As a Notary, what would you do if a client showed up and wanted to use a signature stamp to sign the document? That is just what happened to an actual Notary who was surprised and unprepared to deal with the situation. The Notary simply allowed the notarization to proceed like any other notarization — except for one detail: The Notary ended up having to defend herself against a million-dollar lawsuit.
While the case involved other Notary issues as well, it all started because of the signature stamp. The argument was made by the party bringing the lawsuit that the signature must have been forged. And, in this case, the impression of the signature stamp was of such high quality that it was nearly impossible to tell the signature had been stamped rather than handwritten.
This particular case revolved around a number of issues, including the definition of a signature, special requirements for a signature by mark and proper journal-keeping practices.
What is a “signature?”
The legal definition of a signature in virtually every state focuses on the intention of the signer. Thus, a signature is any writing, mark or symbol intended by the signer to serve as his or her signature for the purpose of authenticating the instrument on which it appears. The most common kind of signature is the standard handwritten “John Hancock.”
However, a mark or symbol such as the image of a coat of arms or other graphic image that is drawn by hand, stamped or embossed onto a document would constitute a signature if applied by its authorized user with intent to serve as a signature. For instance, in ancient times, members of the clergy, the nobility and other persons of wealth often used the impressions of the unique images on their signet rings as their signatures. Today, the most common analogy is the handmade “X.” And you do not have to be illiterate or physically unable to write in order to adopt a mark or symbol as a signature.
Without question, a signature stamp applied by the individual whose name appears on the stamp constitutes a signature. Therefore, in this case, I testified that the document signer had lawfully signed the document.
Ideally signers using a mark or symbol will have their names written by the mark on the document to inform other parties of the meaning of the mark, as some state Notary statutes require.
What is the Notary’s responsibility?
In Notary statutes, the states take two different views of a signature by mark.
Some state Notary laws regard a signature by mark to be an ordinary signature not requiring any special steps by the Notary to validate it. Other states, however, treat a signature by mark as out of the ordinary and require the Notary to follow a specified procedure to validate such a signature. The purpose of the extra steps is to help protect against possible forgery and fraud.
Those extra steps may require the Notary to have one or two other witnesses observe the signature by mark; to have the witness or witnesses sign the notarial certificate and/or the Notary journal entry for the notarization; and for the Notary to note on the notarial certificate that the signer’s signature was made by mark and to name the signer.
Regardless the approach taken by state Notary law, Notaries should always take three precautions when notarizing a signature executed by a mark, such as with a signature stamp:
1. Always note the name of the signer on the signature line and notarial certificate. Unfortunately, not all documents contain the typed name of the signer underneath the signature line and many notarial certificates do not require the Notary to name the person whose signature was notarized. The printed name of the signer underneath the signature will identify the mark as the signer’s signature. The printed name of the signer in the notarial certificate will make it clear to everyone that you notarized that individual’s mark.
2. Always record every official act in the journal, even if not required by state law. Any out of the ordinary event that occurs during a notarization should be noted in the journal as well. This applies to a signature by mark. Without question, a signature stamp applied by the individual whose name appears on the stamp constitutes a signature. Include the names and signatures of any witnesses. Also remember, the journal entry should be signed by the document signer using the same mark. The detailed journal entry could help you to remember the circumstances of the notarial act long after the fact and in case the matter ends up being challenged.
3. Proofread both the notarial certificate and journal entry, and make any necessary additions or corrections prior to concluding the notarial ceremony.
The jury verdict
In this case, the state where the notarization took place required its Notaries to take special procedural steps when notarizing a signature executed by mark, yet the Notary had not taken any of those extra steps. However, the Notary had kept a detailed journal entry, and that entry identified the unusual circumstance of the signing of the document by a signature stamp. As a result, I told the jury the signature was lawful, there was no attempt at concealment or fraud, and, overall, the notarization was valid.
An old proverb says, “Injustice should not win on technicalities.” The jury and judge agreed, and the Notary was exonerated. But not before having to go to court and defend her actions — at great expense.
Michael Closen is Professor Emeritus at the John Marshall Law School in Chicago, Illinois. A respected consultant on model Notary statutes and legislation, Closen served on the drafting committees for The Notary Public Code of Professional Responsibility and various editions of the Model Notary Act, and recently authored Professor Closen's Notary Best Practices: Expert's Guide to Notarization of Documents.
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