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Lesson 4:  In Depth Review of Law Subsections

 

Instructions: Review each of the subsection below in conjunction with the New York State License Law Booklet pages 2-14

Each Subsection corresponds to this material.  Also note you will not be asked to memorize actual subsection numbers (ie: §130) for the Exam.  However, you will be expected to know the information contained in the subsections.  Pay special attention to dates, time frames , monetary amounts, Class A Misdemeanor, Class D & E Felony.  NOTE violations of Professional Conduct = CLASS A Misdemeanor = 1 Year in Jail.  Some passages contain extra snippets of information.  These snippets are not part of the New York State booklet.

 

NOTARY PUBLIC COURSE OUTLINE

 

A Notary Public is considered a local and state Public Officer.  Must act impartial, take reasonable care, & to avoid a lawsuit: take every precaution expected of a person w/ordinary prudence & intelligence.

 

PROFESSIONAL CONDUCT: (p. 2)

 

1) Never take acknowledgments or affidavits over the telephone or without the actual signer & ID being present. (Illegal)

 

Reason: Real Property (land, buildings, housing) is at stake.  The faith (authentication) of these documents (deeds) and security (ownership) to them rests on your notarial signature.

 

2) Legal entities (ie: Corporations and partnerships) cannot take an oath, only an individual/officer of the corp./partnership may, however their relationship to the organization must be clearly stated in the document.

 

3) Always administer an “oath” or “affirmation”: $2.00 fee

     (Affidavits)

 

Oath (Verbal/Oral)

 

A. “Do you solemnly swear that the contents of this affidavit subscribed by you is correct and true?”

 

If person refuses to take an oath (religious or ethical reasons) administer an “affirmation”: $2,00 fee

 

Affirmation

 

B. “Do you solemnly, sincerely and truly declare and affirm that the statements made by you are true and correct?”

 

The only difference between an Oath and an Affirmation is the fact that you are using the word SWEAR in an OATH and DECLARE in an AFFIRMATION.  Both are equally binding, meaning that if it is found out later that the signer lied to the Notary, the signer will be charged with Perjury on either administration.

 

4) Never engage in the practice of the law directly or indirectly by doing any of the following: 1. No legal advice or composing legal papers. 2. Do not refer cases to a lawyer you do business with, especially when referral fees are involved (conflict of interest). 3. Never divide fees w/a lawyer or accept legal fees on any legal business. 4. Never advertise that you have other powers other than that of a Notary Public.

 

5) Always check a) identification containing 4 elements:

 

1) Photo

2) Signature; 

3) Physical description

4) Expiration (must be unexpired)

 

Types of acceptable id: US Drivers License (Canada, Mexico & US Territory: Puerto Rico, Guam, Virgin Islands, US Samoa) & non-drivers license, US Military Id card, *USCIS Card (green card) – (*formerly INS) – now U.S. Citizenship and Immigration Services (USCIS), US Passport (or foreign only if stamped by a US INS official), Sign by “X”, Prof. License (ie: Firearm,) (ID: must be issued by State /Gov’t agency), Permanent Resident Card

 

 

Personal acquaintance (known for at least 7 years).

 

b) Competency of signer (fully aware of document they are signing).

 

NOTE: If id is inadequate or unable to obtain id due to age or physically disability, use a credible witness  (personally known to signer and you, trustworthy & impartial. Both take oath and sign document). A credible witness should not have any type of interest in the transaction. [see Fact #’s 23 & 24]

 

Alternatively:

 

Use a subscribing witness, in absence of the actual signer (sub. wit. must personally know the signer, take oath, sign document, produce address, (St. & St. # if reside in NY City).  This is called “Proof of Execution”.  In addition the subscribing witness had to witness the signature of the actual signer and not be a party to or receiving an interest from the instrument.  [see Fact #28 & 44]

 

Result:                Follow procedures or professional misconduct - & commission will be revoked.

 

 (p.3-4)

 

The Secretary of State appoints and commissions Notaries Public after the following qualifications are met:

 

1.         Be a U.S. Citizen or possess a permanent resident alien card.

2.         Be of good moral character

3.         Have a common school education (6th grade) or equivalent 

4.         Familiar with their duties and responsibilities in acquiring your commission as outlined in the book and by successful completion of the state exam.

5.         Be a resident of the SNY or maintain a business/office in the SNY.

          

            Appointees waived from exam:

           

1.      Licensed Attorneys

2.      An appointed Court Clerk of the Unified Court System who passed the Civil Service Promotional Exam.

 

Notarial term = 4 years, must renew within 30 days.  If not, commission expires, reapply within 6 months if not retake test. (Military personnel receive a 1-year extension only after an honorable discharge.)

