Illinois - New Identification Law - New Record Law

VANCURA COURT CASE FAQs

The precedent set by Vancura v. Katris expands the duties of Notaries and widens employer liability for inadequately trained or supervised Notaries. The solution for business is Trusted Notary™ Certification. Offered exclusively by the NNA, Trusted Notary™ Certification is professional training on best practice procedures that enable Notaries and their employers to meet their obligations under this ruling.

The Case In General
What happened in the Vancura v. Katris case?
What losses were sustained by the plaintiff/appellee?
When did the events at issue in the case occur?
What were the claims made in the case?
What was the disposition of the case?
What did the Trial Court decide?
What did the Appellate Court decide on appeal?
Is an employer liable for an employee-Notary's misconduct?
Is the decision of the Appellate Court considered "law"?
Does the Appellate Court ruling affect Illinois employers of Notaries only, or all employers of Notaries?
Has the Appellate Court decision been appealed?
What happens in the interim while the case awaits final disposition?

The Notary
What can Notaries learn from this case?
Was the Notary involved in the case found liable?
How much did the Notary settle for?
Did the Notary's bond cover the settlement?
What misconduct or errors did the Notary commit?
What was the Notary's idea of how to identify a signer and why was it wrong?
Did the Notary keep a journal?
What best practices should a Notary follow to properly notarize?

The Employer
Was the employer involved in the case found liable?
What can employers learn from this case?
How can employers train their employee-Notaries in how to properly notarize?
How can employers properly supervise their employee Notaries to ensure that they properly notarize?
Does the Appellate Court's mandate for employers to supervise their Notaries override the Notary's duty to follow the law?

The Case In General

What happened in the Vancura v. Katris case? While the events in the case are many and multifaceted, essentially the case involved a fraudulent real property transaction. Richard Vancura, the legitimate owner of the real property, was defrauded when an Assignment of Mortgage document containing Vancura's forged signature was notarized without Vancura present.

What losses were sustained by the plaintiff/appellee? Vancura, the plaintiff/appellee, suffered losses in the amount of $110,000, plus interest.

When did the events at issue in the case occur? The events at issue in the case occurred in 1994-1995.

What were the claims made in the case? A total complaint of five counts against multiple parties was filed in the case. Two of the counts — the violation of the Illinois Notary Public Act and negligent training and supervision — are the most relevant to Notaries and their employers.

What was the disposition of the case? The case was tried in the Circuit Court of Cook County in September, 2005, through January, 2006. The case was appealed to the Illinois Appellate Court and its ruling was delivered on December 26, 2008.

What did the Trial Court decide? In the matters most relevant to Notaries and employers of Notaries, the Trial Court ruled that Kinko's had a common law responsibility to train and supervise employee-Notaries according to a reasonable standard of care. This standard of care required that to protect the public from harm, Notaries employed by Kinko's must understand Notary requirements and be supervised to ensure that they are performing their duties properly. In addition, the trial court found Kinko's liable for its Notary's official misconduct based upon on 5 ILCS 312/7-102, a statute on employer liability.

What did the Appellate Court decide on appeal? On December 26, 2008, the Appellate Court reaffirmed the trial court's judgment on the common law negligent supervision and training count, but reversed the statutory employer liability claim based upon 5 ILCS 312/7-102.

Is an employer liable for an employee-Notary's misconduct? According to 5 ILCS 312/7-102, an employer of a Notary may be liable for the Notary's official misconduct if the Notary was acting within the scope of the Notary's employment at the time the Notary engaged in the official misconduct and the employer consented to the Notary's official misconduct.

Is the decision of the Appellate Court considered "law"? Yes, as "case law" the decision is as binding as statutory law. The decision must be followed by Illinois trial courts in deciding similar cases.

Does the Appellate Court ruling affect Illinois employers of Notaries only, or all employers of Notaries? The Appellate Court ruling affects all Illinois Notaries and employers of Notaries. It could potentially affect Notaries and employers of Notaries in other states if a court in a state applies the case to a current cause of action.

Has the Appellate Court decision been appealed? Yes. Kinko's has filed a motion to reconsider with the Illinois Appellate Court and appeal with the Illinois Supreme Court.

What happens in the interim while the case awaits final disposition? The decision of the Appellate Court is published law that must be followed by all Illinois trial courts in deciding similar cases.

The Notary

What can Notaries learn from this case? (1) Identifying a signer with an ID card by simply comparing the signature on the document to the signature on the ID card presented by the signer to ensure the signatures match can lead to the kind of fraud perpetrated in this case; (2) The Notary's seal must be kept under the Notary's direct control when not in use; (3) Notaries must never allow their seals to be used by another person; (4) Following the letter of the law may not be enough to fulfill the Notary's complete duty to notarize properly. In areas where the law is silent or unclear, Notaries must follow widely-held best practices for notarizing correctly; (5) Notaries should obtain only the best training in their duties and should receive updated training to refresh their skills; (6) Notaries should keep a journal of notarial acts and fees in case a dispute arises in the future over a notarization; (7) Notaries can be held liable for misconduct and negligence by a court; (8) Employee-Notaries should welcome and submit to any law-based supervision of their notarizations by their employers; and (9) Notaries can obtain insurance to mitigate risk of a misstep.

