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A M E R I C A N A S S O C I AT I O N O F N O TA R I E S www.usnotaries.com 1-800-721-2663 NotaryDigest 17 Years as a Notary Signing Agent L CE E B R AT I N G YEARS By Pamela Montez, Contributing Writer Many things have changed about signing agent for two hours, and drove for an hour back home. I work since I started my career. One thing I’ve learned spent four hours of my time and drove 130 miles for a is that adapting to new requirements and procedures is whopping fifty bucks! I admit that at the time I didn’t realize that the fee I had accepted for the assignment part of this business. I became a notary in 1995 while working at a new job was ridiculously low and a money-loser, but that day I as the office manager of a construction company whose was sure proud of myself! More calls came in and I learned quickly how far I primary focus was commercial construction. One of my duties was notarizing sworn statements and lien would drive. I decided I’d drive one hour away and waivers. About that time, an ad in a magazine about cover the four counties around me. It didn’t take long to being a notary closing agent caught my eye. I ran the figure out that if I made an error, I had to go back and idea by my boss, who was the business owner, and the correct it on my time and my dime and a one-hour drive company’s attorney. As luck would have it, the attorney time was probably too far. I didn’t have anyone to talk to about the business end also owned a title company. of my new venture until I found other Except for my own mortgage, I was notaries to network and have business clueless about mortgage and lending discussions with on Yahoo groups, which documents. All I knew was that I was in probably doesn’t even exist anymore, but it debt and paying monthly for my house. I was about all that was available at the asked the attorney if he would mind giving time for notaries to virtually meet and me a little advice on the subject. He agreed swap experiences. That’s when I started and was gracious about it, but the first really learning about the business. thing he told me was that he was a notary After running my business part time and had never made a dime from having a quite happily for a few years, performing notary commission. He also told me that he Pamela Montez signings after work and on weekends, I had had never heard of a “closing agent” and wasn’t even to make a big decision in 2004. My boss announced he sure if the business I was talking about going into was a was going to retire and sell the construction company. legitimate opportunity. However, he sat down with me He asked me if I would want to stay on with the new one day for three hours and went over everything he owner. I told him that I knew I wanted to do closings full thought I needed to know to perform closings. time, but I was too afraid to step out on my own. This A few years later, I ran across a list of companies that wise and successful man told me “If I had listened to people hired notaries to do closings. I designed an introduction 30 years ago, I would have never had my own company.” letter, made 300 copies of it, and snail-mailed letters That was it -- I figured if he could start a construction every night after work. After about three or four weeks, company out of his garage, I could run a business from I was called by a company called E-Title Agency to take a my home. When I told him I wanted to fly solo and closing an hour south of me. Yay! Exciting! My very first go into my own business full-time, he told me I could take off any time I wanted to and start building up my closing! The loan documents were sent via FedEx to my business. All he asked of me is that I be there to do house. I drove an hour to the buyer’s house, was there payroll and to prepare his contracts. Continued on Page 2 IN B U SIN ESS Notary ChallengePage 3 Beware of Misinformation Page 4 Certificate Missing? Page 5 The “3-C Plan” for Effective Social Media Marketing Page 6 The Impact of Notary Errors on Acknowledgments Page 7 Notary Law Update Page 8 www.usnotaries.com 800-721-2663 FOURTH QUARTER 2015 VOLUME 12, ISSUE 4 17 Years as a Notary Signing Agent, Continued from Page1 And that’s how I got started in my business full-time. It was the middle of the re-fi boom and I was busy right away. There were some nights I would work all day and arrive at the construction company as late as 11 p.m. to get the payroll done or do the work I used to do during the work day. I got very little sleep in those days. I mailed out marketing materials and sent faxes around the clock to companies. I used every resource available to make contacts with companies who would hire me. It finally paid off one day. I received a call from a company that wanted to know if I would be its primary signing agent covering the four counties I decided I would base my business in. What a great boost that was! Because I live in a rural area, what I could do in a day was a bit limited; six closings in one day was about all I could handle. It would take me 11 to 14 hours to get them all in, but I did whatever it took to get the job done. Of course, everything wasn’t perfect. I wasn’t perfect and I made the occasional judgment error. One of my biggest goofs was accepting a closing (for a lot more money than usual) in a county that I don’t cover because of its distance from my home base. I had three sets of documents printed out for the morning’s work; they were in their respective pre-labeled shipping envelopes, which is my habit to keep my work organized. I arrived at the closing (about 120 miles from my home) and realized I had the wrong set of documents! I had grabbed documents for the next morning’s appointments! The borrowers were very understanding and said I could just come back the next day. I explained to them that the documents were date sensitive and these had to be signed that day. I went back and got the right documents and we finished just before midnight. I’ve also had embarrassing situations happen during appointments. When I look back now at some of those moments, they are pretty funny, but they weren’t at the time. At the beginning of one appointment, I