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Notary Bulletin

A Notary Mistake Can Be Criminal

New-handcuffs-resized.jpgUpdate: 10-18-21. Shortcuts may save time but they rarely save the Notary whose notarization comes into legal question. Take your time, follow the right steps and avoid potential misconduct. 

It’s an all-too-common occurrence: skipping a step in a notarization. Especially if it doesn’t seem to be important, and you’re dealing with your boss. But it is the kind of situation that should be avoided like the plague because it could land you in more trouble than you want — including possible criminal charges.

The case in question involved a Notary who worked for the owner of a business and performed notarizations as part of her job. The owner decided to apply for an appointed position with a government agency and filled out the required application, including an attached supporting affidavit.

The owner handed the signed application and affidavit to the Notary-employee, who filled out a jurat certificate but did not administer an oral oath or affirmation.

Notary Requirements

Notaries are required by law to administer oral oaths or affirmations when performing jurats or verifications on an oath or affirmation. When the certificate says it has been “signed and sworn to,” or words to that effect, the Notary is required to administer an oral oath or affirmation.

No exact language is prescribed for the oath or affirmation, so I ask this question of the document signer: “Do you solemnly swear or affirm, subject to the law of perjury, that the information contained in this document is true and correct?” The signer should answer orally, “Yes.”

In addition, almost all states have laws that make it “official misconduct” (or something comparably titled) for public officials, including Notaries, to fail to carry out their official duties — and that could include a willful or negligent failure to administer a required oral oath or affirmation.

The Lie And The Risk To The Notary

It was discovered that the business owner had lied on the application about some important background information. The local prosecutor charged the boss with the felony crime of perjury, for lying in the affidavit. Then, the prosecutor considered charging the Notary with official misconduct.

The Notary was granted immunity to get her cooperation, and she admitted that she failed to administer the required oral oath or affirmation.

I was asked by defense counsel to provide my expert opinion about whether the business owner was guilty of perjury since no oral oath or affirmation had been administered. Unhesitatingly, I concluded that the boss had not committed perjury because the boss had not been placed under oath or affirmation. The boss had lied, but not under oath. Ultimately, the boss avoided prosecution for felony perjury, and the Notary avoided being charged with official misconduct (although the Notary had clearly failed in her duty).

Nevertheless, this experience was very bad for both the business owner and Notary. They were embarrassed by the negative publicity in the media, they had to pay a lot of money for legal and expert services, and they lost a lot of their time to the legal process.

Even though the Notary escaped criminal charges, she faced disciplinary proceedings from the Notary oversight agency, which filed an administrative complaint against her.

The Lessons 

This case illustrates several lessons for Notaries:

  • Know when an oath or affirmation is required, and administer it orally.
  • Record the fact that an oral oath or affirmation was administered in your Notary journal entry.
  • Do not take shortcuts in performing notarizations for a boss or anyone else.
  • Be aware of the crime of official misconduct, and avoid it like the plague.

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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.

View All: Best Practices

18 Comments

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Yuktia Manuel

09 Apr 2018

I created a check sheet to use with each client and check off type of services were needed etc... Its a headache but it has kept me out of trouble plus I video all oaths I have to do.

Brandy Palau

09 Apr 2018

Would you mind sharing your spreadsheet? I agree the extra work is tedious but I'm sure it's well worth it.

Shelly

26 Apr 2018

If an attorney who is also a notary drafts the marriage settlement agreement and 9 warranty deeds for their client and the clients spouse does not have legal counsel but goes to attorney/notary’s office and signs all the documents that have the attorney’s name and law firm name on them and the attorney notarizes for the clients spouse who is not a client. Is this criminal and are those documents consider invalid public records after they are filed?

National Notary Association

26 Apr 2018

Hello. We are sorry, but we cannot offer legal advice or opinions on whether documents are valid or invalid in a court of law, and we cannot offer you a legal opinion whether a crime has taken place or not. You would need to contact a qualified legal professional such as attorney for legal advice on this issue.

MisterJ

19 Jun 2018

I am always very careful to make sure and administer the oral portion of the notarization if the notary certificate calls for it. Apparently, many notaries are neglecting this and the public is not aware of it, as every time I do so, the signer is absolutely flabbergasted at the very notion of swearing or affirming anything. Also, when I have taken a document to another notary public for notarization, they have never administered the oral portion. Dear notaries, please make sure you are following all the necessary steps, and that you are actually familiar with the different types of notary acts!

Aarono Cooper

26 Jun 2018

Every day I hear, I have bought and sold many houses and not once have I had to do that.". This response us when I administer the verifications upon oath, affirmations, and take the acknowledgments. It is a sad commentary on the education level of Notaries Public in WA. I have even had major title companies ask, why did you put my client under oath? The enquiring persons are the ones who gave me the document that included a jurat!

Brian

30 Nov 2018

A Notary knowingly was using a False document in my own expence , did not respect the signed PROMISE TO PURCHASE Agreement and illegally and by thread took portion of my money forcing me to sign that I had accept it voluntiarely. What happens next ?

National Notary Association

30 Nov 2018

Hello. If you have reason to believe a Notary has committed an illegal act and wish to report it, you should contact local law enforcement or submit a complaint with the CA Secretary of State's office at https://www.sos.ca.gov/notary/file-complaint/.

