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Notary Question: ‘Can I get sued even if I didn’t do anything wrong?’

Updated 3-3-22. The short answer is yes. As an attorney who has handled fraud cases for more than 20 years, I know from experience that the Notary is almost never the guilty party. In the overwhelming majority of swindles I’ve seen, the Notary wasn’t in league with cheaters. Instead, they were deceived just like the other parties were. Unfortunately, if something goes wrong in a real estate transaction, parties are still likely to assume the Notary was either negligent or complicit in the wrongdoing. And then, the Notary might be named in a lawsuit.

Most people don’t realize how easy it is to forge documents, signatures, or Notary stamps, or how easy it is to obtain a fake ID so realistic that the Notary can only spot it with the assistance of technology. So people might wrongly assume the Notary was sloppy or intentionally turned a blind eye in cahoots with the scammer.

But there’s a big reason thieves don’t typically partner with Notaries: greed. They don’t want partners because they don’t want to share the loot. In fraud cases, if a Notary slips up, it’s often because they too were conned by the con artist.

Even if a Notary is snared in a fraudulent transaction, they’ll be fine in the end if they have done their job well, fully verified the authenticity of the ID, matched it to the person sitting in front of them and properly witnessed the signatures. But before the end arrives, there’s nothing to prevent them from being named in a lawsuit, and then having to defend their actions in court.

The Notary risk: Sue first, ask questions later

In a criminal case, investigators develop evidence first, and then file charges. Police investigators have legal tools, such as search warrants, which they use to gather evidence and build their case. They can then use that evidence as the basis to file criminal charges.

In a civil case, that process is inverted: Plaintiffs must file the lawsuit first and develop evidence second. Civil plaintiffs can’t get a search warrant like police can, so instead they just have to make their best guess as to who’s guilty. It’s only after plaintiffs file a complaint that they are able to proceed with subpoenas, questioning, depositions and so forth and find out what actually happened.

It’s not unusual for a Notary to be named in a lawsuit simply because plaintiffs are obligated to cast a wide net. In other words, the civil process is “Sue first, ask questions later.” And even with the best outcome, being sued is incredibly disruptive.

Notary Defense: How to protect yourself

Given the fact that plaintiffs tend to name as many parties as they can when filing suit, there may be situations in which there’s simply no way to avoid a legal tangle. However, a Notary can take steps to focus away from the Notary and onto the real swindlers. 

1. Keep a detailed journal.

The most important thing a Notary can do for protection is to keep a journal with meticulous detail. Although not every state requires Notaries to do this, a well-kept journal can be your savior if you wind up in court answering questions about a signing that took place months or even years earlier, and you need evidence to show you did your job correctly.

2. Know your state’s Notary laws.

In many states, the bar to becoming a Notary is very low, and people can become Notaries even if they know virtually nothing about their state’s Notary laws. Jumping on a Facebook group to ask a question isn't necessarily going to get you the accurate information you need. However, your state Notary-regulating agency should have a website that lays out the requirements for Notaries. Look for it.

3. Have Notary errors and omissions insurance

While most states don't require Notaries to have errors and omissions insurance, it’s still a good idea to get it. If you are sued, you will need to pay a lawyer to help you answer the suit. Simply saying, “I haven’t done anything wrong!” won’t be enough to get a lawsuit dismissed -- even if it's true. Under a Notary errors and omissions policy the insurer is contractually obligated to defend the Notary in a lawsuit up to the limits of the policy.


Former L.A. County Deputy District Attorney David Fleck has more than two decades of experience in fraud cases. However, he has stopped taking new clients to focus on developing technology that allows Notaries to spot high-quality fake IDs with a simple smartphone app, which also secures documents through blockchain. Learn more at Veritable Data Solutions.
 

Additional Resources:

NNA Notary Hotline

 

View All: Best Practices

8 Comments

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Norma A Maldonado

10 Mar 2021

I am a Certified Public Notary Signing and I am a Real Estate agent. My question is: Can I notarize the final documents of the transactions where I am the agent? And if not, can I notarize the Deed that comes in some transactions? I live in the state of California.

National Notary Association

11 Mar 2021

Hello. In California, “A notary public shall not take the acknowledgment or proof of instruments of writing executed by the notary public nor shall depositions or affidavits of the notary public be taken by the notary public” (GC 8224.1). Also, “A notary public who has a direct financial or beneficial interest in a transaction shall not perform any notarial act in connection with such transaction. For purposes of this section, a notary public has a direct financial or beneficial interest in a transaction if the notary public: “(a) With respect to a financial transaction, is named, individually, as a principal to the transaction. “(b) With respect to real property, is named, individually, as a grantor, grantee, mortgagor, mortgagee, trustor, trustee, beneficiary, vendor, vendee, lessor, or lessee, to the transaction” (GC 8224). However, California also has the following exceptions regarding beneficial interest: “A notary public has no direct financial or beneficial interest in a transaction where the notary public acts in the capacity of an agent, employee, insurer, attorney, escrow, or lender for a person having a direct financial or beneficial interest in the transaction” (GC 8224).

John Clark

29 Mar 2021

I wouldn't say that thieves, forgers, and swindlers are motivated by "greed." It's more like prudence, in a perverse way. For almost every notary if asked to collude in a crime would refuse, and probably report the attempt. Nor would the principal of such a scheme rely on a crooked notary's "honor" not to squeal or try blackmail later. Anyway, fraud and theft are CRIMINAL matters, although the question of a notary's culpability may be a civil case.

Patricia Berger

07 Mar 2022

As a former CA notary for 17 years, a journal was required by law. I am now in NH where journals are not required, and i would never think of conducting a signing without filling out a journal entry. Do i contact my Secretary of State's Office to attempt to change our law here...or would the NNA assist me with that?

National Notary Association

11 Mar 2022

Hello. We would recommend contacting your local state lawmaker and letting them know you support a Notary journal requirement.

Christy Hayes

08 Mar 2022

I take extra precautions with having a Credit Freeze on all three of my Credit Reports with each Credit Bureau and set up an account with Clark County Tax Assessors office which alerts me to any paperwork submitted concerning my real property. Liens, Deeds, any paperwork attempting to alter my ownership of my real property.

Matt Bakes

15 Oct 2022

A notary acted as a witness but I don't believe she was at my father's house when she signed a fraudulent revocation to a trust. Med records showed my father was hallucinating, confused, and so combative he needed supervision etc. I was kept out of this because my brother wanted to get the house. I am/was Trustee/Executor to my dad's trust and my brother and step.other kept me out of the whole horrible situation. Doesn't real property have to be taken out of a trust before it is revoked? And my fathers hand was forced to make an "x". Doesn't an "x" signature require 2 witnesses?

National Notary Association

17 Oct 2022

Hello. We're sorry, but you would need to speak to an attorney to answer any legal questions about the revocation of a trust or the other specific concerns in your situation.

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