walked into a beautiful home with white carpet and a plant stand by the front door that held four plants. As I entered, my purse caught the plant stand and all four plants turned over and spilled soil onto the white carpet. I was horrified! The lady of the house assured me it wasn’t a big deal and her husband laughed and told me that I wasn’t the first person to do that, but, as you can imagine, it was a terrible moment in my notary signing agent career. On another occasion, I was leaving an appointment late in the evening on a Michigan winter night. When I turned around on the front porch steps to say my last good bye, I slipped and fell head first down the steps. Of course, the borrowers rushed to help me back on my feet. Once I was finally upright, I gathered my possessions, which were scattered in the snow, and limped slowly to my truck oozing with humiliation. I also thought I had injured my knee drastically and I cried all the way home. (Fortunately, nothing was seriously hurt except my pride.) I’ve conducted loan signings out in fields on combines on the hottest of afternoons. I’ve notarized loan documents in barns, on the hood of my truck, in stuffed houses where hoarders lived, and even at my own dining room table at three o’clock in the morning for a borrower who worked crazy shifts. I’ll travel pretty much anywhere there’s a borrower who needs for me to show up and notarize loan documents. To me, this is just a big amazing adventure. There have been wonderful borrowers along the way who have offered me coffee, tea, wine, and dinner, none of which I accept — I, like all savvy notary signing agents, strongly discourage borrowers from having anything liquid on the signing table with loan papers. I have been offered and accepted a few insanely high fees. One morning, a call came in and I was offered $1,000 if I would drive two hours to the lender’s office, pick up a set of loan documents, and drive another hour to get them signed and notarized before midnight. Did I drive to their office? You betcha! I’ve worked with amazing companies and some not-so-great companies. Signing agents have to go through their own processes of trial and error to find the good ones and to weed out the bad and ugly ones. Experience has taught me never to accept an assignment from a company that can’t seem to get my check out without me begging. Once is enough; it won’t happen again! Having worked as a signing agent for this many years, I know for a fact that most who hire us from lenders, title companies, and signing services don’t have a clue about notary laws. It’s up to us to take care of our own notary commissions and to operate within our states’ laws. If you have been doing this for any length of time like I have, you know that since 1999 the loan signing business has changed drastically. I can’t even remember the last time a set of documents arrived at my doorstep; everything is now “eDocs” and we print them on our own printers. We have to negotiate harder than ever to get fees that are profitable and the costs of doing business have risen. Many things about the signing agent business have changed. I haven’t liked all of them, but it’s the way it is. I’ve adapted as necessary and I am so glad I’m still a part of the business! (If you have questions for Pamela, please send an email to [email protected] with her name in the subject line.) A Touch of Elegance: Embossed Gold Foil Seals Nothing distinguishes a special document like the inclusion of a gold foil seal crimped with a notary’s embossed seal, but you must be sure to use the embosser and foil seal correctly. You must also be certain that your states’ laws do not prohibit the use of an embosser or a decorative foil seal on documents. To date, the AAN is not aware of any state that disallows foil seals. Embossers aren’t allowed in some states. Many notaries own embossers in addition to their notary stamps in states where embossers are allowed. Some states allow notaries to use embossers as an official notary seal or authorize their use when combined with an inked notary seal impression. 2 Here are the steps for the proper use of a foil seal and embosser: 1. Peform the notarial act and apply your stamp/seal to the document as usual. 2. Apply the foil seal on your notary certificate in a spot where it will not cover any part of your notary seal impression, text, or your signature. 3. If you wish, you may emboss the seal with a notary seal embosser IF your state’s laws do not disallow the use of an embosser. Don’t apply the foil seal and stamp your inking notary seal on top of it. Your official notary seal must be legibly reproduced if copied or scanned. AMERICAN ASSOCIATION OF NOTARIES Notary Challenge (What do you really know?) You know how to perform the steps to a perfect notarization, but are you familiar with some of the less obvious laws and rules that are involved in being a notary public for your state? This challenge has two purposes; one is to encourage notaries to drill into their laws to see what they really say. Read them and commit their meanings to memory. The more you know, the less chance of you being persuaded or bullied into performing an act that’s illegal or invalid. The other purpose of the challenge is to help notaries know how not to be victims of notary lore and misinformation that’s so prevalent on the Internet. All of these challenge questions won’t apply to every reader. For instance, many states’ laws don’t require that notaries use journals or record books to record their notarial acts. Simply skip questions that don’t apply to you. Journals • What must you do with your journal if you do not reapply to become a notary at the end of your term, move out of your state, or no longer wish to be a notary? Arizona’s and Colorado’s laws require that a notary submit his or her journals to the secretary of state in all of these cases. In Texas, a notary would tender his or her journal to the country clerk in the notary’s home county. • How long must you keep your notary journal(s)? Some states require that a notary never destroy a journal; others say that a journal must be kept for a certain time frame. Do you know what your laws say? • By law, what