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Notary Bulletin

What Would You Do Answer: 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?

Last week the Notary Bulletin posed the real-life conundrum of the Notary Signing Agent who was asked to serve both as a witness and Notary for a mortgage refinance package that was to be filed in a state (Georgia) that does not allow Notaries to act in both roles.

When the NSA informed the mortgage company of this, he was told that he could notarize the documents and serve as the witness to the transaction. The company insisted that he proceed with the signing.

We asked the Notary community to share how they would handle this situation.

What You Said

The opinions you expressed were overwhelmingly similar: You would not act as both Notary and witness, recognizing the risks if you did.

“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,” said NSA Patricia Thompson.

“I have had this happen twice recently,” Michigan Notary Candice Angotti recalled. “Each time I was told, ‘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. Once they saw the statute, they were more than happy to oblige, and both signings went off without a hitch.”

“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,” said Carl Territo. “It is best to err on the side of caution and refuse to act as both a Notary and witness.”

“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,” noted Venus Brown.

“Here in Indiana we recently had our own witness debacle, so I'd offer to bring my own witness,” said Loren Z.

NSA David Towers said he would attempt to obtain a witness. If no witness were available, he would escalate the situation to a higher level with vendor. “Bottom line,” he said, “don’t break the law.”

Standards of Practice

The real-life episode involved an experienced Massachusetts NSA, a Massachusetts couple, a Nevada-based lender and a property in Georgia. Georgia law is clear that an individual cannot act as the Notary and witness to a document signing. When a Notary acts as a witness, they are a party to the document.

The NSA said he double-checked his reference material to verify his understanding and sent a screenshot of the relevant information to the lender. But his contact insisted that he act as both Notary and witness and complete the refi signing.

The NSA refused, which was the correct course of action. The NSA said he has received no more assignments from this client.

Had the NSA followed the lender’s instructions, the refi documents may have been rejected by the recorder’s office in Georgia, which could have jeopardized the loan and caused problems for the borrowers and lender. They could have filed claims against the Notary for any losses. In addition, the Notary still would have lost the lender as a client.

Restrictions on Notaries serving as a witness vary from state to state, so Signing Agents should make sure they have available, up-to-date resources to check whenever they receive a request to act as a witness during a signing assignment.

But even if state law may permit a Notary to serve as both a Notary and witness to the same document doesn’t mean it is wise to do so. The commentary to The Notary Public Code of Professional Responsibility of 2020 appropriately warns, “The subject of conflicts of interest is not science, but rather is a continuum of gradations of interests and influences. The line between actual and apparent conflicts is unclear. This Code directs Notaries always to take the high road of caution, prudence, and integrity. Notaries, like doctors, should always strive to do no harm to principals and their documents — such as may result if even an appearance of partiality is raised” (page 19).

This brings up the broader issue of dealing with improper requests from signing services, title companies or lenders. While few clients intentionally want Notaries to do something improper or violate that law, NSAs are occasionally asked to do things they should not.

Every Notary has to operate according to what they believe they are supposed to be doing. They cannot blindly follow instructions.

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



 

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