Two weeks ago we detailed a thorny scenario in which a client asked a Notary to handle something called a “Notary presentment.” Essentially, the document asserted an outlandish claim that the local county government owed him $1 billion.
The Notary was being asked to do several tasks:
- Witness him mailing document;
- Sign a certificate attesting to that fact;
- Accept any return correspondence, if received; and
- Sign a certificate later stating what, if any, response was received or if no response was received.
Unlike most other notarizations, this requester sought to involve the Notary in the activity. The document itself seems dubious, and there are reasons to be concerned.
So how should you respond?
What you said
This scenario sparked a lively response from the Notary community.
“No, I would absolutely for no reason notarize such a claim. Too many questions, and uncertainty,” wrote M. Luisa Nides.
“I would call the NNA Hotline and ask their advice, but at first glance, I am inclined to say no to this request. I feel like the requestor is asking for something unethical of me given the ridiculous amount that is referenced in the document,” Cindy Kraeber noted.
“This is a strange request indeed; however, California Notary laws dictate that the Notary cannot take an acknowledgment or a jurat for any document for which he is a part. Given the fact that he has used the Notary's return address and wants the Notary as a witness, there is no notarial act in this case for California,” said Verne Gordon.
“I would not do the request immediately,” wrote Betty Swammy. “My state (DC) may not authorize this presentment. I would tell that person that I must research the jurisdiction requirements. (Then) I would call him with my research results.”
“If all he is needing is a witness to say the document was mailed, he needs to send it certified mail with a signature required, to show they received it,” said Kathy Rider. “I might notarize his signature on the document he's sending, but nothing else. I don't want it coming back to my address.”
Standards of practice
This scenario raises several questions that need to be answered before you understand how to respond:
- What is a Notary presentment?
- Is it an authorized act that you can perform?
- What is your responsibility if you suspect the request is illegal?
The elements of the scenario indicate that the client is associated with the so-called sovereign citizens movement, which claims that the individual is “sovereign” and immune from federal, state and local laws. According to law enforcement agencies, adherents have used a variety of legalistic maneuvers to avoid paying taxes and other debts, levy financial claims against various government entities and officials, engage in “paper terrorism” and commit fraud. Sovereign citizens go to a Notary out of a mistaken belief that a notarization makes their documents legitimate.
In this case, the Notary presentment is part of an action called a protest. Essentially, a protest is a method under the Uniform Commercial Code by which banks and financial institutions make a legal claim for an unpaid debt. It is a complicated and archaic process that has been largely superseded by more modern collection methods. That said, laws in many states still allow Notaries to perform protests while some permit only certain Notaries to do so.
With a “presentment,” the Notary is asked to certify that a financial demand has been presented to the individual or entity and note whether or not a response was received. The Notary’s return address is used because the response must be received by a certain date as specified in the demand. The point of the protest is to obtain evidence to present in court that the demand is legitimate and to persuade the court to award a judgment placing a lien on the defaulter’s property.
But are you as a Notary authorized to perform a protest? It depends on where you are commissioned. Three dozen states and the District of Columbia authorize Notaries to perform protests. But some states restrict who may perform them or urge caution.
California, for example, only permits Notaries who are employees of financial institutions to perform a protest in the course of their employment with the financial institution. Oregon and Nevada have similar restrictions.
In Alaska, the Lieutenant Governor’s office discourages Notaries from performing protests and recommends consulting the office if asked to handle one.
Other states do not permit Notaries to note protests. Florida, Arizona, North Carolina and Nebraska are among them. Make sure to check your state laws or Notary handbook.
In this scenario, the questionable claim made in the document might understandably raise concerns on your part. But can you refuse the client’s request over it? Again, that could depend on your state.
Arkansas, for example, permits protests, but also allows Notaries to refuse a request for any reason. Several states, including Pennsylvania in a new law that takes effect October 26, 2017, also permit Notaries to refuse a request unless the refusal is not prohibited by any other law.
A Mississippi administrative rule actually requires Notaries to refuse a requested notarization if they have good reason to believe it is for an unlawful or improper purpose.
The laws or professional standards of practice in at least three states say that Notaries do not have the authority to determine whether a document is for a legitimate purpose. These include Massachusetts, New Mexico and Rhode Island, all of which permit Notaries to perform protests.
However, New Mexico also allows Notaries to refuse a request of they have good reason to believe that the notarization or transaction is for an unlawful purpose.
If you live in a state that permits protests but does not have a law or rule stating when you may refuse a request, the NNA recommends that you follow The Notary Public Code of Professional Responsibility. Standard I-E-2 states: “The Notary shall decline to notarize if the Notary does not feel sufficiently knowledgeable or competent to perform properly any requested notarial act.” Fittingly, the illustration provided for the Standard is a protest. That means you can refuse the presentment if you are not familiar with its requirements.
Related Articles:
When to say 'no' … and when refusing a notarization is not allowed
Additional Resources:
Tips & Tutorials for Notaries