NUTS AND BOLTS OF PERFORMING NOTARIAL ACTS. Kathleen Butler, Executive Director American Society of Notaries Austin, TX August 30, 2017

Transcription

1 NUTS AND BOLTS OF PERFORMING NOTARIAL ACTS Kathleen Butler, Executive Directr American Sciety f Ntaries Austin, TX August 30, 2017

2 TODAY S DISCUSSION WHY are dcuments ntarized? WHAT are a Ntary s fundamental respnsibilities? HOW des a Ntary perfrm prperly? i

3 WHY ARE DOCUMENTS NOTARIZED? Assurances: Ntary - impartial witness Ntarial certificate (Prima facie evidence) Signer awareness, free will Ntarizatin date and place Signer was identified Specific ntarial act perfrmed Ntary s signature, fficial title Official seal

4 WHY ARE DOCUMENTS NOTARIZED? Hw Ntaries reliably prduce assurances f ntarizatin: Cnsistent and infrmed perfrmance f their acts and respnsibilities; reasnable care Training and nging knwledge

5 TEXAS NOTARY S ESSENTIAL TOOLS Seal f ffice Recrd bk Fee list, bill/receipt bk Bnd Errrs & Omissins Insurance

6 A NOTARY S FUNDAMENTAL RESPONSIBILITIES Always act lawfully and ethically Safeguard Ntary tls 4 Maintain cmmissin infrmatin and status Reject imprper cercin 5 6 Refuse cnflicts f interest Dn t discriminate 7 Refuse t ntarize when necessary

7 NOTARY PROHIBITIONS DON T: ntarize withut the signer present ntarize yur wn signature alter r change any part f the dcument cntent chse the ntarial certificate execute a false certificate enter ID number(s) in a jurnal recrd misrepresent Ntary pwers (advertising) perfrm ntarizatins by telephne vercharge fr services Thrughly review Ntary laws, rules and infrmatinal materials fr all prhibited acts.

8 AUTHORIZED NOTARIAL DUTIES Oaths and affirmatins Acknwledgments Prfs f written instruments 4 5 Certify cpies f nnrecrdable dcuments Take depsitins, issue prtests

9 AUTHORIZED NOTARIAL DUTIES Oaths and affirmatins Same legal effect Purpse: T cmpel truthfulness under penalties f perjury abut a statement r prmise. Oath: Truthfulness befre Gd Affirmatin: Truthfulness under ne s wn cnscience

10 AUTHORIZED NOTARIAL DUTIES Oaths and affirmatins Administered by the Ntary Verbal ceremnies N dcument: (slemnly swear) D yu, Jhn De, yu will uphld [affirm] the duties f the ffice t which yu have been elected (s help yu Gd)? Signed dcument: OATH: D yu, Jhn De, slemnly swear under penalties f perjury that the infrmatin cntained in this dcument is true, s help yu Gd? AFFIRMATION: D yu, Jhn De, affirm under penalties f perjury that the infrmatin cntained in this dcument is true? Als called a verificatin n ath r affirmatin

11 AUTHORIZED NOTARIAL DUTIES Jurat Certificate - Oath Venue Indicates ath Indicates presence Name f persn appearing befre the Ntary State f Texas Cunty f (where ntarizatin is perfrmed) Swrn t and subscribed befre me n the (date) day f (mnth), (year), by. Name f Principal ( Ntary Public s Signature ) [SEAL] NOTARY PUBLIC, STATE OF TEXAS Means signed Exact date f ntarizatin Ntary s fficial signature Official Ntarial seal

12 AUTHORIZED NOTARIAL DUTIES Purpse: Persn declares (acknwledges) signing a dcument vluntarily, fr the purpses and cnsideratin stated in it. Acknwledgments Individual Capacity: An individual (principal) acknwledges his signature befre the Ntary Representative Capacity: Anther persn has authrity t acknwledge the principal s signature befre the Ntary

13 AUTHORIZED NOTARIAL DUTIES Acknwledgments Taken by the Ntary Verbal ceremny Signed dcument Signed previusly* r Signed befre the Ntary *Signature must be riginal (wet-ink, paper dcument) D yu, Jhn De, acknwledge signing this dcument willingly, fr the purpses and cnsideratin stated in it?

14 AUTHORIZED NOTARIAL DUTIES Acknwledgment Certificate - Individual Venue Indicates Ackn Indicates presence befre Ntary Name f persn appearing befre the Ntary Ntary s fficial signature Shrt Frm * State f Texas Cunty f (where ntarizatin is perfrmed) This instrument was acknwledged befre me n the (date) day f (mnth), (year), by. Name f Principal ( Ntary Public s Signature ) [SEAL] NOTARY PUBLIC, STATE OF TEXAS Indicates acknwledgment; signed earlier r befre Ntary Exact date f ntarizatin Official Ntarial seal *If nt the shrt frm, Ntary must nte hw signer was identified, by persnal knwledge r satisfactry evidence.

