Amanda Farrell - 2 years ago
10 Ways a Notary Can Get into Trouble
Becoming a notary is a great way to make some extra money on the side. Those with an entrepreneurial spirit and strong work ethic can even turn it into a lucrative business, but that doesn’t mean there aren’t risks involved.
Careless notaries could lose their commission or their source of income at best. At worst, notaries can be sued for any missteps that led to financial loss, fined by their commissioning authority for misconduct, or even face jail time if their conduct leads to fraud or other criminal activity. To avoid getting into trouble, here are some bad practices to avoid.
1. Notarizing documents when a signer isn’t present
Conducting a notarial ceremony on behalf of a signer who isn’t present physically or via video/audio conferencing is a significant form of notary misconduct. Although notaries are warned against doing this, it still happens when clients or employers apply pressure or use common social engineering tactics like bogus phone calls from the supposed signer.
One couple in Ohio committed several cases of deed fraud by convincing notaries to sign and notarize fraudulent deeds, which they subsequently recorded in the public record. Once official ownership was transferred, they planned to sell the home out from under the legitimate owners.
One notary interviewed by a local news station admitted she violated the “golden rule” of notaries. Eventually, she was charged with four counts of felony tampering with records. In total, local notaries executed documents transferring property that could have netted the criminals more than $600,000 if the scam wasn’t stopped.
The potential for fraud grows when the signer isn’t present, and ethical notaries should be prepared to turn down customers asking you to execute documents without all signers present.
2. Not properly identifying the signer
Once the signer is present, the next step is to confirm his or her identity. Most state statutes mention that this must be done by either personal knowledge or satisfactory evidence that the person is the individual described in the instrument.
What does it mean to know the signer personally?
Some states don’t allow a notary to use “personally known” to verify the signer’s identity. Others have limitations on using this method for remote or digital closings. While this may be the easiest way to verify a signer’s identity because it doesn’t require any documents or witnesses, a notary should only use this option if they have known the person for an extended period.
Notaries shouldn’t rely on recent introductions or mere acquaintances whose full names you don’t know or other personal information like where they live or work.
What type of IDs can a notary accept to verify identity?
Using a government-issued identification to verify a signer’s identity is one of the most reliable methods. Each state has specific rules regarding which types of identification a notary may use, but they typically include:
- Driver’s licenses issued by any state
- Passports (both foreign and domestic)
- Military IDs
- Permenant Resident IDs
3. Incomplete certificates and forgetting to administer oaths or affirmations
A notarial certificate must be completed before a notary applies their signature and stamp. Neglecting to do this is considered a major form of notary misconduct and could result in losing your commission or fines. There are also consequences for not administering an oath or affirmation during the notarization of a jurat.
The Arizona commissioning authority may suspend or revoke a notary’s commission if they don’t complete the jurat or acknowledgment “at the time the notary’s signature and seal are affixed to the document.”
In California, if a notary forgets to complete an acknowledgment or administer an oath or affirmation correctly, he or she may be fined up to $750 for each offense.
Falsifying any part of the notarial certificate could lead to criminal charges of fraud or forgery and potential jail time, as well as hefty financial penalties.
Your Errors and Omissions Insurance Policy (E&O) will cover claims stemming from innocent mistakes, but it will not protect a notary from intentional acts of fraud.
A common error includes forgetting to add the venue. The venue is the county where the notarization takes place based on the notary’s location.
To avoid making a novice mistake that could lead to losing your commission or fines:
- Review the nine essential elements of the notarial certificate.
- Learn what verbal ceremonies must be administered with each notarial act before an appointment until you can identify and complete them correctly.
- Affix your seal only after the notarial certificate and ceremony are complete.
4. Forgetting to record notarizations
Not all states require a notary to keep a record of all their notarial acts, but some do. Notaries are encouraged to keep a record as a best practice to protect against lawsuits or accusations of misconduct.
States that require a notary to keep a journal include:
- District of Columbia
Neglecting this step in a state that requires it can get you into hot water, especially if additional requirements, like a thumbprint, must be part of the journal for certain documents to hinder fraud.
For example, in California, a thumbprint is required when notarizing any document affecting real property as well as power of attorney documents.
There are several critical points to document like the date of notarization, the date of the document, type of document, and others. Be sure to follow your state’s guidelines and create a journal-keeping technique to optimize your process.
Notary journals that comply with state regulations are available to purchase online and cost anywhere from $10 – $50.
Regardless of your commissioning state’s rules on journals, be sure to keep a detailed record of all your notarial acts.
5. Failure to secure your notary tools
In addition to keeping a record of your notarial acts, you’ll want to secure the journal containing them as well as your official notary seal. Under no circumstances should you allow someone else to possess your seal or journal — unless the journal is legally confiscated by an officer of the law for evidence or for auditing purposes.
