2f: Notorial Acts

2f: Notorial Acts

Let’s discuss another important responsibility for Notary Signing Agents, Notarial Acts.  These are acknowledgments, affirmations, jurats, and copy certifications.  Notarial acts can be witnessing signatures and even administering oaths.

The Seal/Stamp

On most documents there is a specific area where the State, County, Signers names, Date of signing, Notary name and signature line are included.  This is usually found at the bottom of the documents below the signatures of the documents signers.  There is also, usually, an area near the notary’s name sufficiently large enough to contain your notary seal or stamp.

When you place your seal or stamp in this area it must be clear, dark enough to photocopy, be complete, and must contain the State where commissioned, the name of the Notary Public and the word “seal” or picture of the state seal).

Don’t forget, if you fail to place your stamp on the document, the documents has not officially been notarized and will not be usable.   

There are several items that must be included on the document in order to be notarized. 

  • The name of the signer must be typed, printed or stamped below the signature line.  
  • The signature must match the name of the signer on the documents
  • The printed names of  any witness(s) must be printed under their signature line
  • And finally, the notary’s printed name must appear below their signature line as well. There are many times when your name will not be typed under your signature line so you will need to print your name under the line when possible.

Occasionally you will have a document which requires an acknowledgement but there is no room on the form for your stamp.  In this case you will need to attach a separate acknowledgement to the document.  Be sure you connect that acknowledgment with the proper verbiage to the document it is being attached to.

TO SEAL OR NOT TO SEAL

If you have any doubts about whether or not to seal or stamp a document remember this way:

A document that is completed and/or signed by you as the notary,  but not signed by the document signer will NOT be stamped or sealed.

A document that is signed by the document signer and you as the notary does require your seal or stamp.

A document signed by the document signer but not by you as the notary will not be stamped or sealed. 

WHAT IF?
What if your seal does not properly affix when notarizing a document?  Remember to stamp it again, and line through the improper seal.  Alternately have a new document signed if possible.  If neither is possible, attach a separate Acknowledgement.  Always follow your states guidelines regarding separate acknowledgments.  Your signature on an acknowledgment or jurat constitutes your testimony that the information contained therein is accurate.  If you need to make changes on the acknowledgment such as the state or county or the addition or subtraction of a name you do not need to initial the changes.  Your signature on the acknowledgement or jurat is sufficient.  

Contents of Acknowledgement and Jurats 

More states are requiring additional information be added to a separate acknowledgement which is attached to a document.  We will be going through this later in more detail Section Three, but most will need at a minimum the: 

  • State and County where the document is executed
  • Date of execution.
  • Names of the signing parties.
  • Printed name of the Notary.
  • Signature of the Notary under signature line.
  • Notary Seal or Stamp (no acknowledgement is complete without the stamp or seal).
  • Expiration date of Notary Public’s commission.

 Acknowledgement

The true definition of an Acknowledgment is a formal declaration before a notary public that the instrument presented is the free and voluntary act of the party executing it and the signatures on the documents are genuine.  When an acknowledgement is done a Certificate of Acknowledgement is filled out.  In the area where they list the gender of the signer and the quantity of signers (such as he she they), you should cross out what does not apply and circle the correct application such as gender.

Jurat

A Jurat is defined as an attached written statement of the notary public that the Oath or Affirmation was taken before the notary public.  The contents are the same as those required on the Acknowledgment as listed above. Again, you will cross out the incorrect gender etc. and circle the correct one.

Oaths and Affirmations 

As Notaries we are called upon to notarize many different types of documents, some of which may require us to take an Oath or Affirmation from the signer.  What form we use to acknowledge that we have witnessed the signing is directly dictated by this process.

Oaths vs. Affirmations 

An Oath is written this way: 

Do you solemnly swear that any statements made when signing this document are TRUE to the best of your knowledge so help me God?

Whereas an affirmation includes this language: 

Do you affirm the accuracy of the statements made by you in the following document to be signed? 

Taking the Oath

The oath is a promise that one is making a true and correct statement to the best of their knowledge. It consists of three components:  

  • Ask the signer to attest to the truth and accuracy of the information given.
  • Ask the signer to attest to the truthfulness of who they are, in other words correct identity.  
  • Ask the signer to attest that they did not make any false statements, they told the truth.    

Affirmation

An Affirmation An oral or written declaration made by a person who has an objection to taking Oaths, certifying under the penalty of perjury the declarations are true.  

Affirmations must contain the following:

  • They must contain the State and County where the document is executed.
  • The date of execution
  • The names of the signing party(s).  
  • It must also contain the printed name and signature of the notary public
  • The seal (stamp) of the notary public 
  • The expiration date of the notary public’s commission. 

Name and Signature Affidavits 

Just the word “Affidavit” means that this document is a sworn statement of accuracy.  When you see an Affidavit in your documents you know that you will be taking either an Oath or an Affirmation from that individual. You will find that some loan packages contain Affidavits which include an acknowledgment only and a Jurat.  This is strange because just the word Affidavit on the document leads to the understanding that there should be an Oath or Affirmation taken  But this does happen.  

