What Would You Do: The case of the improper Signing Agent request

The Notary Hotline receives hundreds of calls daily from Notaries nationwide who find themselves in challenging situations. To boost your knowledge of Notary standards of practice, we’ve created a series of scenarios based on actual situations and ask a simple question: What would you do?

Imagine this real-life scenario: You get an assignment for a mortgage refinance package for a local couple. The property is located in another state — in this case Georgia — and documents must be signed by a witness in addition to the borrowers. Shortly before leaving for the signing, the borrowers call to cancel the appointment because they do not have a witness.

You check your reference material and verify that you cannot act as the witness for documents to be filed in Georgia if you also notarize those documents. Then you reach out to your contact at the company that gave you the assignment to let them know the situation. They respond via text that you can act as a witness and Notary, and instruct you to proceed with the signing.

There are several text exchanges, including one in which you send them a screenshot of the page of your reference material citing Georgia’s prohibition for Notaries at act as a witness and Notary in connection with the same document. The company insists you are mistaken and continues to instruct you to go ahead with the closing.

What would you do?

To participate in this week’s “What Would You Do?” scenario, share your answers in the comments section below. We may mention your response in next week’s Bulletin, when we offer the best possible answer(s) to this notarial challenge.

Michael Lewis is the Managing Editor for the National Notary Association.

Related Articles:

How To Spot Illegal Notary Requests

Signing Agent Tip: Sending Extra Notary Certificates

Additional Resources:

The Notary Public Code of Professional Responsibility

40 Comments

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Mary Beaton

28 Apr 2021

I would let the contracting office as well as the couple whose loan i am notarizing know that i will not go against the rules set for my state and would kindly agree with the couple to reschedule the appointment when they have a witness. If the contracting company insists upon continuing with the signing, then i would only agree to continue with the signing if the contracting agency can provide a witness who would be available to meet at the scheduled time of the signing or at another scheduled time if the couple is unable to find someone.

Gerry

30 Apr 2021

It's possible that the information in my reference material might be a Georgia law governing how Georgia notaries perform their duties, in which case, it would not apply to me, because the Georgia legislature lacks authority to tell notaries in other states how to do their duties. But if Georgia notaries are not allowed to be a document witness, and a Georgia official sees the same name as a witness and the notary, there may be problems, so I would not act as a document witness because the delay may be harmful to various parties in the transaction.

RJ

The specific law applies to Georgia Notaries, although it has happened where a FL Notary acted as a witness on a GA closing and the transaction was rejected. The Notary is never obligated to act as witness, although it can provide a convenience factor if all parties agree that it is feasible. If considering obliging the contracting company, keep all the correspondence in writing, as backup.

Carl Territo

03 May 2021

I would agree. Even if the state we are signing it allows a Notary to be a witness, the document is sitting in a state that does not. It is best to error on the side of caution and refuse to act as both a Notary and witness in this case.

Candice Angotti

I have had this happen twice recently. I'm in Michigan, along with the signers and the property was located in Florida. Each time I was told by a SS and a law firm, oh, you can be a notary and a witness on our documents. Each time I presented a copy of the Michigan law, and said the signers need to provide the witnesses and then I will be happy to do the signing. Michigan is on of a handful of states that this is not allowed! Once they saw the "statute/law" they were more than happy to oblige and both signings went off without a hitch. This is why I always want to 'see' the documents before I get to the table so we don't have any surprises that waste my time and possibly delay a closing. Know your state law and don't let someone from a signing service, title company or law firm try to tell you to go by their local laws in another state!

Eugenie Pence

I would advise borrower and dog if agencyI that Georgia law prohibits the notary from acting also as a witness and would ask the borrower if they might have a neighbor willing to attend the closing.

Patricia Thompson

Typically I would follow the rules in my state where the documents are being signed. In this case, however, I know that the documents will be filed in another state, Georgia, that does not does not accept documents signed by a notary who is also a witness. I would ask the assigning agency to reschedule the signing so that a witness is present at the signing, to prevent the documents being rejected.

Venus Brown

If someone knowingly instructed a notary to perform an illegal act then it could be a misdemeanor for them but if the notary knowingly followed then it could be worse: fines, felony, and loss of commission. I don’t like going toe to toe with companies because you can easily get blacklisted. I would acknowledge that the client desires to reschedule and if asked if I could return then I would professionally decline since I am not required to disclose my schedule. If I felt forced to disclose additional information then I back it up with a excerpt and citation or civil code before I politely ask for the assignment to be reassigned since I am uncomfortable with the request. OR I pay for witness attendance out of my own pocket and attached the necessary certificates. Always go with the law to CYA even if they are shady.