items must be entered in your journal? There are many points of information that a notary may find helpful to record in a journal; however, do you know the exact elements you are required to record according to your state’s laws? Are you aware of any items that must not be recorded? For instance, in Texas, notaries are not allowed to collect thumbprints or to include private information like a signer’s passport or driver license number. Have you investigated to find out exactly what is required of you? Notary Seals • If your commission expires and you do not reapply or if you resign from being a notary, does your state require you to do anything with your seal under these circumstances? Some states have laws about this while other states’ laws are silent. It is important to know if your state wants your seal destroyed by you or if you must send your seal in to the state. • Can you describe the requirements for a notary seal (shape, required elements, etc.) for your state? Companies (like the AAN) should be aware of what your notary seal must look like, but it is also important for you to know. Does your state require that your notary stamp include a border around the outside of it? What type of border does the law specify (e.g., serrated, straight line, or milled)? When you receive a new seal, check that it complies with your state’s law, make sure your name is the one you have been commissioned with, that the date your commission expires is stated correctly, and check its entire appearance to assure it is compliant with your state’s notarial laws. Identifying Signers • Under what circumstances (if any) may you use a credible witness or witnesses to identify a signer? Some states don’t detail the circumstances in which a credible witness may be used, whereas other states’ laws are specific. • Are foreign passports allowed as a method to identify a signer? Some states allow this, others allow it under certain circumstances, and some don’t address it. • What do your state’s laws actually say about a signer’s ID not matching exactly the name stated on the document(s) to be signed by the signer? It’s likely that your laws do not address this, but state (if anything) that the signer must present satisfactory evidence. Be clear on what your laws DO say regarding identifying signers and don’t assume that something you read or heard is accurate. Fees • Suppose you have two signers executing a document, but only one certificate is attached that lists both signers’ names. How much can you charge for the notarial act? Do you charge the fee based on how many certificates there are to complete or is your fee based on the number of signers? This is an issue that frequently confuses notaries. They often assume they may charge based on the number of signers, but their laws actually focus on the notarial certificates they complete. Be clear on what you can charge. • Are you required to issue a receipt for your notarial services? As a best practice, notaries should issue itemized receipts to their clients, especially when performing as a mobile notary. The receipt should itemize the fees charged for the notarial acts performed, as well as other charges such as mileage. This practice is a requirement in some states, yet it’s an easy thing to overlook in the law. What do your state’s laws say that you must do? Notarial Certificates • Are you allowed to correct a notarial error on a certificate after you have completed the notarial act and the client has left the appointment? Suppose a client returns to you the next day because you didn’t sign the certificate. How do you proceed? It seems like the right answer for all states would be that a new notarial act must be performed with a new date, etc. Some states’ laws are clear that a new act must be performed, but it’s not always the case. For example, Colorado’s Secretary of State has a different view. From our Continued on Page 4 FOURTH QUARTER 2015 3 Notary Challenge, Continued from Page3 state-approved Colorado Online Training Course: “Notaries may correct notarial certificates after the fact. The Secretary of State’s office advises that the notary may strike out the incorrect information (preferably with contrasting ink) and initial and date the change. If a correction must be done, it should be added as a new journal entry (if signing again) or simply edit the journal accordingly. The notary should initial and date the change in the journal. Furthermore, it is up to the client, the document drafter, the receiving party, or legal counsel to determine if a correction is acceptable, or if the document must be redrafted.” Dig in and find out what your laws or handbook says about this topic. • If you attach a loose certificate to a document, is there a rule or law that states you must put pertinent facts on the loose certificate to identify the document it’s attached to? Many states’ laws are silent on this, but some notaries, by best practice, note on the certificate the document’s title and the number of pages it contains, as well a few other facts. However, Arizona laws are specific: “If a notary attaches a notarial certificate to a document using a separate sheet of paper, the attachment must contain a description of the document that includes at a minimum the title or type of document, the document date, the number of pages of the document and any additional signers other than those named in the notarial certificate." Does your state have specific requirements? After you look up the answers to these questions, let us know if you learned something you didn’t know or hadn’t thought of before. Write us at [email protected] or post a message on Facebook. Beware of Misinformation from Online Notary “Experts” During the notary dark ages (before 1995 and the arrival of online notary communities), it was seldom that a notary in one state talked to a notary in another state. Today, notaries from across the U.S. interact several times a day in online communities and on social media enjoying peer discussions about notary topics. For the most part, that’s one of the greatest things about the Internet — it allows notaries to meet like-minded colleagues from across the nation. However, we’ve been