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Illinois Court Sets Nationwide Standard For Notary Employers

A relatively obscure appellate ruling in the nation’s heartland carries implications that reverberate from coast to coast, potentially affecting the business practices of employers and the way liability law is interpreted by the courts.

In Vancura v. Katris, the Illinois Appellate Court held a national photocopy chain directly liable for the misconduct of a Notary employee at a suburban Chicago store because the business failed to properly train and supervise him — even though state law imposed no such requirement.

The case centered around a real estate deal that involved a Notary’s acknowledgment of two documents containing the forged signature of plaintiff Richard P. Vancura. Notary Gustavo Albear admitted that he notarized one of the documents but denied notarizing the second. He did admit that the seal on the second document appeared to be his. During the trial, Albear testified that he only required signers to present an ID with a signature — and not a photo — so he could match it to the signature on the document.

While the appellate court rejected some of the trial judge’s findings against Albear’s employer, it upheld what may turn out to be the most far-reaching conclusions — that the employer was liable for damages because it had a broad, legal responsibility to make sure its Notaries followed notarial best practices above and beyond what state law required.

According to the appellate ruling, the employer “knew or should have known that [the Notary’s] failure to positively identify persons requesting notarizations through pictorial identification and signature documents such as local driver’s licenses would, sooner or later, permit fraud or forgery to occur. When the purpose of notarization is to prevent fraud and forgery, adequate identification involves more than accepting a customer’s personal statement and signature exemplar.”

The court specifically cited the standards of conduct and training detailed in the National Notary Association-crafted Model Notary Act. A legal opinion penned by the prestigious national law firm Proskauer Rose concluded that the Vancura ruling could have a national impact because courts in other jurisdictions can apply the same principles used by the Illinois court.

“The (Illinois) Court relied on the standards set forth in the Model Act with respect to what constitutes satisfactory evidence of identification, proper maintenance of a notary’s seal, and what constitutes consent of an employer to a notary employee’s misconduct,” writes Arthur F. Silbergeld, a partner in Proskauer Rose. “The Court reasoned that because the state statutes were silent on those issues, it was reasonable to look to industry standards to determine what is considered reasonable conduct by a Notary.” The appellate court was especially impressed with the “expertise and representative breadth of the Act’s drafters,” comparing it to model acts and codes of conduct drafted by the American Bar Association and other professional organizations.

In other words, where the law fails to set a standard, the Model Notary Act should act as a guide — not just for Notaries, but for their employers, the public officials who regulate them, and the courts that ultimately decide liability when a transaction goes wrong.

The Act offers a clear outline of what constitutes good Notary training, which should be conducted by a knowledgeable professional and culminate in some sort of test that gauges the trainees’ understanding of what they have learned. Additionally, the Notary Code of Professional Responsibility provides a solid set of guidelines for ethical behavior by Notaries.

Those who supervise Notaries also should have some knowledge of what they can and cannot do, and should periodically check up on Notary employees to ensure they’re following the right procedures.

One fact that emerged during the Vancura case was that Albear’s supervisor had no knowledge or training, and lacked any guidelines to ensure Notary employees adhered to sound procedures. These include verifying the signer’s identity through a government-issued identification card that includes a photograph, signature and physical description of the bearer; storing the journal and seal in a secure place; making sure the journal is a bound book that can’t be altered by removing pages; and ensuring that the signer personally appears before the Notary.

In addition to a well-designed training program that covers all facets of state law and industry standards, the NNA recommends that employers of Notaries seek certification for their employees under a program such as the Trusted Notary™ Certification Program or Certified Notary Signing Agent® designations. Both ensure that Notaries are familiar with the procedures that are critical to maintaining the public’s trust.

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