Preventing loss or theft of notary seals and journals
If you’re out on an assignment as a mobile notary, be sure to keep the seal and journal on you at all times. Don’t leave them in your car or unattended. When your notary tools are in use, be sure to store them safely in a locked room, filing cabinet, or lockbox.
Reporting and replacing lost or stolen notary tools
If a journal or seal is ever lost or stolen, it should be reported immediately to your regulating agency. Delaying a written notice in some states could result in a fine, and willfully neglecting to report a lost or stolen notary journal or seal could result in your commission being suspended or revoked.
If the tools were stolen, a police report might need to be filed and included with the letter to your regulating authority.
After following your state’s guidelines on reporting the lost or stolen notary tool, you’ll need to replace the item as soon as possible. Again, each state may have specific steps you must follow when replacing any of these items.
6. Overcharging fees
Each state sets standard fee maximums that a notary is allowed to charge. These fees can range from as low as $1 in the state of Illinois to as high as $25 for a remote online notarization in Florida. The total may change depending on if there are multiple signatures or documents, any travel fees for mobile notaries, and the method of delivering the service (traditional vs. remote).
Some states, like Iowa, Kentucky, and Alaska, don’t set any maximum fees.
If a notary overcharges a customer, the state regulating agency may suspend or revoke the notary’s commission or fine the notary. The customer might also sue the notary. The UPS store has been the target of a class-action lawsuit alleging that the company overcharged customers for notary services.
7. Refusing to notarize a document for the wrong reasons
Notaries can refuse to complete a signing, but it must be for the right reasons. If you believe that any documents are falsified, the signer appears confused or coerced, you aren’t sure how to perform the particular notarial act requested, or there is any indication that the transaction is fraudulent, you shouldn’t complete the notarial act.
However, notaries can not discriminate against a client because of their sex, race, color, national origin, religion, age, disability, or other officially recognized protected class in your state. If you do refuse to complete a notarial act, you’ll want to be able to convey your reasoning and ensure it aligns with one of the right reasons. Otherwise, the customer may file a lawsuit against you for discrimination if they believe the refusal was biased.
8. False or misleading advertisements
A notary provides an essential service to the public, but the notary’s role is often limited in ways that a client might not realize. If a notary conveys in any way that he or she has duties, rights, or privileges not designated by law, the notary’s commission may be revoked or suspended.
In some states, non-attorney notaries are explicitly prohibited from translating the term notary into a foreign title like “Notario,” “Notario Publico” or “Licenciado” or other languages because these terms carry a connotation that the person has the right to practice law.
In Virginia, notaries who use foreign terms in advertising are subject to a $500 fine for the first offense and $1,000 for subsequent offenses.
In Florida, the literal translation of “Notary Public” into another language is prohibited, and advertisements must include the following statement: “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.”
9. Offering legal advice
As a public servant, notaries want to help their customers execute their documents properly, but offering legal advice is not part of the notary’s role. Additionally, it may be frustrating for clients who believe you have the ability to guide them, but it can lead to a lawsuit or other penalties for the unauthorized practice of law.
Some of the ways that a notary might get in trouble for this include:
- Suggesting what type of notarial act is needed
- Giving an opinion on the contents of the document or the potential legal outcomes
- Telling the customer what documents they need
In cases of a missing notarial certificate, a notary can describe the types of notarial acts they are authorized to perform and allow customers to choose the one they believe is best suited. If the customer is not certain, politely decline to complete the notarization and suggest that they reach out to the person or company who originated the document for direction.
10. Notarizing documents after your commission expires
Keep track of when your commission expires — whether intentional or not, notarizing a document after your commission expires presents major problems for your customers and you. Documents with an expired seal may be invalidated and cost your customer financial problems, which in turn may become a lawsuit against you.
In Florida, notaries “who knowingly act as a notary public after his or her commission has expired is guilty of a misdemeanor of the second degree” and may be subjected to up to 60 days in jail or a fine of up to $500. In Massachusetts, the fine ranges from $100-500.
This list may seem overwhelming to new notaries, but it shouldn’t deter you from performing your duties as a public servant. Take the time to review the various types of notarial acts and your state’s regulations before scheduling your first appointment with a customer.
While practice makes perfect, we all make mistakes. Notaries should also purchase E&O insurance to provide additional peace of mind and confidence when conducting their duties.
Sole Proprietorship vs. LLC: Which is Best for Notaries?
Amanda Farrell - 2 years ago
Remote Online Notarization Tools: eSeals, eJournals, & Digital Certificates
Amanda Farrell - 2 years ago