Liz Head

In my opinion, there are a couple of options; one being the answer from Mary Beaton relative to asking the contracting agency to provide a witness. Because it appears that there was quite a bit of conversation with the hiring company (which sounds a little like coerion), I would end the conversation by simply giving the signing appointment back to the hiring agency. I would also let them know that I am available to accommodate once the signer(s) secured a witness. Oftentimes, we as notaries, become problem solvers, in my opinion and my business model does not include making arrangements for witnesses to solve this problem. I've heard that some notaries take a witness with them. My concern here is that the notary is introducing and providing a "disinterested" party to the transaction. In my opinion, this violates the borrower(s)' privacy. Secondly, is that witness compensated for appearing as a witness and who bears the cost of any compensation if required? Sometimes "NO" is definitely a complete sentence when it appears that someone is insistent that we do something that is in violation of our notary commission.Thanks for allowing me to share.

Loren Z

Here in IN we recently had our own witness debacle, so I'd offer to bring my own witness. (I have someone I can call for that at last minute, but not everyone does. I pay them out of my fees.)

KATHERINE.RUNDALL@SIGHT-SOUND.COM

I cannot comment better or more fully than Mary Beaton already has. But, I wanted to comment in order to affirm her approach and chime in with "DITTO!"

Mary Williams

As I've already provided documentation that supports my inability to be a witness and notary, I would agree to be the notary and refuse to be the witness.

Edwin Kelly I

Simply refuse.

Sharieff Kendrick

Politely decline the signing. Tell them I am able to reschedule signing when signer is able to have witness available.

Vivian Smith

I would let the mortgage company know that I must, and will, abide by the legal restrictions of my state. I will also explain this to the couple, in case the mortgage company moves to try with another notary, emphasizing that if a notary acts as a witness, it may invalidate the document. They should consult with an attorney. But, I would be available once they get a witness.

Sheila D Winfrey Levy

I would advise them it is not law in their state and to reassign.

DORIS G LAUL

For all intents and purposes, a notary is an independent contractor and is, in most states, under the jurisdiction of the state they are a notary in. The company who gave you the assignment is not authorized to change the rules under which a notary is bound. At the risk of losing the assignment, I would remind the company of that, and, as stated by Ms. Beaton, would either arrange to reschedule the appointment or ask the company to provide the needed witness. I know this sounds a bit hard line, but my reputation and integrity as a notary will not be compromised.

Maxine Pride

I would advise the contracting company that I am following the rules stated and am not able to complete this assignment and please remove me.

Lola Lewis

I have been in that scenario several times. The signing companies and title do not care. I always let the borrower know they must have their own witnesses. If the witness cancels then they must reschedule for a time when they can get a witness.

Denice Porche-Bolden

I would ask the borrowers if they would like to reschedule when they have a witness available as I'm unable to act as a witness and notary by GA state regulations. After providing the contracting company a copy of the regulations I would complete the signing ONLY if a witness is available. If not it will need to be reassigned as I am not risking my commission.

Cami

I would ask this signing be reassigned. Simple! 😎

Jennifer Lynn Schmidt

Simply ask that the job is reassigned, apologize for the inconvenience and just let the requester know that with my understanding of the statutes of my state/directions of the Secretary of State for Notarial acts, that I am unable to perform this particular job.

David Towers

1. Attempt to obtain a witness. 2. If no witness, escalate to higher level with vendor. Bottom line: don’t break the law!

C Pratt

Given this scenario, the burning questions in my mind would be What is my reputation worth? and How would I ever justify ignoring the laws that govern this transaction? As a Notary Public, we are representative of the Secretaries of State and thus public officials. No amount of money should be sufficient to ignore the fact that a definite erosion of confidence in the Notarial profession would occur. The Signing Agent should therefore refuse to perform this assignment and advise the signing company that you are available in the future for assignments that don't require you to go against protocol. Likely you may never hear from them again. But it may well be that you are the one that stops them from placing a fellow Notary in the same position.

Eileen Roe

Send an email to the manager of the contracting office with a copy of the page of your reference material citing Georgia’s prohibition for Notaries to act as a witness and Notary. CC any other emails at the contracting office. They should all appreciate knowing their Notary Signing Agent is a stickler for the rules. If they don't, you are better off never working with them again, and setting yourself up for a future lawsuit.