The name and signature affidavits will contain information relating to the name of the borrower(s).  Some will cover the use of AKA’s.  AKA simply means that the person signing is Also Known As, a variation of their name.  This could reflect a change in name due to marriage, or the use of a middle initial or even nicknames such as Robert also known as Bobby.  Any time a person is known by more than one name, and both names appear on the documents, the variances should be listed under the “also known as” sections of the Name Affidavit.  Also, difference between the name on the documents and name on the Identification must also be noted.  .

Illegible signatures 

Many times, the signature on the valid identification is unreadable. The signer indicates that it is their legal signature and matches the name as it appears on the documents.  Most of the time, you can accept this illegible signature on the documents but things may change one day.  Because we have so many people here from other countries who use different names, lenders are beginning to demand legible signatures to ensure the signers are not signing with another name, perhaps one which they use in their country of origin.

Some signing service or lenders are requiring borrowers to state that their signature is their legal signature.  However they are also asking that these signatures be legible.  The legal signatures of many of us are not legible but it is our legal signature. To ask people to change the way they sign their name so that it is legible is, in my opinion, asking people to forge their own name.  If you are required to do this you might call the vendor and suggest to them that you are asking the borrower to forge their signature and ask if you can be allowed to accept their legal signature even though it may be illegible.

Do’s and Don’ts

Before you take it upon yourself to make those changes to the Name or Signature Affidavit, you must read your instructions or call the company that hired you to see how they want to handle the situation. You must not take it upon yourself to make that decision unless you are unable to get in touch with someone and the circumstance is extreme.

These affidavits also have the borrower swearing or affirming to the fact that their signature on the document and it represents their true and legal signature.  As noted, many times the signature on the valid identification is an unreadable signature but the signers indicate to us that it is their legal signature and includes every part of their name as it appears on the documents.  It is always a good idea to ask them if their signature on their identification is the same as printed on the documents such as:  John D. Smith. As of now, in most instances you are able to allow them to use these signatures on the documents even if they are unreadable.  

Remember, the best practice is to always read your instructions. If it is not specified that you have them sign with a legible signature, you can have them sign the way it is on their ID.

Corrections to Notarization

Occasionally corrections to Notarizations are required.  When this is the case, verify the correction, then strike out the error with one line and initial.

Always make a note when correcting a document, and once again follow the instructions!  

Backdating and Anti-dating

Never backdate a notarization.  It is against the law and could cause you to lose your commission.  You will be asked at some point in your career to backdate documents.  You will be given great reasons why the borrower needs you to back date, sad stories and someone may beg you or even threaten you (although we hope not)!  It doesn’t matter, you are never allowed to backdate a document. When someone asks you to back date a document tell them it is against the law and it is your license on the line, not theirs.

There is one exception to this ironclad rule.  If you witnessed a set of loan documents and in the next day or two the lender tells you that something was signed incorrectly on a document and they need for you to obtain the borrowers signature again on the same document, you can then backdate because you were a witness to their signature on the same document on the previous date.  If this ever happens be sure you protect yourself by having them either send you the original document or fax a copy to you.  There have been times when notaries have been asked to do this, and it turned out the document was never sent in the first place.

This rule is simple.  Always date documents the same day you are witnessing the signatures.

Unintentional Errors

Notaries, as all humans do, make occasional mistakes.  Our best advice if you do make a mistake is to honestly admit your mistake and graciously fix it.  For many companies it is not the mistake you make but the way you manage the correction that is most important to them.  If you’ve made a mistake, own up to it.  Denial and grumbling only make matters worse and will damage your reputation.  We suggest you always humbly apologize for the mistake.  Make an expeditious attempt to take care of correcting the error as soon as you possibly can.  In most cases, our client will appreciate how you handled the situation more than they will have concern about your error.

The following are mistakes that are easily corrected:

  • Missing Signature on a document
  • Missing Initials on a document
  • Missing Seal on an acknowledgement
  • Missing Notary Signature 
  • Incorrect dates calculated on a Notice of Right to Cancel 

Serious Mistakes 

There are other mistakes that are far more serious and can lead to significant costs and repercussions, even costing the Borrower their loan. Some of these can include things like Incorrect notarization on the documents, Improper signatures on the documents.


One of the worst mistakes you can make is not returning the documents in a timely manner.  Documents must be returned either the same day as the signing or if too late to send, they must go out the next day.  

Placing documents into the wrong shipping envelope can be very serious. If you have more than one signing, this is a very easy mistake to make.  Always write the last name of the borrower on the shipping labels when you either receive them or print them.  Then compare the label with the documents before putting into the envelope. 

The consequences for making mistakes can be huge. Here are a few examples.  Improper Notarization of a mortgage can cause a Lien to be “unperfected”.  Failure to properly notarize a Deed can cause loss to the Owner as well as the lender.  Failure to properly sign the Note, Mortgage or Deed of Trust can cause a whole transaction to become invalid, and failure to properly administer a loan signing can cause a “foreclosure” to become invalid.  No one wants these kinds of consequences on their conscience or liabilities for their business!

Remember, to avoid making these kinds of mistakes you must always, without exception, double and triple check your documents before returning to lender