reminded recently that a common pitfall for a new notary is reading what other notaries say about their states’ requirements and not realizing those requirements or duties don’t exist in his or her state. New notaries are also exposed to incorrect information by misinformed notary “experts” they meet in online communities. Keep in mind that notaries who appear to be authorities may be operating under a false assumption that they “know” something to be true, when the truth is they are passing on wrong information they picked up in forum discussions years earlier when they were just getting started! That super helpful person in your LinkedIn group could be a terrible source of information — in a few cases, notaries have learned that the “authorities” who has been mentoring them don’t even hold a notary commission! This isn’t to say that there aren’t many great notaries to learn from. However, it’s always best to find answers by going straight to a credible course. Protect yourself and your commission. Don’t rely on statements and opinions of other notaries to gain knowledge about your notary duties. Go to viable sources for information: your state’s notary laws and handbook. Read them for yourself. If you don’t understand something or if your laws don’t address a question, contact your state’s notary public administrator, the AAN hotline, or even an attorney for guidance. The Pocket Stamp is Still Big Enough! By Brenda Stone When HB 1683 was passed by the Texas Legislature, it added the requirement of a notary ID number to the elements of the Texas notary seal. I was selfishly concerned that I would have to give up my favorite stamp, but the good news is that I didn’t have to! Texas notaries can still use the Slim Pocket Stamp, the smallest stamp on the AAN’s website and enjoy the convenience of its little footprint and portable case. I can place my pocket stamp on documents with precision and never worry about covering document text or applying it upside down. Through my last two notary commission terms, I have used the Slim Pocket Stamp almost exclusively because it delivers a small but sharp 4 seal impression that measures only 9/16" x 2-1/8" and the case is compact, as well, measuring about 2 ½” x 2 ½” x 9/16.” It’s great for carrying in a pocket or purse. I became a fan of the Slim Pocket Stamp when I worked full time as a signing agent. One of my regular lender clients had documents that were covered from margin to margin with fine print that left very little space on which to apply my notary stamp and there was definitely not enough room to put a second impression if I didn’t apply the first seal correctly. Please note that the Slim Pocket Stamp is also sold on the AAN’s website in states with laws that do not restrict its size. AMERICAN ASSOCIATION OF NOTARIES Certificate missing? There’s a stamp for that! By Brenda Stone, Contributing Writer Notarial certificate stamps are large self-inking stamps (1 ½” x 3”) that reproduce a full notarial certificate on a document with a flick of the wrist. Notaries who notarize multiple documents each day for the public learn quickly that many clients produce documents without notarial certificates. Most of the time, a loose certificate works just fine, but stamping the certificate wording directly onto the document may be a better strategy in some cases. Recently, a new member “Ken” contacted the AAN because two of his recent clients, a married couple, became unduly frustrated with him and left him wondering if he had performed his duties properly. Ken sent a message through the Member Center detailing his experience and ending with “Did I do the right thing? What should I have done differently?” Ken did everything correctly — all that he could have done differently was to use a certificate stamp. His story will illustrate why certificate wording stamps are favored by notaries who work regularly with different types of customers. Ken’s Story – Certified Copy Problems A married couple sought Ken’s services to produce certified copies of their U.S. passports. The copies, said the clients, would be submitted to the secretary of state’s office with a request for an apostille for each of them. Ken created the passport copies and attached a certificate entitled Certified Copy of a Non-Recordable Document to both. Ken made his journal entries using the passports as ID. He completed the notarial acts and handed the finished copies to the clients. They were dismayed to see that Ken’s notary seal wasn’t applied on the same page as the passport copy. To Ken’s surprise, his clients demanded rudely that he apply his signature and another seal directly beside the images of the passports saying that the recipient in the other country expected the seal to be on the same page as the passport and wouldn’t accept it like Ken had prepared it. Ken called the AAN’s hotline to verify he could not stamp and sign the copies, he could sign and seal only the certificate attached to the copies. The answer was that Ken was correct; his notarial stamp should be applied only to his certificate. Ken explained the rules to the clients, but they left in a huff. It bothered him so much that he contacted us again to find out how to avoid this problem in the future. Solution for Ken If Ken had been able to use a certificate stamp, he could have performed a valid notarial act while also satisfying his clients’ wishes -- Ken’s signature and stamp would have been on the same page as their copies. Ken, the AAN appreciates calls and messages from our members. Thank you! If you are having a problem, there are likely 500 other notaries who have had the same problem recently and another 500 who will face it in the next week. Document Drafted by Client This scenario describes another common situation our members have experienced. Suppose that a client calls and asks a mobile notary to meet him at a local McDonald’s to notarize a one-page document. When the two meet, THIRD QUARTER 2015 she learns he divorced recently and has custody of his young daughter. The dad hands over cash for her notary fee along with the document that he typed himself. Watching his daughter on the slide while talking to the notary, he explains