Was the Notary involved in the case found liable? The Notary in the case was found liable by the court because he settled in advance of the trial. The facts surrounding the Notary's misconduct in the case were undisputed and a judgment of $30,000 was entered against the Notary by the Court.

How much did the Notary settle for? The Notary settled at the time of trial and the Court entered a judgment against the Notary for $30,000 based on an agreement of the parties.

Did the Notary's bond cover the settlement? No, because the bond amount in Illinois is only $5,000. Even if the Notary's bond paid a portion of the judgment, the Notary was still liable to the surety for the amount paid on the bond. The remainder is borne by the Notary or the Notary's insurance carrier, if the Notary was insured for losses.

What misconduct or errors did the Notary commit? (1) The Notary either improperly notarized the signature on an Assignment of Mortgage without adequately identifying the signer or he carelessly or consciously allowed someone else to affix his seal on the Assignment; and (2) The Notary's unsound continuous practice of accepting an oath and pictureless ID card, and to only focus only on determining that the signatures on the ID card and document matched, would have permitted an imposter to sign the Assignment of Mortgage.

What was the Notary's idea of how to identify a signer and why was it wrong? As part of the discussion of Kinko's inadequate Notary training program, the Court noted the Notary's practice of relying on an identification card with a signature only and to require a signer to swear an oath at the time of notarization that the person is who he claims to be. The court opined that these practices fell short of the statutory requirement and best practices espoused in the Model Notary Act, which the court relied upon to "flesh out" the unclear and inadequate Illinois statute.

Did the Notary keep a journal? Yes. The Notary kept a spiral-bound journal but it was subsequently lost and not available as evidence in the trial.

What best practices should a Notary follow to properly notarize? The Appellate Court specifically relied on the Model Notary Act to provide a more complete definition of "satisfactory evidence of identity" than was provided in the Illinois Notary Public Act at the time the fraud occurred. The Model Notary Act, termed "a pervasive authority" by the Appellate Court and The Notary Public Code of Professional Responsibility comprise the most complete collection of Notary best practices available today.

The Employer

Was the employer involved in the case found liable? Yes. The employer was found liable for failing to train and supervise an employee-Notary whose misconduct resulted in financial harm.

What can employers learn from this case? (1) Significant harm can be inflicted upon any party relying on an improper or negligent notarization; (2) Employers can be held liable under the common law for failing to train or inadequately training employee-Notaries; (3) Employers can be held liable under the common law for failing to supervise or inadequately supervising the notarial duties of employee-Notaries; (4) In Illinois, employers can be held liable under the Notary Public Act for an employee-Notary's official misconduct if the employer actively or impliedly consented to the misconduct; and (5) Employers must not take possession of an employee-Notary's official journal and seal upon termination of employment; (6) Statute cannot address every responsibility of a Notary; in order to ensure that Notaries perform every responsibility with reasonable care, employee-Notaries must be versed in widely-accepted Notary best practices.

How can employers train their employee-Notaries in how to properly notarize? (1) Make sure that a professional trainer skilled in Notary law and best practices teaches employee-Notary training courses; (2) Develop objective indicators, such as an examination and simulations of actual notarizations, to ensure that employees master the material taught at Notary training classes; (3) Make sure training courses include instruction on how to secure the Notary seal; (4) Don't just teach employee-Notaries what they must do right; also teach them what they can do wrong and how it will expose the Notary and organization to risk; (5) Thoroughly vet the content of a proposed Notary training course through company counsel, a deficiency which was cited by the Court in the Kinko's case; (6) Provide employee-Notaries with materials and resources to expand their knowledge of Notary best practices after attending a course of instruction and during the time they notarize for the organization; (7) Require periodic refresher training at the beginning of each new commission term at a minimum and more frequent training, if possible.

How can employers properly supervise their employee Notaries to ensure that they properly notarize? (1) Train all managerial and supervisory staff in the laws and best practices of notarization; (2) Conduct unannounced observations of notarizations performed by employee-Notaries; (3) Have employee-Notaries occasionally debrief supervisors on the notarizations they perform and discuss any issues and problems that arise; (4) In the presence of the employee-Notary, ask to inspect the journal to ensure that proper procedures were followed for all notarizations recorded in the journal; (5) Incorporate into employee performance reviews a discussion about notarial duties; (6) Thoroughly qualify candidates holding Notary commissions who are interviewing for positions in the organization whose duties require performing notarizations; (7) Provide a secure place for each employee-Notary to secure his or her official seal and journal when not in use and ensure that this area remains locked and accessible only to the employee-Notary.

Does the Appellate Court's mandate for employers to supervise their Notaries override the Notary's duty to follow the law? No. In all instances, the law — and specifically the Illinois Notary Public Act — is the Notary's highest authority. If a dictate of an employer conflicts with a duty contained in the statute, the Notary must follow the law. Ideally, the employer's supervision should reinforce the Notary's duty to notarize in conformance with the statutes. The Appellate Court's mandate for employers to supervise was given so that employer's could protect the business or organization from the damages that could harm the public from an improper notarization.