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edelske
New York
815 Posts |
 Posted - 10/03/2011 : 6:54:51 PM
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Having worked my entire adult life with computers, there are two maxims worth repeating. The first is GIGO - Garbage In - Garbage Out. The second is more of a personal favorite. "The wonderful thing about "standards" is that there are so many to choose from".
To me the same applies to Legal definitions, case precedents, judicial rulings, etc. With only slight exaggeration, considering the vastness of the body of "legal writings", the following might be true: It is possible to find a definition, precedent, or ruling that states:
Rain is wet. And there also exists in the same body of knowledge the statement that: Rain is dry.
Central to the practice of law, and making a "case" is selecting from the vast written law cloud - opinions that agree - and support the point of view. Of course opposing views are rarely cited.
I for one am not a reader of law books, nor do I follow case precedents or judicial rulings. I probably would not understand them.
What I rely upon is the "Notary Handbook" of the State of New York for guidance. It has all the "law" I feel I need to know, and has served me well for the past decade. I have a link to it on my web site.
There are 3 guiding principles in my day to day work. Obeying the NY Notary law, staying out of court; and doing what is morally right.
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
Edited by - edelske on 10/03/2011 7:01:12 PM |
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Renee
Michigan
549 Posts |
Posted - 10/02/2011 : 03:33:11 AM
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...and some courts DO agree with Linda, c'mon - be fair.
As it relates to loan documents, it's all a moot point anyway. These aren't documents being filed in court, and it's the lender's discretion as to how their own proprietary documents are formatted.
Regardless of Black's definition, lenders do often include documents formatted & titled as "Affidavits" that they do not request, require or hint at needing notarized. So, in discussing this w/in the context of loan signings - a rose isn't always a rose, and that poses US no issue. |
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Notary007
60 Posts |
Posted - 10/01/2011 : 1:46:25 PM
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I did not make any statement that the notary should prescribe what type of notarial certificate to attach. I merely stated facts, not opinion. Notaries should not choose or select notarial certificates unless they are licensed to practice law.
Black's Law Dictionary and some courts do not agree with Linda's opinion. As notaries, we should not offer a legal opinion.
Here's the definition from the NNA Notary Signing Agent Certification Course manual, Affidavit: "Written statement signed before a Notary (or other authorized official) by a person who swears or affirms the statement is true."
Black's defines a Jurat: "The clause written at the foot of an affidavit, stating when, where and before whom such affidavit was sworn."
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Renee
Michigan
549 Posts |
Posted - 10/01/2011 : 1:26:33 PM
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Going from my inside experience, I know that it can be extremely difficult for the lender to revise a document in their loan pkg, particularly the title of the document. It's a techie headache that involves a lot of inter-mingled checks and balances. Consequently, you might see "Affidavit of Some Such Nonsense", it might contain all the same verbiage including the "under oath" or "sworn to" but have absolutely nothing to indicate it should be notarized.
It seems to be that notarizations are being trimmed away, but the actual documents remain.
If it doesn't indicate some hint towards notarization I do not notarize, and I have never had that come back to bite me. |
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CopperheadVA
Virginia
420 Posts |
Posted - 10/01/2011 : 12:12:01 PM
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<< If an Affidavit does not have the proper notarial certificate attached, and no oath or affirmation was made, some courts have thrown out the document as being defective and not binding. >>
But the notary cannot arbitrarily decide to add a notarial certificate to a document. If the document preparer wants a notarial certificate on a document, they must include it on the pre-printed document or indicate with written instructions that they want signatures notarized on that particular document. Without either of those indications, I don't believe it's proper for the notary to take it upon themselves to add a notarial certificate onto a document.
If the document is later thrown out of court because it's not notarized, that falls on the document preparer's shoulders, doesn't it? |
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LindaH
Florida
1754 Posts |
Posted - 10/01/2011 : 11:36:55 AM
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quote:
Originally posted by Notary007
Here's how Black's Law Dictionary defines Affidavit: "A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath."
If an Affidavit does not have the proper notarial certificate attached, and no oath or affirmation was made, some courts have thrown out the document as being defective and not binding.
And for some, notarization may not be required - signers attesting to the truth, certifying to the truth or affirming the truth of the statements do so by virtue of their signature on the document.
Linda
http://www.notary.net/websites/LindaHubbell
http://www.columbiacountynotary.webs.com |
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Notary007
60 Posts |
Posted - 10/01/2011 : 11:02:20 AM
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Here's how Black's Law Dictionary defines Affidavit: "A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath."
If an Affidavit does not have the proper notarial certificate attached, and no oath or affirmation was made, some courts have thrown out the document as being defective and not binding. |
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Renee
Michigan
549 Posts |
Posted - 10/01/2011 : 03:09:15 AM
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I agree, it was a very weird request from the Lender. If I understand correctly, Tonya - you sent them Jurats after-the-fact, without going back to the borrowers? That would be an illegal notarial act, if that's the case.
Within loan documents, you'll see plenty of "Affidavits" that are prepared with Acknowledgements, and even those lacking any notarial cert at all. Ours is not to wonder why ... As Copperhead, I complete each doc as it is prepared (jurat or ack or nothing) regardless of "Affidavit" in its title or implication - have also never had any lender want anything different. |
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jbelmont
California
3106 Posts |
Posted - 09/30/2011 : 10:59:48 PM
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Notaries might argue with me on this one. However, what I used to do was to offer a choice to the client what type of form they wanted. I explained that if they need an Oath sworn, that the Jurat form contained Oath wording. I EDUCATED them, but the choice was still theirs.
However, I have heard that there is such thing as an Acknowledgment with an Oath in some states. I have only done this once or twice. The wording of the Oath was mixed in with standard Acknowledgment wording. This is not a normal type of notarization, but sometimes it gets done. If YOU are doing the educating, I would keep it simple.
If you want to be strange, you can notarize the same signature TWICE. Once as an Acknolwedgment and once as a Jurat and you can give them an accompanying Oath. Make sure your journal is signed for each notary act on that particular signature.
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CopperheadVA
Virginia
420 Posts |
Posted - 09/30/2011 : 5:33:11 PM
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<< I'm just wondering if I should just include jurats as a matter of practice? >>
No, I would not do that. I have never been asked to provide a different certificate after sending the docs back. That's weird. I think it was an isolated incident in your case. |
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tdblake
Washington
10 Posts |
Posted - 09/30/2011 : 2:13:01 PM
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[quote]Originally posted by CopperheadVA
The notary does not get to choose the notary certificate - the document preparer does. Whichever notary certificate is pre-printed on the document, that's presumably what the document preparer wants and that's what they get.
CopperheadVA
The forms I received were apparently self contained. The necessary wording and space for the seal and other pertinent information was on the document itself. Then after it was done, the lender requested jurats for two of the forms. I gave them jurats specifying which documents they went with, so that wasn't an issue. I'm just wondering if I should just include jurats as a matter of practice?
Tonya |
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CopperheadVA
Virginia
420 Posts |
Posted - 09/30/2011 : 2:05:48 PM
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The notary does not get to choose the notary certificate - the document preparer does. Whichever notary certificate is pre-printed on the document, that's presumably what the document preparer wants and that's what they get.
CopperheadVA
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tdblake
Washington
10 Posts |
Posted - 09/30/2011 : 11:40:47 AM
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I am trying to get this clear and keep it simple.
Is this correct:
If the notary certificate includes the word "sworn", it should get a jurat attached.
Anything that says it's an affidavit also would get a jurat.
Thank you for any help with this! :)
Tonya |
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Very basic question
