Bulletin: FL000001

Dear Associates:

As I am sure you know, on January 1, 1992, a new notary law takes effect in Florida.

We have attempted to cover in this bulletin the more significant changes which affect how a notary will perform his/her duties within the title insurance industry. Please be sure that this bulletin is circulated to all notaries and all examiners in your employ.

I wish to emphasize that properly performing the duties of a notary is not a mere formality. There are, in fact, several claims pending with Stewart Title Guaranty Company arising out of the failure of notaries to properly perform their duties. In one instance, a claim was recently paid in a figure exceeding $70,000 with attorneys fees because there was no indication in the file whatsoever that the notary had obtained proof of identification where, in fact, the signature in question was a forgery. This is not to be taken lightly.

Seal

Under the new law the notary seal must be in the form of a rubber stamp. The rubber stamp shall include the words "Notary Public - State of Florida". The seal shall also include the name of the notary public, the date of expiration of commission, and the commission number. The seal must be placed on every notarized document in black ink. Each notary shall print, type, or stamp below his/her signature his/her name exactly as commissioned. The use of an impression (raised) seal may be used in addition but not in place of the rubber stamp seal.

Unfortunately, the statute does not require the rubber stamp seal to be used uniformly as of January 1, 1992, but instead allows a notary to continue to use the old type seal until reappointment. This means that all type seals will continue to be used for the next four years before the are completely phased out. For the small cost involved, we recommend that all notaries employed by Stewart Title offices and agents use the new rubber stamp seal immediately.

Identification

In taking an oath, the certificate must state that the signer personally appeared before the notary at the time of notarization. The notary must personally know or have satisfactory evidence that the person making the acknowledgment is the individual who is described in and who is executing the instrument. "Personally knows" means having an acquaintance derived from association with the individual which established the individual's identity with reasonable certainty. Since a notary may in the future have to be called upon to prove the extent of the personal knowledge, I recommend that all notaries disregard this clause entirely and instead rely upon the "satisfactory evidence" which is further described in the statute.

"Satisfactory evidence" means the absence of any information, evidence, or other circumstances which would lead a reasonable person to believe that the person making the acknowledgment is not the person he claim to be and any one of the following:

1. The sworn written statement of a credible witness personally known to the notary public that the person making the acknowledgment is personally known to the witness; or

2. Reasonable reliance on the presentation to the notary public of one of the following forms of identification, if the document is current or has been issued within the past 5 years.

a. An identification card or driver's license issued by the Department of Highway Safety and Motor Vehicles;

b. A passport issued by the Department of State of the United States; or

c. Reasonable reliance on the presentation of any one of the following forms of identification, if the document is current or has been issued within the past 5 years and bears a serial or other identifying number, and, if the document is a passport, the document is stamped by the United States Immigration and Naturalization Service:

A passport issued by a foreign government;

A driver's license issued by a state other than Florida or by a Canadian or Mexican public agency authorized to issue drivers' licenses;

An identification card issued by a state other than Florida;

An identification card issued by any branch of the armed forces of the United States; or

An inmate identification card issued on or after January 1, 1991, by the Department of Corrections for an inmate who is in the custody of the department.

The preceding and the following are extracted directly from the statute.

A notary public may not notarize a signature on a document if:

3. The person whose signature is being notarized is not in the presence of the notary public at the time signature is notarized.

4. The document is incomplete.

5. The person signing the document has been adjudicated mentally incapacitated, and the notary public knows or has reason to know that the person has been adjudicated mentally incapacitated.

6. The person whose signature is to be notarized is related to the notary public by blood or marriage.

7. The notary public has a financial interest in or is a party to the underlying transaction.

The employer of a notary public shall be liable to the persons involved for all damages proximately caused by the notary's official misconduct.

A notary is occasionally called upon to certify a copy. Be advised that the statute is very specific in this regard also providing as follows:

Acknowledgments

A notary public may supervise the making of a photocopy of an original document and attest to the trueness of the copy. A notary public may not supervise the making of a photocopy and may not attest to the trueness of a photocopy of a public record if a copy can be made by another public official.

A notary public must use a certificate in substantially the following form in notarizing an attested copy:

State of Florida
County of ______

On this _____ day of _____, 19___, I attest that the preceding or attached document is a true, exact, complete, an unaltered photocopy made by me of ___(description of document)___ presented to me by the document's custodian, _______________, and, to the best of my knowledge, that the photocopied document is neither a public record nor a publicly recordable document, certified copies of which are available from an official source other than a notary public.

(Official Notary Signature and Notary Seal)
(Name of Notary, Typed, Printed or Stamped)

There are certain acts which are prohibited in the statute. Most of these were covered in the prior section where we said there were certain circumstances under which a notary may not notarize a signature.

In addition, be advised that a notary may not take the acknowledgment of a person who is blind until the notary has read the instrument to the person.

Also, be advised that a notary may not take acknowledgment of a person who does not speak or understand the English language unless the nature and effect of the instrument to be notarized is translated into a language which the person does understand. This can raise some problems in that, unless the translation is a complete translation of the entire document, questions may be raised at a later date as to whether or not the translation sufficiently explained the nature and effect of the instrument. This also raises a question as to whether the translation must be in writing. This is not specified. If the translation is in writing, the quality of the translation can be reviewed at a later time. If the translation if not in writing, one will never know how complete and accurate the translation was nor whether or not it even existed.

A notary who falsely or fraudulently takes an acknowledgment or makes a certificates is guilty of a felony of the third degree.

The following are the short forms of acknowledgment for several different circumstances which are the forms of acknowledgment specifically set forth in the statute. These should be followed.

For an individual acting in his own right:

State of ___________
County of _________

The foregoing instrument was acknowledged before me this (date) by (name of person acknowledged), who is personally know to me or who has produced (type of identification) as identification and who did (did not) take an oath.

(Signature of Person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)

For a corporation:

State of ___________
County of _________

The foregoing instrument was acknowledged before me this (date) by (name of officer or agent, title of officer or agent),of (name of corporation acknowledging), a (state or place of incorporation) corporation, on behalf of the corporation. He/she is personally know to me or who has produced (type of identification) as identification and did (did not) take an oath.

(Signature of Person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)

For a partnership:

State of _____________
County of ___________

The foregoing instrument was acknowledged before me this (date) by (name of acknowledging partner or agent), partner (or agent) on behalf of (name of partnership), a partnership. He/she is personally know to me or who has produced (type of identification) as identification and who did (did not) take an oath.

(Signature of Person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)

For an individual acting as principal by an attorney-in-fact:

State of ___________
County of _________

The foregoing instrument was acknowledged before me this (date) by (name of attorney in fact) as attorney in fact, who is personally known to me or who has produced (type of identification) as identification and who did (did not) take an oath, on behalf of (name of principal).

(Signature of Person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)

By any public officer, trustee, or personal representative:

State of ____________
County of __________

The foregoing instrument was acknowledged before me this (date) by (name and title of position) who is personally known to me or who has produced (type of identification) as identification and who did (did not) take an oath

(Signature of Person taking acknowledgment)
(Name of acknowledger typed, printed or stamped)
(Title or rank)
(Serial number, if any)

Unrelated to the notary law, there is a new requirement that the names of witnesses be typed in place under their signature. The rule to follow is that the names of all parties should be typed under their signatures as most signature, including my own, are not legible.