15 AUTHORIZED NOTARIAL DUTIES Acknwledgment Certificate Representative Capacity Venue Indicates acknwledgment; Indicates presence befre Ntary Name f persn PRESENT befre the Ntary Ntary s fficial signature State f Texas Cunty f (where ntarizatin is perfrmed) This instrument was acknwledged befre me n the (date) day f (mnth), (year), by as Name f Representative Title f Representative fr/f. Name f Principal r Entity Represented ( Ntary Public s Signature ) [SEAL] NOTARY PUBLIC, STATE OF TEXAS Indicates acknwledgment; signed earlier r befre Ntary Exact date f ntarizatin Specific representative capacity Name f principal r entity represented by the present persn Official Ntarial seal

16 AUTHORIZED NOTARIAL DUTIES Cmpare the differences: Oath/Affirmatin Principal swears t the truthfulness f the dcument s cntents, r affirms it. Subscribed and swrn t (r affirmed) befre me n (exact date) by Jhn De. Signer always signs dcument in the Ntary s presence. Acknwledgment Principal acknwledges he/she signed the dcument willingly, fr its stated purpse and cnsideratins. Acknwledged befre me n (exact date) by Jhn De. Signer may sign in the Ntary s presence r earlier; signature must be riginal. Verbal ceremny fr an ath (r affirmatin). Verbal ceremny fr an acknwledgment. Typical dcuments: the signer supplied certain infrmatin in the dcument. Typical dcuments: the signer is agreeing t terms in the dcument.

17 AUTHORIZED NOTARIAL DUTIES Prfs f Written Instruments Purpse: T enable recrding f a signed dcument that the principal (signer) has nt acknwledged. The actual dcument signer is unable r unwilling t acknwledge his signature. A subscribing witness t the dcument signing appears befre the Ntary t make a swrn statement abut the circumstances f the dcument signing.

18 AUTHORIZED NOTARIAL DUTIES Prfs f Written Instruments Verbal ath administered by Ntary D yu, Jhn De, slemnly swear that: Yu saw, the grantr r persn wh executed the freging instrument, subscribe that instrument; (r. that the grantr r persn wh executed the instrument acknwledged in yur presence that he executed the same fr the purpses and cnsideratin therein expressed;) And that yu signed the same as a witness at the request f the grantr (r persn wh executed the same), s help yu Gd?

19 AUTHORIZED NOTARIAL DUTIES Prf by Subscribing Witness - Certificate State f Texas, Cunty f Befre me, (here insert the name and character f the ntarizing fficer), n this day persnally appeared, knwn t me (r prved t me n the ath f ) t be the persn whse name is subscribed as a witness t the freging instrument f writing, and after being duly swrn by me stated n ath that he/she saw, the grantr r persn wh executed the freging instrument, subscribe the same (r that the grantr r persn wh executed such instrument f writing acknwledged in his/her presence that he/she had executed the same fr the purpses and cnsideratin therein expressed), and that he/she had signed the same as a witness at the request f the grantr (r persn wh executed the same). Given under my hand and seal f ffice this day f, 20. ( Ntary Public s Signature ) [SEAL] NOTARY PUBLIC, STATE OF TEXAS

20 AUTHORIZED NOTARIAL DUTIES Certify Cpies f Nn- Recrdable Dcuments Purpse: Enables a dcument cpy t be certified by a ntary t be a true and accurate duplicate f the riginal. Nt allwed fr: Vital r public recrds Ptentially recrdable dcuments

21 AUTHORIZED NOTARIAL DUTIES Certify Cpies f Nn- Recrdable Dcuments Guidelines: N vital r public recrd, r ptentially recrdable dcuments Dcument t be cpied must be the riginal Ntary persnally makes the phtcpy (see certificate wrding) Review ID f dcument custdian Cmpleted ntarial certificate - write it n, r attach it t, the cpy

22 AUTHORIZED NOTARIAL DUTIES Certify Cpies f Nn- Recrdable Dcuments Certificate Certified Cpy f Nn-Recrdable Dcument State f Texas Cunty f On this day f, 20, I certify that the preceding r attached dcument is a true, exact, cmplete, and unaltered cpy made by me f (descriptin f dcument), presented t me by the dcument s custdian,, and that, t the best f my knwledge, the phtcpied dcument is neither a public recrd nr a publicly recrdable dcument, certified cpies f which are available frm an fficial surce ther than a Ntary. (Ntary Public Signature) Ntary Public, State f Texas (SEAL)

23 AUTHORIZED NOTARIAL DUTIES Other Authrized Duties Limited t specific business purpses r disciplines; additinal expertise recmmended Take depsitins: Swear-in and recrd the testimny f a depnent; subject t Texas Rules f Civil Prcedure. Specific expertise recmmended. Issue prtests: Ntary s written statement that upn presentment r acceptance, a negtiable instrument was neither paid nr accepted. Mst cmmn t financial sectr. Specific expertise recmmended.

