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Renee
Michigan
549 Posts |
 Posted - 12/20/2009 : 04:35:28 AM
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Wow, Ken - recording a person's RACE on a Deed, unbelievable. Sounds to me like someone didn't quite get the gist of "race notice", had a data-field there to enter something (and most likely NY requires MARITAL status?!), and in ignorance went with race?!
I have to think it was an act of ignorance (not necessarily ill-intended) AND that nobody else NOTICED until you did, and I would've investigated prior to letting it record that way - but, perhaps it was a deal where nobody could be called. When you first mentioned this, you said it was the seller - then 2nd time you said it was the buyer ...had it been the buyer, I honestly would've struck it from the body of the Deed and dealt with whatever consequences. (Go ahead and UPL me, I would've dealt with it). If it's the BUYER, then there is no concern for what the prior deed had (like there is if it were the seller) - and there could've been some truly embarressed parties and even some potential liabilities waiting 'round the corner. |
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edelske
New York
815 Posts |
Posted - 12/19/2009 : 8:31:19 PM
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Vince,
In both, (usual boilerplate copy from "as on title") but I only am authorized to change notary block -
Probably should have changed both, with the borrower initialing the change in the "body". Of course I initialed the strike in the notary section. Thought about suggesting borrower mod in body, but did not want to suggest a change there......
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
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vince
Kansas
324 Posts |
Posted - 12/19/2009 : 7:49:34 PM
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quote:
Originally posted by edelske
I forgot to mention, just two years ago:
I had a deed that referred to the seller as "Mr Tom Jones, a Black man".
That was an EYE OPENER for sure! Must have been recorded a very long time ago! Naturally I "struck" the offensive part, and proceeded to notarize the name. I did get a curious look from the seller, followed by a smile. I would have thought this type of stuff was abolished long ago, but in our business - surprises happen daily.
Just curious Ken, was "the descriptive phrase" that you struck in the main body of the deed, and/or in the notary block (only)? I've not personally struck anything anything that was outside of the notary block without prior direction by the company that drafted the document. |
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edelske
New York
815 Posts |
Posted - 12/19/2009 : 6:30:42 PM
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I forgot to mention, just two years ago:
I had a deed that referred to the seller as "Mr Tom Jones, a Black man".
That was an EYE OPENER for sure! Must have been recorded a very long time ago! Naturally I "struck" the offensive part, and proceeded to notarize the name. I did get a curious look from the seller, followed by a smile. I would have thought this type of stuff was abolished long ago, but in our business - surprises happen daily.
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
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Lisa T.
California
391 Posts |
Posted - 12/19/2009 : 5:52:31 PM
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California notary law goes along with what Ken wrote. We cannot put anything other than the signer's name in the notary block. Makes life much easier  |
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edelske
New York
815 Posts |
Posted - 02/01/2009 : 02:47:03 AM
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PW,
OK, with your example, I see your point. The magic word is "AS" !! That little word says YOU are not saying the attribute - THEY signed using the attribute. The example makes that clear to me - thank you!
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
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PWinFL
Florida
469 Posts |
Posted - 01/31/2009 : 8:22:54 PM
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quote:
Originally posted by edelske
If I signed an aff with "Kenneth A Edelstein, worlds best notary" would you permit the notary section to state that "Kenneth A Edelstein, worlds best notary" appeared before you?
No, because "worlds best notary" is not a capacity. I would certainly sign an acknowledgment that had "Kenneth A. Edelstein as president of the KAE Notary Services company". And I would not ask to see your Articles of Incorporation to ascertain whether or not you can present yourself as the president.
From the Florida Statutes, chapter 117.05(13)(c)
(c) For an acknowledgment in a representative capacity:
STATE OF FLORIDA
COUNTY OF __________
The foregoing instrument was acknowledged before me this _____ day of __________, (year) , by (name of person) as (type of authority, . . . e.g. officer, trustee, attorney in fact) for (name of party on behalf of whom instrument was executed) .
(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known __________ OR
Produced Identification _________________________
Type of Identification Produced_______________________________________________
Again, different states have different rules. We each must conform to the laws and procedures of our own state.
Never drive any faster than your guardian angel can fly.
I am not an attorney licensed to practice law in the State of Florida,
and I may not give legal advice or accept fees for legal advice.
Visit us online at http://www.PAWnotary.com |
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edelske
New York
815 Posts |
Posted - 01/31/2009 : 7:57:41 PM
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PW,
There is a MAJOR difference between the signer stating their capacity when THEY sign and YOU stating their capacity in the "appeared before me" part of the acknowledgment. I would have no problem with Mr. Smith signing as "Tom Smith, worlds best animal trainer", but in the notary section it's "Tom Smith appeared before me". You say "It is up to the recipient of the document to determine the validity of the contents and whether or not they will accept the representation by the signer." and I agree. My point is that the "representation by the signer" is done BY THE SIGNER and not in the notary section (Before me appeared .............". If the "worlds best animal trainer" is in the notary section then the representation is by the NOTARY - If I signed an aff with "Kenneth A Edelstein, worlds best notary" would you permit the notary section to state that "Kenneth A Edelstein, worlds best notary" appeared before you?
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
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PWinFL
Florida
469 Posts |
Posted - 01/31/2009 : 7:43:36 PM
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Under Florida law, a representative capacity is exactly that; what the signer represents himself as. A notary is not authorized to question the validity of that capacity and is directed to take it at face value, i.e. on the word of the signer that they hold that capacity. Whether or not the signer of the document is authorized to maintain that capacity is not up to the notary to decide. For example, in Florida, a notary is not required to see or question the validity of a POA when someone states they have the authority to sign as the principal's attorney in fact. (See footnote below.) In CA, for example, a notary is prohibited from including a representative capacity in their notary certificates. Different states have different statutes and rules of practice.