Chris Almager

10 Jun 2019

A notary notarized a paper without my signature then my signature was forged

Mary

30 Sep 2019

What if they answer, "Yes, but then add, to the the best of my knowledge"? Is that acceptable or do we press for just a "yes"?

National Notary Association

02 Oct 2019

Hello. We're sorry, but we did not understand your question. Can you clarify what question is being asked in the situation you are describing?

Betty Dedman

30 Sep 2019

This is what I do on a NotePad for every loan signing: Smith(alias) Shipping Information ABC Title/DEF Vendor Smth, 09-30-19, city $XXX.XX (my fee) FedEx/UPS#/documents scanned back DEF Vendor/Lender/Title Company's Job Order# DEF Vendor (I copy and paste the above to my outgoing mail ***} Smith Notarizations, 09-30-19 Mortgage (15 pages)--35-49/118 SIgnature/Name Affidavit (1 page)--77/118 ...others *** “Do you solemnly swear under the penalty of perjury that the information in this document is true and correct to the best of your knowledge, so help you God?” I print this out and take it with me. Putting the page #"s on the notarized documents helps in a search through the documents. I can also write where the US Patriot Act, RTC's, CD's and/or Borrower ID Information (not US Patriot Act) goes in the package, behind what document, so that I can fill out the ID information in my journal AND on the US Patriot Act at the beginning of each signing. I also like to have them sign the RTC's bc the borrowers get 3x to get their signature right before they spoil any of the other documents. Hope this helps.

Ardel Richter

26 Oct 2020

Long ago, a notary asked a question that was never answered: If, when giving the Oath, the Notary says 'Do you swear or affirm that this statement is the truth?' and they answer "Yes, to the best of my knowledge." The notary asked if that was sufficient or if she should press them for a simple Yes or No. Or what?

National Notary Association

26 Oct 2020

Hello. When responding to a Notary administering an oath or affirmation, the person taking the oath or affirmation then answers "Yes" or "I do." The person must speak clearly and audibly so the Notary can hear and understand the response. Some states, such as California and Texas, provide wording for the Notary to use for an oath or affirmation. In states that do not require statutory wording, common phrasing for an affirmation for a jurat, verification or affidavit might be: "Do you affirm that the statements in this document are true to the best of your knowledge and belief?" For more information on administering oaths and affirmations, please see this article: https://www.nationalnotary.org/notary-bulletin/blog/2015/05/your-guide-notary-oaths-affirmations

Imelda Donaldson

26 Oct 2020

When I first became a notary back in 2012, I went to a local notary office to get sworn into office and she told me that she was not able to administer an oath and swear me into office. She told me I had to go to my state capitol, Austin Texas, which was 3 hours away. I told her no way! I told her that the Secretary of State of Texas have instructed me to go to a notary to get sworn into office. After quite a lengthy discussion an argument, she finally did it for me. I was flabbergasted, I went home and started calling other local notaries and every one of them told me they've never been sworn into office. It was at that point I realized but something is very wrong in Texas. Texas requires no training at all to become a notary and do your notarial duties. It is very scary indeed! Before that, my husband and I had refinanced our home and a notary brought the loan package over to our house for signing oh, she told me to write my information in her notary journal and I was green, didn't really know what I was doing. I promptly wrote my driver's license number in her book and then she corrected me and told me that I should not have done that. Wow! Unbelievable! I have never allowed any of my notary customers to write in my book. I can tell other stories but this is getting too long. Please if you are a new notary oh, get some good training!

Tony Dadoush

19 Mar 2021

The bar for entry in this profession is far too low considering the gravity of our work. In almost any state just about anyone can become a notary without little to no education or vetting. I don't believe I have ever seen the volume of post licensing questions about how to administer our duties for the most basic of tasks in any other line of work, Ever. No other career puts so much responsibility in the palm of your hands with as scant a screening, vetting and education process such that simple duties and responsibilities remain unknown to the individual post licensing and pathway to proceed to bungle, botch or otherwise err in the process of doing your job. Know what your getting into, what is required of you and what your responsibilities and liabilities will be, BEFORE getting commissioned. It will save you money, time and heartache and potentially jail time if your not careful. Rant over. Sorry for venting, just smh everytime I contemplate the frequency with which I see "Notaries" asking questions about a, b or c, After they have received their commissions, that should have asked, answered and learned well before then.

Deanna wright

10 Aug 2021

My dad's trust showed a change that occurred before he died ,the trustee s wife notarized it which gave her and her hubby lots more money and took away $100,000 from me . It's 2 pages the first page was drawn up by them and I believe they changed what my dad had told me .the original lawyer passed away five years before any of the change was written ,it looked totally wrong .

Candice Angotti

25 Oct 2021

So important to administer the Oath for Jurats/Affidavits. I had an occasion where realtors were present and they interrupted me and started laughing. Yes, laughing. She said, oh, you don't need to do what the notary just said about taking an oath. I looked at the realtor, and said, are you a notary? No, was her response. Well, then you would have no way of knowing that this is required under notary law would you? She didn't say another word. I started over with my explanation of how as a notary it is my responsibility to properly confirm the ID of the signer, and when we need to administer oaths. Took my time and the realtor was livid.

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