate. Failure to properly administer oath (especially when a will is involved). Use caution with the term notario publico. Many states bar the use of the term by non-attorney notaries

18 Notary v. Signature Guarantee (including STAMP Medallion Guarantee Program)- (Page 13) Guarantor makes additional representations and warranties under Uniform Commercial Code, Article The signature was genuine. The signer was the appropriate person to sign (had actual authority to act). Requires guarantor to review any legal documents showing authority (i.e. Power of Attorney). The signer had legal capacity to sign. Signature Guarantee does not equal Notary!!! Medallion Guarantee under STAMP is for securities transactions; STAMP now has a Signature Validation Program for non-securities transactions. Info can be found at: 35 Electronic Notarization (Page 15) Adopted by some states (more adopting in future). Established notary registers for electronic seal. Electronic signature still requires appearance and identification of party signing the document

19 Certifications and Apostilles (Page 16) Used for international transactions. Secretary of State (Department of State) certifies that a document has actually been notarized or signed by state official (such as a notary). Typically used for official documents, such as birth certificates, marriage licenses, etc. Sample on page THE TOP 10 LIST- Humor from the Wisconsin Secretary of State Page

20 THE TOP 10 LIST (CONT D) 39 More Information Terri D. Thomas Upcoming Webinars March 13 th - BSA Series: CTR & Exemptions: Reviews, Mergers, Revocations and More March 17 th - Writing a New Accounts Procedures Manual March 18 th - Fair Lending and the CFPB in Underwriting, Servicing & Collections March 19 th - Health Savings Accounts - Opening, Maintaining and Reporting Requirements TTS Kyle Bennett info@ttstrain.com March 19 th - Understanding Revocable and Irrevocable Trust Documents March 23 rd - Teller Compliance Issues: The Big Three March 24 th - Five Habits of Highly Effective Supervisors March 24 th - Is Your Environmental Risk Management Program Working for You? March 25 th - Compliance Perspectives: A Monthly Update March 26 th - Controlling the Risks of Power of Attorney Documents 40 20