24 PERFORMING NOTARIAL ACTS i 1. Require persnal appearance Steps f Ntarizatin Ntarial acts invlving a signed dcument 2. Examine the dcument 3. Discuss fees 4 4. Identify the named signer 5 5. Create a recrd 6 6. Dcument executin and verbal ceremny 7 7. Cmplete the ntarial certificate

25 PERFORMING NOTARIAL ACTS Steps f Ntarizatin Require Persnal Appearance 2 Examine (Scan) the Dcument T: i Physical presence f the principal n exceptins! Ntarial acts invlving a signed dcument. Check fr cmpleteness (all pages present; blanks) View the required ntarial act Assess the ntarial certificate wrding View the named signer(s) Check fr witnesses Review dcument r signature date Determine if signature is riginal (if already signed acknwledgment nly) Determine hw t describe the dcument in the recrd bk entry

26 PERFORMING NOTARIAL ACTS Steps f Ntarizatin 3 3 Discuss Fees Allwable Fees* t Charge *mst cmmn acts in bld i Fees are ptinal Disclse intent t charge fees, and what they are, befre ntarizing. Itemize and present fees. Ntarial acts invlving a signed dcument. Remember psting f fees is required. Prhibited: fees fr additinal expenses. Charge nly fr the ntarial-act fees specified in statute. Acknwledgment r prf - $6 ($1 each add l sig.) Oath r affirmatin (certificate and seal) - $6 Certifying a cpy - $6 Prviding a cpy f a ntarial recrd 50 pp Taking a depsitin - $6 fr ath, certificate, seal, and ther steps; plus 50 per 100 wrds Issuing a prtest - Prtesting fr nnacceptance r nnpayment, register and seal - $4; each ntice f prtest - $1; certificate and seal t a prtest - $4; prtesting in all ther cases - $4 Certificate under seal nt therwise prvided fr; r perfrming any ther lawful ntarial act - $6

27 PERFORMING NOTARIAL ACTS Steps f Ntarizatin 4 1 Identify the Signer(s) Persnal knwledge Ntarial acts invlving a signed dcument. Satisfactry evidence f identificatin Frms f Satisfactry Identificatin A current identificatin card r ther dcument issued by the federal gvernment r any state gvernment that cntains the phtgraph and signature f the acknwledging persn. Current driver s license frm Texas r any ther state; must include pht and signature Current U.S. Passprt* * Freign Passprt ONLY with respect t a deed r ther instrument relating t a residential real estate transactin. Oath f a credible witness wh is persnally knwn. Verbal ath (r affirmatin) is administered t the credible witness; recrd this fact in the recrd bk. i

28 PERFORMING NOTARIAL ACTS Steps f Ntarizatin 5 1 Create a Recrd Recrd Bk Entry Requirements Recrd bk entry fr every ntarial act perfrmed Ntarial acts invlving a signed dcument. Bk, cmputer r ther strage device Date f each dcument ntarized Date f ntarizatin Name f persn appearing (signer, grantr, subscribing witness r maker) The persn s mailing address (Eff ) i Hw the persn was identified (persnally knwn, r type f satisfactry evidence; include name and mailing address f any credible witness) Hw a subscribing witness, if applicable, was identified (persnally knwn r credible witness, nly) Name, address f grantee If land cnveyed, name f riginal grantee, cunty where land lcated A brief descriptin f the dcument

29 PERFORMING NOTARIAL ACTS Steps f Ntarizatin 6 3 Dcument Executin and Verbal Ceremny Witness r review the signer s signature. Perfrm the apprpriate verbal ceremny: Oath r affirmatin i D yu, Jhn De, [slemnly swear ] (affirm) under penalties f perjury that the infrmatin cntained in this dcument is true, [s help yu Gd?] Ntarial acts invlving a signed dcument. Acknwledgment D yu, Jhn De, acknwledge signing this dcument willingly, fr the purpses and cnsideratin stated in it?