Chris

After this exchange, I would explain to the borrowers that there has been an error in communication between the title company and the signing agent. I would happily proceed with the signing if the borrowers can produce a witness, but would agree to cancel the meeting if they could not. Regarding the title company, I would reference the law preventing me from notarizing a document without an independent witness present. Citing the Certified Signing Specialist Code of Conduct (I don't know how many notaries out there hold this in high regard, but I do), I would cite Section 5 (Illegal and Suspicious Activity) and the standards of practice. If I were shown an updated reference, or if an attorney could indeed confirm to me that I am mistaken regarding my interpretation of the law... OK. I would proceed with the signing. Otherwise (and this might result in a burned bridge), I would refuse. My notarial commission is much more valuable than any single signing. Further, I can be held legally liable if I am found to have been party to a signing that later turns out to be unlawful. My standards might seem harsh, but to risk my commission, indeed, my CAREER as a notary signing agent is out of the question.

Joyce Holmes

I would not jeopardize my notary commission or reputation and continue with this signing. I would kindly let the borrowers and whomever assigned me the signing that this is against the rules of our state. In their insistence that I move forward with the signing I would attempt however, try to provide a witness for the borrowers if they could not find one for an additional fee and if one could not be found I would let them know that I couldn't proceed with the signing and probably wouldn't accept another signing from this company as even though they were shown what the laws are in our state they wanted me to proceed.

LBW

I would not want the backlash if the document is signed with the notary acting as both notary AND witness then it gets to Georgia and is rejected. I can't imagine any of the other parties involved would want that either.

hawaiiangels20@gmail.com

Absolutely not! We have RULES for a reason, not worth getting in trouble or losing my Notary. Even if they beg me, no is no!!

Andy

I am in TN. I follow the laws in the state where I am a notary. In TN no witnesses are needed. I do not act as a witness as you cannot notarize your own signature. When in FL as a NSA I asked the signing company to provide extra money for witnesses if I provided the witnesses. No money then I did not provide the witness.

MARY J RAFFERTY

If I work in a business where notaries are performed, Can I not just get a colleague to act as a witness or does the witness need special qualifications?

Sharon Isaac

I'd volunteer to bring someone who could serve as a witness--for an additional fee--otherwise reschedule till when they could bring their own.

yllandra1@hotmail.com

I would err on the side of caution and not complete the signing without a witness. However, I would offer to assist in finding a suitable witness, so that the signing could take place.

Kim Miller

I would respectfully decline the signing as it is your responsibility to follow your notary laws and you have taken an oath promising to do so.

Doris Morgan

04 May 2021

Call NNA Hotline!

Michelle D. Jackson

I would prepare an email to both the couple and the company that I cannot serve in both capacities and ask if either parties can provide a witness. If they cannot, then I offer to provide a witness for a nominal fee. If the company continues to press me to act in both capacities, then I decline the assignment and keep it moving.

Albania Grisanty

05 May 2021

I would certainly not proceed with the signing. If there is a deadline to meet then unethically completing the signing with me acting as both notary and witness will be counterproductive. The state of Georgia will not complete their funding/filing because they have received an illegally signed file. The only real time options as a Notary in that situation would be to ask if the signers can reach a near by friend/neighbor the day of to act as a witness, if not, rescheduling is the most ethical option to approach the issue at hand. The documents are going to be filed in a state that does not require Notaries to also act as witnesses which means there is no point in meeting the "unethical deadline" if Georgia will kick the file back to the agency/ escrow to be rectified and not fund on time.

John Potts

07 May 2021

I would draw to the attention of the contracting company that, while my state allows a notary to be both notary and witness on the same document, this is prohibited in Georgia where it appears the documents will be filed. I would recommend the signing be rescheduled when witnesses can be present, but if the contracting company insists that they want me to proceed with the original schedule and act as a witness, I would do so knowing that it is legal in my state and that I have alerted the contracting company to the possible adverse consequences when the documents are filed in Georgia. By the way, I would ensure my communications with the contracting company are by text or email so that there is a written record of the exchange for obvious reasons.

LaVell D Ragsdale-Bower

08 May 2021

My first thought is the same as Sharon Issac. After contacting the signing company and informing the couple of the laws in my state that I follow...I am not able to notarize and witness. I would suggest a neighbor and if that's not possible I would suggest me bringing a witness for an additional fee. If they didn't agree to that...we would have to reschedule to allow the couple time to find a witness.

Mitch A

I would let the 'agency' know that I will bring a witness for '$x' and make it happen and I would NOT be a witness.

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