that the document gives permission to his ex-wife to take their minor child on a trip to Mexico. The notary looks it over and realizes there’s no notarial certificate. She mentions a certificate will be necessary, but it isn’t a problem because she’s got plenty in her briefcase and they will be done in no time. They get the ID task out of the way and the notary shows the client samples of a jurat and an acknowledgement and he picks one. The notary attaches the loose certificate to the back of his document, the client signs, she performs the verbal ceremony, and completes the notarial act, applying her seal and signature to the certificate. Up until this point, the dad had been keeping his eyes primarily on his daughter in the play area. When he looks at the notarized document, he becomes upset because the notary’s seal won’t be on the page with his statement and signature. He points to the dates the child is allowed to be out of the country with her mother and tells the notary that the mother has pressured him for a month to allow their daughter to be with her for a week longer than he has written in his statement. Indicating the space by his signature, he asks, “Can’t you just stamp it right here?” While the notary is trying to figure out a solution, her client tells her that he’s distrustful of his ex-wife and certain she’ll type another document that will extend the period the child is allowed to be in Mexico. She’s forged his signature many other times, so she wouldn’t hesitate to forge his signature and attach the notary certificate to the fraudulent document. The notary patiently explains that she can only stamp her seal on a notarial certificate. Before she can say another word about how they might fix the situation, the client says he will find another notary. He snatches up the document and stalks off toward the area where his child is playing. The notary makes a note in her journal about the outcome and leaves the restaurant. There would have been no problem if the notary in this scenario could have reached into her briefcase to grab a certificate wording stamp! Word of Caution About Certificate Stamps The text on a certificate stamp’s impression appears as an 8 pt. (or slightly smaller) font. While the text is very sharp and dark, there are some recording offices that won’t accept text on a document that’s smaller than 10 pt. According to the Property Records Industry Association “Thirteen states specify a minimum font size, which varies from 8 to 10 points. A few jurisdictions look to a minimum number of characters per inch.” Therefore, caution should be used when using the certificate stamps on recordable documents like deeds, mortgages, deeds of trust, and other legal documents that will be presented for filing or recording in a county or district clerk’s office. In addition, the stamps are sold on the AAN’s website in five ink colors, but the stamp’s ink should be black for formal documents (especially those that will be recorded or filed). To see a selection of certificate stamps, go to our website, select your state, look to the left, and choose “Notary Stamps.” 5 The “3-C Plan” for Effective Social Media Marketing By Enna A. Bachelor, Contributing Writer One of the standard messages I use to market my notary services is: “You don’t need a notary every day, but when you do, I want you to think of me!” I believe that a primary marketing goal for notaries should be to stay fresh on the minds of their targeted audiences. You want your name to be the first one considered when notary services are required. Notaries provide a unique and important service to the public; unfortunately, it’s not one that is needed by customers on a regular basis. It’s important for us to stay connected with the right audience and using the “3-C Plan” for social media marketing that’s described below will help you do exactly that. THE FIRST C: Compelling Content There’s a saying that’s been around forever: “It’s not what you say, it’s how you say it.” This rings true for marketing, too. The content we use must grab attention, create interest, and be informational. Connect with your audience by including a memorable message with your social media posts. For instance, this advertisement is more compelling than the more generic one below it. Notary services in Metro Atlanta are a phone call away! I come to you! James Johnson – Notary Public Call/Text 888.888.8888 ----Mobile Notary James Johnson 888.888.8888 The first ad has personality. It’s personal and expresses interest in delivering a service to the reader. THE SECOND C: Consistency Establishing and maintaining a consistent presence on social media is key. This powerful platform engages billions of readers. 6 Regular posting about the services you provide helps keep you on the minds of potential clients. I can’t tell you how many times I’ve had clients tell me, “I needed a notary and I remembered seeing your post on Facebook.” You probably wonder how often you should post without alienating potential clients. Countless studies have gone into what is considered the optimal posting frequency across social networks. Kevan Lee, a blogger who specializes in social media marketing techniques, suggests on Buffer Social the following posting frequencies: • Facebook: 10 posts per week • Twitter: 3-14 times per day • LinkedIn: 1 time per day (no weekends) • Google+: 2 times per day (no weekend) Kevan’s favorite posting times for Facebook are 10:08 a.m. and 3:04 p.m. He believes that 8:14 a.m. is where you’ll find the sweet spot on LinkedIn, while the optimal times for posting on Google+ are 9:03 a.m. and 7:04 p.m. During the week, his company posts on Twitter about 14 times between midnight to 10:00 p.m based on studies that have shown that big engagement begins at the third tweet mark. Twitter users should never post more than once per hour. On weekends, he tweets seven times per day between 3:00 a.m. and 9:00 p.m., usually about every three hours. Keep in mind that these numbers are estimates and your targeted audience is unique. Analyze your posting frequency habits and see how you can tweak them to maximize your exposure and increase interest from your client base. It’s important