There are some Lenders and title companies that in my opinion are just lazy and don’t want to update their documents to reflect the new verbiage in the certificates in Florida. Notaries please, you need to ask for an additional fee because you end up attaching your own certificates to all those documents, not only it is more costly but the signings take longer. I’ve been asking for an additional fee but there are some companies now that don’t want to pay the fee and tell me that other notaries are notarizing the documents with the old verbiage and that it is really not neccesary for us to attach our own certificates.Sometimes they said that they already called the State and have been told that it’s ok for notaries to notarize documents with the old verbiage, NOT TRUE. PLEASE PLEASE DON’T LET THIS HAPPEN TO YOU. We need to fight this with all of these companies. You DO NEED to attach your own certificates if the documents don’t have the new verbiage so, they either pay extra or they have to update their documents.
I would just get a stamp made
“Appeared _____ via physical presence or _____ via online notarization”
Stamp it near your signature line or near the cert wording - it’s quick, makes cert compliant and there would be no need to up your fee and risk alienating the hiring party or ruining a working relationship (or you could just write it in at the end of the cert). I would NOT notarize anything without the additional wording though -I don’t let companies talk me into violating my notary laws.
Attaching an additional page to anything to be recorded increases the recording fees which may not be accounted for on the CD.
I see that all too often in out of state companies, they attach the correct disclaimer block to the ‘important’ docs but leave it out in others. I automatically prepare a custom ack/jurat when I review a signing, very easy to print out a looseleaf.
I suspect that various documents are created by various software packages. The mortgage typically has the “correct” acknowledgement for the state where the property is located. The other docs, such as a survey affidavit, may have any old acknowledgement.
Of course, if the property isn’t in my state, I usually had to change all the acknowledgements.
I put “correct” in quotes because they are slow to adjust to changes. It’s now almost 8 months since the notarial certificates in Vermont changed due to a new law, and I have yet to see an updated notarial certificate from anyone. Even some forms available on vermont.gov haven’t been updated.
I just add “by physical presence” to the acknowledgement.
I won’t waste time attaching a compliant certificate. In early January I informed a lender about the required language & was asked to attach a compliant certificate. I did & it was discarded.
If the documents are not legal then it’s the title or mortgage company’s problem
I am keeping copies of communication warning them their Jurats are not legal under Fla Law
I don’t know what state mfj8651 is in, but I have corresponded with the staff in the Secretary of State’s office in my state, Vermont. At least in my state, the correctness of the notarial certificate is the notary’s responsibility, and it is the notary’s duty to either correct any problems with a certificate provided by somebody else, or refuse to notarize.
Ashton is correct. The documents will still be legal but your notarization will be non-compliant if those words are not in there. mfj8651, it’s a simple fix. Why not just add the words or get a small stamp made and not argue with hiring parties. Conform the certs to be compliant and that’s the end of it.
“If the documents are not legal then it’s the title or mortgage company’s problem” - this is true…but your certs ARE your responsibility. They are responsible only for errors within the document itself - the notary is responsible for the accuracy of the notarial cert.
That is what I do as well…on every certificate where I have to notarize and they don’t already include it.
Here is a scenario to think about. A notary in Florida figures out not to handle the certificate in accordance to Florida law. After all, who’s going to look at? The Title company in the other state does not place any importance on it. As one notary stated, “they discarded” the extra certificate. Now, some time later, maybe because a divorce, or a probate dispute, or a bankruptcy, the title is examined for errors. At least one error threatens the validity of the document. And it is then, maybe years later, that it is discovered that the Florida Notary did not do their due diligence. That is when that little detail of not handling the certificate the right way come back to bite the notary in the you-know-what. The bond will cover up to a certain amount, but then the notary is suspended until they pay back to the bond what it paid. Errors and Omissions does not cover deliberate actions. A scenario just like this warrants thinking about the future and not just the moment. Just my humble opinion, for what it’s worth.
Not sure how it would be determined to be a deliberate act versus an error or omission. Please explain.