30 PERFORMING NOTARIAL ACTS Steps f Ntarizatin 7 Cmplete the Ntarial Certificate i Cmplete at the time f ntarizatin (while signer is present) Fundamental elements: Ntarial acts invlving a signed dcument. Venue (lcatin f ntarizatin) Ntarial act perfrmed ( Subscribed and swrn t... ; acknwledged ) Exact date f ntarizatin Name f principal Ntary s name, fficial signature (sign as cmmissined) Ntary s fficial seal (Crrect elements; indelible ink; legible imprint; phtgraphically reprducible) Crrect the certificate wrding if necessary (must reflect accurate facts) If nt the shrt frm acknwledgment frmat: Include hw principal was identified (persnally knwn, r satisfactry evidence).

31 PERFORMING NOTARIAL ACTS Steps f Ntarizatin 7 Cmplete the Ntarial Certificate - DON TS i DO NOT (unless licensed t practice law) determine the type f ntarial certificate a dcument requires if the dcument lacks a certificate. DO NOT sign a ntarial certificate under any ther name than the ne under which the ntary was cmmissined. DO NOT cmplete a certificate indicating perfrmance f any functin ther than thse utlined in Gvernment Cde DO NOT execute any certificate cntaining a statement knwn t be false.

32 AUTHORIZED NOTARIAL DUTIES Recrd Bk Ntary must keep a recrd f each dcument ntarized. i Benefits f recrd keeping Paper r electrnic Electrnic = cmputer, r ther electrnic strage methd backed up and capable f print-ut Strage, retentin Public recrd Certified cpies f ntarial recrds prduced upn payment f fees Requests - SOS suggests certified letter t Ntary s address f recrd Failure t respnd, cnsequences

33 AUTHORIZED NOTARIAL DUTIES Recrd Bk Prducing a certified cpy f a recrd. Certificate Certified Cpy f a Ntarial Recrd State f Texas Cunty f On this day f, 20, I certify, pursuant t Tex. Gv t Cde (c), that the preceding r attached dcument is a true, exact, cmplete and unaltered cpy made by me f * (descriptin f ntarial recrd), the riginal f which is held in my custdy as a ntarial recrd. (Ntary Public Signature) Ntary Public, State f Texas (SEAL) i * Fr example, Entry Number 25 dated , Page 9, bk beginning (date)

34 CHALLENGING NOTARIZATIONS i Essential Guidelines Fllw all basic requirements f ntarizatin Check statutes, rules fr specifics Use reasnable care Carefully recrd additinal details in the recrd bk If in dubt, refuse t ntarize

35 CHALLENGING NOTARIZATIONS i Obtain the signer s guidance Dcument Lacks A Ntarial Certificate Explain what acts may be perfrmed Shw certificate samples Add the chsen certificate language Refuse t ntarize if the signer cannt chse and cannt btain apprpriate help

36 CHALLENGING NOTARIZATIONS i Signer Uses Special Signature Methd Signature by Mark Physically Unable t Sign Texas law: Signed includes any symbl executed r adpted by a persn with present intentin t authenticate a writing. Prceed as usual n signature by mark ; nte circumstances in recrd bk. Ntary may sign fr any persn physically unable t sign r make a mark, subject t: Physically present; must be directed by persn t sign Impartial witness must als be present Ntary identifies bth persn and witness Ntary makes special ntatin under signature: Signature affixed by Ntary in the presence f (name f witness), a disinterested witness, under Sectin , Gvernment Cde. Ntary ntes circumstances in recrd bk.

37 CHALLENGING NOTARIZATIONS Spken r Written Language Issues Ntary and signer d nt speak the same language Dcument is in an unfamiliar language Must have direct verbal cmmunicatin between Ntary and the signer i Ntary must be able t perfrm all rutine assessments Signer must be aware f cntents

38 CHALLENGING NOTARIZATIONS i Refusing t Ntarize Mst cmmn circumstances Signer appears under duress Pssible unlawful, imprper use f dcument Signer s capacity r willingness is in dubt Imprper act is requested r demanded Signer cannt be satisfactrily identified Ntary is nt familiar with the required ntarial act Ntary is unable t adequately asses the dcument Ntary has a cnflict f interest Gvernment emplyee ntaries special circumstances Emplyee ntaries requests during wrk hurs

39 SUMMARY WHY, WHAT and HOW f ntarizatin i Yur acts prvide imprtant assurances t thse relying n dcument transactins It is yur fundamental duty t be infrmed, act ethically, and perfrm lawfully Yur rle is unique, yur value is enduring.

40 NUTS AND BOLTS OF PERFORMING NOTARIAL ACTS Thank yu!