to note that there is a point at which we can over saturate our social media feeds and people begin to disengage. Find your rhythm and be consistent across various platforms. THE THIRD C: Creative Communication Think of every person who reads your post as a potential client or, if not a client, a person who will be asked about the type of service you provide. You want your posts to be memorable, which means that creativity is a must. Think out of the box and develop content that is fresh and edgy. Find a graphic that communicates your message in such a way that you can get your message across Continued on Page 7 AMERICAN ASSOCIATION OF NOTARIES Effective Social Media Marketing , Continued from Page6 with just a few words. It may seem simple, but people will remember your message when you make them laugh. Most people are highly visual. The use of graphics, photos, or video will draw readers to your content. You can also be creative by developing marketing content that leverages what’s going on in your area. Is there a big sporting event, holiday, etc. that your area celebrates in a major way? Think about how you can coordinate your content with those themes. This isn’t an exact science, but practicing the 3-C Plan will step up your marketing game and ensure that you maintain a presence across social media platforms. For best success, implement a plan, tweak it, and repeat. If you have questions or comments on this article, I’d love to hear from you. Please email [email protected] and put “Enna” in the subject line. Until next time, wishing all my fellow notaries marketing success! Do you receive our monthly coupon codes and newsletters? Our monthly emailed newsletters dig deeply into issues that notaries face regularly, and every issue comes with a coupon code to provide you savings on notary supplies. Be sure you are on our email list by signing up here and you’ll receive entertaining and informative articles like the samples listed below. Did you know that AAN members can access thousands of helpful publications through our Member Center? An AAN membership ($19/yr) provides access to a huge library, plus deep discounts on supplies, and priority access to experts through the Member Center who are on standby to answer your notary questions. Eight Tough ID Questions Relating to Notary Signing Agent Work Notary signing agents feel tremendous pressure to identify signers in loan transactions accurately, and rightly so! The documents they notarize relate to large sums of money; large financial transactions create greater responsibility. American Notary History, Tales, and Trivia We sifted through stacks of virtual history books hunting for stories that would illustrate what our notary ancestors’ lives were like a hundred years ago and we were able to dig up a few rare facts and tales about early American notaries public. Notaries: Avoid Employers’ Requests for Unauthorized Notarial Acts Businesses that employ notaries public or provide notarial services as complimentary offerings to customers may not have established notarization policies that are in harmony with their employees’ notarial laws. Frequently, bosses request that notaries perform types of acts that do not fall within the boundaries of the notary employees’ authorized duties. Some of the unauthorized tasks notaries are expected to perform sound very plausible. Notarizations in Eldercare Facilities An AAN member, whom we shall call Jane, contacted the AAN office to report a problem. Jane is an employee at an eldercare facility and she notarized a document for a patient of the facility. The document was an important one that transferred some of the signer’s assets. Jane recently learned that the notarization has been called into question. JOIN US! You’ll be glad you did! FOURTH QUARTER 2015 7 The Impact of Notary Errors on Acknowledgments By Brenda Stone Errors on acknowledgments can produce a mountain of trouble for all parties involved in a transaction. Perform a search on Google for “defective acknowledgments” and you’ll find countless cases in which imperfect notarial certificates are challenged in lengthy court battles that continue for years and aren’t decided conclusively until they reach appellate courts. While many cases based on defective acknowledgments ultimately result in a determination that the flawed certificate in question didn’t cause harm, it takes years and enormous legal bills to get to that point. However, a sizeable number of cases with flawed certificates involved are found to be fatally defective to their underlying documents. Below are two of the most concerning cases that have been decided in the past few years. In Massachusetts, an acknowledgment that doesn’t contain correct language can invalidate a lender’s secured lien. The Bankruptcy Appellate Panel for the First Circuit Court decided in Weiss v. Wells Fargo Bank, N.A. (2013), that the notary’s certificate was fatally defective because it didn’t use the appropriate language required when notarizing a document signed by an attorney-in-fact. In New York, an acknowledgment that doesn’t recite that the notary either personally knows the signer or the notary has ascertained the identity of the signer will invalidate the underlying document. In 2013, the New York Court of Appeals decided in Galetta v. Galetta, 2013 NY that a prenuptial agreement was invalid because of an improper notary certificate. In this case, the husband filed for divorce and the wife wanted to invalidate their prenuptial agreement. Apparently, her lawyer found a weakness in the improper language of the notary certificate and the final decision by the high court was to rule in favor of the wife. Experts contend that this decision’s ramifications may extend to almost any document that the law requires to be acknowledged by a notary, especially in real estate. Be certain that you identify your signer and complete your notarial certificate so that the notarial act is above reproach. The following points are reflective of the research performed for the preparation of this article. They are good reminders for ensuring your notarial acts are faultless. • Acknowledgments – In this type of act, the signer may sign the document before appearing before a notary. The date on your certificate is the date the signer appears before you. • Jurats – In this type of act, the signer must sign the document in the presence of the notary. • Venue statement – Ensure that the venue statement is included and that it is accurate. If it isn’t, correct it. • Certificate language – If the certificate language isn’t substantially like your state requires, you must modify it to conform or attach a corresponding loose certificate. • Corrections to certificate – Draw a line through the text you must correct, write the correct information, and initial the changes. 