It would likely be the venue of a court to determine whether it is a deliberate act or not. I am not a lawyer, so I can only surmise. However, if someone knows what they are supposed to do, and they refuse or fail to do the right way, then what is the likelihood of the court determining that it was deliberate? Could it be compared to someone who runs a red light, thinking that the likelihood of getting caught is minimal? What happens when there is a collision or that a traffic enforcer sees the person? I only speak for myself when I say that I would not take the chance.
It is true that the notary is not responsible for the legality of the document. The notary is responsible to follow the notary laws of the state where they use their stamp. I do not know of any state that has a law saying that ignorance of the law is an excuse for breaking it.
It might be interesting to check with the Secretary of State where you have you commission and see how many disciplinary actions have been taken against notaries.
You said “The notary is responsible to follow the notary laws of the state where they use their stamp.”, true and when they fail to do so then it becomes an omission. It would almost impossible to prove that the ‘act’ was deliberate,unless of course the notary told someone that they where going to do so.
Omission: “…n. 1) failure to perform an act agreed to, where there is a duty to an individual or the public to act (including omitting to take care) or where it is required by law.”, E&O insurance should cover it.
Errors & Omissions insurance contains an exclusion against deliberate acts of omission. As I mentioned before, it is the court that makes that determination, not you nor me. You have free will and the right to do as you please. If you violate the law and have a penalty to pay, that is on you. I am not sure why you are insinuating that if you fail to do your duty as a notary that the Errors & Omissions will simply pay it. I don’t get it. We should be helping each other comply with the notarial law, not encouraging people to ignore it or violate it.
My only point was that there is no logical reason for the court to determine that a notary willful omitted something. It’s your right to disagree but I’m not too worried.
One example of a deliberate act - off the top of my head and here in FL
Notary does loan signing - runs through docs, grabs them up and leaves cuz they have a packed schedule. Does notarizations at home later after all appointments - illegal in the state of Florida - notarizations must be done in front of the signers.
Fast forward 2 or 3 years - foreclosure commences because homeowners question the validity of the note and/or mortgage - get into depositions and it comes out that notary didn’t sign a d*** thing at the table…was in such a hurry we signed and they left. So, Mr. Homeowner, you did not see the notary notarize the document? No, Sir/Ma’am, I did not. Does not affect the validity of the document, but this would constitute a deliberate act by the notary.
Another - “I’ll fax the document to you, you notarize it and scan it back to me - I’ll pay you $50” - notary says “okay” - deliberate act.
Remember - ignorance of the law is no defense against wrongdoing. The notary MUST know their state laws and carry out their duties pursuant to those laws.
And error or omission? Failing to fill out the venue; failing to fill out the date; in FL, failing to include the new verbiage “via physical presence or via online notarization”…etc etc.
Hope this helps
Whether an act is deliberate or not is a state of mind. For someone an E&O insurance carrier who wants to get out of paying a claim, the trick is to show that it is more likely than not that the notary did it on purpose. That would most likely mean the insurance carrier would have to get documentation or testimony beyond what is contained in the certificate.
If emails could be found showing the notary agreed in advance that the notary would not require that a stranger present any identification document, that would do it. If the notary were convicted of being part of a conspiracy to commit fraud, that would do it.
There are some fine points that I wouldn’t want to guess about. In LindaH’s example of the homeowners challenging notarizations during foreclosure, the court decides the documents were valid, whether or not the notary waited to fill out the certificates, so does not reach the question of whether the notary really waited or not. Can the insurance company bill the notary for the attorney fees because the notary deliberately violated the notary law, even though the violation didn’t cause any harm?
Or, lets say a Vermont notary deliberately leaves out the name of the affiant in a jurat. The oath is found to be invalid, and the signer applies to the insurance carrier for compensation for damages. Can the insurance company refuse to pay, because the notary left out the name deliberately? Or is it an error, because for many years the name wasn’t required in the jurat, and the notary didn’t notice that the law had changed?