It is immaterial whether or not you or I or anyone else disagrees with the law, it is simply a matter of law and that's way things are done here. It is up to the recipient of the document to determine the validity of the contents and whether or not they will accept the representation by the signer.
It must also be noted that only representative capacities are included. Status, such a "husband and wife", "married", "single", etc., are not considered a representative capacity. Therefore, our notary certificates should not say, "John Doe and Mary Doe, husband and wife", but certainly can say, "John Doe, trustee of the John Doe and Mary Doe trust" when John Doe is signing as a representative of that trust.
Footnote
The following is an excerpt from the Florida Governor's Reference Manual for Notaries, 2001, pg40:
quote:
It is not the notary‘s responsibility to ensure that the signer has power of attorney. The person states he has that authority and indicates this fact when he signs - just accept his word.
Note: If you are notarizing in connection with your employment, you may need to require a copy of the POA for your employer‘s files.
Note the capacity of the signer in the notarial certificate. Use a notarial certificate in substantially the same form as the one on page 30 for an acknowledgment in a representative capacity.
Never drive any faster than your guardian angel can fly.
I am not an attorney licensed to practice law in the State of Florida,
and I may not give legal advice or accept fees for legal advice.
Visit us online at http://www.PAWnotary.com |
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edelske
New York
815 Posts |
Posted - 01/31/2009 : 6:26:53 PM
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http://dos.state.ny.us/lcns/lawbooks/notary.html (NY Notary Law)
“§303. Requisites of acknowledgments. An acknowledgment must not be taken by any officer unless he knows or has satisfactory evidence, that the person making it is the person described in and who executed such instrument.”
The thing to be known is the identity of the person making the acknowledgment with the person described in the instrument and the person who executed the same. This knowledge must be possessed by the notary (Gross v. Rowley, 147 App. Div. 529), and a notary must not take an acknowledgment unless the notary knows or has proof that the person making it is the person described in and who executed the instrument (People v. Kempner, 49 App. Div. 121).
Based on the above - and NEVER having proof as to the pre-printed attributes - I for one just notarize the name.
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
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edelske
New York
815 Posts |
Posted - 01/31/2009 : 6:16:43 PM
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PW & LH,
When you notarize and include an "attribute" in addition to the name in the notary section - on what do you base your statement? With the assumption that neither of you is an attorney - how are you qualified to determine that what you are stating "before me appeared......." is true? Do you include the attribute based on the verbal statement of the person signing or do you "research" to validate the claim?
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
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LindaH
Florida
1754 Posts |
Posted - 01/31/2009 : 6:07:36 PM
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I agree with you about compliance, Ken, but in addition to what Paul said there are instances where that doesn't play out - such as corporate acknowledgments, where John Doe as President of XYZ Corporation, is signing with full authority for that corp -
Just a quick thought - :)
Linda
www.notarydepot.com/notary/lindah
http://www.notary.net/websites/LindaHubbell
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PWinFL
Florida
469 Posts |
Posted - 01/31/2009 : 5:57:02 PM
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I agree with Ken, that a notary needs to ensure that their certificate is accurate and state compliant.
But, in some jurisdictions, such as Florida, a representative capacity (attorney in fact, legal guardian, trustee, etc.) is not only proper, it may be required within the notarial block to state such capacity.
Please, when posting specifics about your own notary law, don't assume that the law is the same everywhere. It would help us all to understand where you are coming from if the statements are preceded with something like, "In the State of FL...", or "according to the Florida Notary Guide ..."
Never drive any faster than your guardian angel can fly.
I am not an attorney licensed to practice law in the State of Florida,
and I may not give legal advice or accept fees for legal advice.
Visit us online at http://www.PAWnotary.com |
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edelske
New York
815 Posts |
Posted - 01/31/2009 : 5:47:31 PM
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Lately I have run into a bunch of "improper" pre-printed notary sections. They try to "put words in my mouth" and add "facts" to the "Before me appeared......." section. An example is "....appeared Joe Smith, legal guardian of Tom Jones...." another example is "...Laura Jones, an unmarried woman...." another is "....Fred Thomas, Trustee to the Thomas Family Trust..." the list goes on and on.
IN EVERY CASE - I strike with a single line and initial the end of the line, deleting all verbiage other than the name that matches the ID. It is an attempt to have the NOTARY add a pseudo "legal" status to the signature of the person signing.
FIRST - there is NO WAY for me to know if the statement is true. Even if they show me a "guardianship paper" - it could have been vacated by a court order yesterday. "an unmarried" or "a married" - how do I know? There could have been a marriage or divorce yesterday, etc.
SECOND, our role IMHO as a notary is to notarize a PERSON - not verify an attribute of that person. The New York County Clerk's office - that holds my license - has told me "You just notarize the NAME that exactly matches the photo ID - nothing more". And that is exactly what I do. The affiant can state in the affidavit their status - but in the notary section, I only notarize their name. Often this occurs when the way they are signing (the preprinting under the signature line)is computer copied into the notary section. I understand this - but it does not change what I do. I have used my stamp tens of thousands of times over the past 9 years - and never once have been invited to a courtroom.
THIRD - The last thing I want is for a stern judge to ask me why I stated that "before me appeared Mr. Conman trustee for the Hugotook Estate"! Laws and rules certainly vary with jurisdictions - but here in New York - we notarize just the name.
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
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READ B 4 U Sign the preprinted notary section