8 • Name of signer – The signer’s name must be included on the certificate and should be printed neatly. • Representative capacity of signer – If the signer is signing with authority of a power of attorney or as a representative of an entity, complete the notarial certificate to indicate those facts. (If the document is destined for another state, and your state doesn’t allow this type of certificate, explain this to the signer and suggest he or she contact an attorney for advice on how to proceed. Some states require that representative capacity be indicated in the notarial certificate along with the signer’s title, company, and where the company was incorporated in order for the certificate to be properly acknowledged.) • Date – Insert the date of the notarial act on the notarial certificate. • Notary signature – Sign with the signature on file with your state. • Notary name – Print your commissioned name under your signature line. • Commission expiration date – Include your commission expiration date under your signature. • Stamp/Seal – Apply your seal so that it is clear and legible and can be reproduced when scanned or copied. • Deliver the correct verbal ceremony (no exceptions) – Ask the signer if he or she has read the document and is aware of its purpose. You must administer an oath/affirmation if the certificate is a jurat. If the certificate is an acknowledgment, you must ask the signer to acknowledge that he or she signed the document for genuine purposes (or other language required by your state). Court cases have determined that if the signer represents another person (i.e., power of attorney) or an entity, a notary should ask the signer to state that he or she has the authority to sign the document on behalf of that person or entity. • Document the act in your notary record book precisely according to your state’s laws including any significant observations you have, and note that you completed the verbal part of the notarial act. Sources: - Attorney's Title Guaranty Fund, Inc. Underwriters' Bulletin - Mortgage Notary Acknowledgments Continue to Present Problems for Creditors in Bankruptcy Proceedings - Newspaper of the Real Estate Bar Association, Weiss v. Wells Fargo, Use Caution when acknowledging power of attorney documents. - Flawed Notary Acknowledgment Is Lender’s Nightmare - Beware! Incomplete Notary’s Certificate of Acknowledgement Invalidates Agreement AMERICAN ASSOCIATION OF NOTARIES Notary Law Update New Laws Passed and in Effect ■ ILLINOIS – House Bill 2797 – Notary Public e-Application Provides that the Secretary of State may establish and maintain an online application system that permits an Illinois resident to apply for appointment and commission as a notary public. It amended 5 ILCS 312/2-102, 5 ILCS 312/2-104, and 625 ILCS 5/6-110.1 and added 5 ILCS 312/2-102.5. We have been in touch with the Secretary of State and there will be no immediate changes to the application process. Development of the technology is underway. ■ MONTANA – Update to Administrative Rule 44-15-108 Remote Notarizations In 2015, Montana updated its administrative rules to allow a notary to perform a notarial act using audio/video real time technology. The type of technology isn’t defined except to say that it must comply with in 1-5-615 and 1-5-628. The only methods accepted for identifying signers in a remote notarization are (1) the notary knows the signer personally or (2) the signer is identified by a credible witness who knows the signer and either knows the notary or has produced satisfactory evidence to establish identity. Important to note is that the credible witness must be in the same room with the notary when the act is performed. In addition, the signer in a remote notarization must be a Montana resident. The document being notarized must relate to a transaction involving Montana property or personal property titled in the State of Montana (e.g., a car title). The transaction may also be related to a document tied to the courts of Montana or can be related to a proxy marriage defined by MCA 40-1-213 or MCA 40-1-301. Montana’s Notary Public Handbook provides the best guidance for these new laws. ■ TEXAS – House Bill 1683 – Relating to Notary Public Identification Number Notary seals and stamps will change for the first time in many years due to the passage of this bill that updated Section 406.008 of the Texas Government Code. Texas notary laws were updated to state that a notary public’s identifying number must be added to notary seals for all commissions approved beginning January 1, 2016. However, the State Bar of Texas (REPTL Section) issued a statement on October 22, 2015 that encouraged notaries to purchase new stamps with identifying numbers on them as soon as possible, even if they weren’t due to renew their commissions. Read their concerns here. ■ TEXAS – Senate Bill 1726 – Electronic Notarization (relating to Texas Family Code) This bill added Section 406.026 to the Texas Government Code Chapter 406 which states “In a proceeding filed under Title 5, Family Code, if a signature is required to be notarized, acknowledged, verified, or made under oath, the requirement may be satisfied if the electronic signature of the person authorized to perform that act, FOURTH QUARTER 2015 together with all other information required to be included by other applicable law, is attached to or logically associated with the signature required to be notarized, acknowledged, verified, or made under oath.” ■ TEXAS – House Bill 2573 – Deceptive Trade Practices (includes Notaries Public) The passing of this bill added to the Business and Commerce Code Section 17.46 (b) the following language: “Except as provided in Subsection (d) of this section, the term "false, misleading, or deceptive acts or practices" includes, but is not limited to, the following acts: (28) using the translation into a foreign language of a title or other word, including ‘attorney,’ ‘lawyer,’ ‘licensed,’ ‘notary,’ and ‘notary public,’ in any written material, including an advertisement, a business card, a letterhead, or stationery, in reference to a person who is not an attorney in order to imply that the person is authorized to practice law.” ■ TEXAS – House Bill 2235 - Relating to Eligibility Requirements of Notaries Public This bill clarified Section 406.009 of the Texas Government Code to state that the Secretary of State shall reject an application or revoke a notary commission if it is discovered that the notary or applicant isn’t eligible to hold a notary commission. ■ VIRGINIA – House Bill 1562 and Senate Bill 814 – Electronic Identity Management Act These were companion bills that established the Electronic Identity Management Act, an advisory council to establish its standards, and includes term “identity proofer,” which is defined as “a person or entity authorized to act as a representative of an identity provider in the confirmation of a potential identity credential holder's identification and identity attributes prior to issuing an identity credential to a person.” The word “notary” is not included in the act, but this act may affect notaries in that some believe a notary who works for an identity proofer may be able serve as an identity proofer. The other important point of interest for notaries to watch is the standards for technology that will be established under this act. Proposed Legislation to Watch ■ MASSACHUSETTS – Senate Bill 757/2064 – Extensive Notary Law Revision Introduced on November 18, 2015, this 22-page bill is currently in the House Committee on Ways and Means; it would be the first update to notary laws since 2004 and is entitled “An Act regulating notaries public to protect consumers and the validity and effectiveness of recorded instruments.” SB 2064 (originally SB 757) should Continued on Page 9 9 Notary Challenge , Continued from Page 8 be reviewed by all Massachusetts notaries as it is quite lengthy and specific; it will significantly update Massachusetts’s General Laws Chapter 222 and, to date, has no opposition. ■ NEW JERSEY - Senate Bill 333/Assembly Bill 1184 – Extensive Notary Law Revision SB 333 was introduced on January 12, 2016 and referred to the Senate Judiciary Committee. If passed, this bill will revise statutes that govern qualifications and duties of notaries public and other notarial officers to include more specific rules and the right of the notary public administrator to revoke or deny commissions. It also includes the requirement of training, requires that notary journals be kept, and will allow New Jersey notaries to perform electronic notarial acts. ■ NEW YORK – Assembly Bill 6703 – Electronic Notarization This bill was referred to the Governmental Operations Committee on January 6, 2015. The bill would modify the laws governing notaries public amending Section 136 by adding “3. For electronic notarial services, except where another fee is specifically prescribed by statute, a fee not in excess of those specified within this section.” If passed, it will also add Section 137(a) Electronic notarization which will modify the law to include electronic notarization that notably requires physical appearance of signers: “Physical appearance requirement. (a) A notary public shall not perform an electronic notarial act if the document signer does not appear in person before the notary public at the time of notarization. Under no circumstance shall a notary public base identification merely upon familiarity with a signer's electronic signature or an electronic verification process that authenticates the signer’s electronic signature when the signer is not in the physical presence of the notary public.” We are looking for REAL stories from REAL notaries. The Notary Digest is eager to hear from YOU! Have you been fearful, amused, or enlightened from a notary experience? Did you make an error from which others can learn? (Don’t be shy! You can remain anonymous, if you’d like.) Notaries across the U.S. want to hear from YOU, too! SO…TALK TO US! Let us show case YOU! Impart your wisdom and interesting experiences, great or small. Write to us at [email protected]. Members Only Website For a complete list of benefits, visit us online at http://members.usnotaries.net/ AAN members can receive Members’ benefits include: ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ E- notary record book accessible online 24/7 Your own web page Expert advice from top professionals in the notary field Free listing in our nationwide Online Notary Locator Free subscription to our Notary Digest newsletter 5% discount on supplies 5% rewards good toward your next notary supplies purchase Updates on new notary laws that may affect the notary office Online library of information on laws, FAQs, and more Archives of past issues of AAN newsletters and laws Email notification reminders of important events, including your notary commission expiration date and membership renewal date 10 % The American Association of Notaries seeks to provide timely articles for notaries to assist them with information and ideas on managing their businesses and enhancing their notary education. However, the information in our articles is never meant to be legal or tax preparation advice. Please consult the tax professional or attorney of your choice for such important issues. As always, we would appreciate hearing from you. Please feel free to email us at [email protected]. Enter coupon code 982689 Offer valid till 12-31-2016 discount on supplies The American Association of Notaries P.O. Box 630601 Houston, Texas 77263 Hotline: 1-800-721-2663 Fax: 1-800-721-2664 www.usnotaries.com 10 facebook.com/notaries usnotaries.com http://twitter.com/usnotary AMERICAN ASSOCIATION OF NOTARIES
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