 

Secretary of State can remove or suspend any notary for misconduct only after serving Notary with a copy of the charges and Notary has an opportunity to defend charges at a hearing.

 

Secretary of State is designated as a Notaries official Process Server.

 

No appointments shall be made if you are convicted of felony in any state and for other offenses: (a) carrying/possessing dangerous weapons (b) making/possessing burglar devices (c) buying/possessing stolen property (d) unlawful entry of a building (e) aiding escape from prison (f) possessing/distributing narcotics (g) violating subsections of the law (h) vagrancy or prostitution.  However, you may be eligible if received “certificate of good conduct” from parole board or “executive pardon” from the governor.

 

§131 Procedure for Appointment; Fees and Commissions (p. 4 #1-6)

 

Successful completion of exam

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Submit notarized application with “official signature” and “oath of office” to Secretary of State $60

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Secretary of State issues commission, sends you a Notary Public Identification Card and sends your “official signature” and “oath of office” with $20 (apportioned from app fee) to County Clerk where you reside by 10th day of following month.

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County Clerk makes an index of the commission and "official signature”.

 

    The first time you are appointed everything goes to the Secretary of State, thereafter your re-appointment will go to the County Clerk where you reside.  Both places will always have your commission on file (Checks and Balance System).

 

Procedure for Reappointment  (p.4 #7-13)

 

     You should receive a renewal application 90 days prior to the time your commission is expiring.  Your commission will expire the same day of the same month every 4 years.

 

Submit to County Clerk notarized application with “official signature” and “oath of office” $60.

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County Clerk will issue a commission and send your “Official signature” and “oath of office” to the Secretary of State along with $40 (apportioned from app fee) by the 10th day of the following month.

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Secretary of State makes an index of the commission.

 

Other fees

$10 name change

$10 address change (must notify w/in 5 days of move) - Secretary of State in conjunction with the County Clerk serve as your official process server.  Therefore, if they need to serve you with papers requesting a court appearance for a document you notarized and you no longer reside at the location they have on file, you cannot assert that as a defense as to why you did not show up at court.

$10 duplicate card (lost, stolen, damaged), “duplicate” stamped on face, bear same # as one it replaces.  Report Lost or Stolen cards immediately.  In the event someone is illegally using your public office, this gives you a defense if your stamp is ever  misused or mishandled.

 

If changes occur during renewal period there is no fee.

 

§132 Certificates of Official Character of Notaries Public(p.4-5)

 

Notary may file their signature and certificate of official character in NY with any County Clerk’s office, Register’s office or the Secretary of State. $10 certificate $10 filing fee $5 if seal attached

 

    There is no need to file your signature in other counties.   Your commission/jurisdiction is good in any county within New York State.   Sometimes people elect to file their signatures in other counties so that it makes verification easier.  For example, if most of your notarizations occur in a Suffolk County, but you were originally qualified in Nassau County (your place of residence), an individual seeking a certificate of authentication wouldn't have to go to the Nassau County Clerk's Office to obtain one.

 

§133 Certification of Notarial Signatures  (p. 5)

 

Sometimes notarized documents that are introduced as evidence or recorded instruments (ie: deeds) may further require a County Clerk’s certification. $3.  County clerk is certifying/verifying you are authorized, commissioned, and your signature is authentic/genuine.

 

    Fee is paid by person making the request.

 

EXECUTIVE LAW §140  (p. 5)

 

Any person removed from office as Commissioner of Deeds in (NYC) is ineligible for Notary Public commission and/or re-appointment as Commissioner of Deeds. (Misdemeanor if act as such)

 

ELECTION LAW  (p.5)

 

§’s 3-200 and 3-400  A Commissioner of elections or inspector of elections is eligible for the office of notary public.  These officers may hold 2 public offices simultaneously. 

 

    Generally, New York State prohibits you from holding 2 Public Offices, however a "Commissioner" or "Inspector" of elections is eligible.

 

PUBLIC OFFICERS LAW  (p.5)

 

§3 Qualifications for holding office (p.5)

 

Any persons convicted of military violations may not be a commissioned as a Notary (part of “selection draft act”).

 

 

§534 County clerk; appointment of notaries public:  (p.5)

 

County clerk appoints a staff member to notarize documents to the public free of charge.  In return, staff member is exempt from fees applicable to maintaining their commission. (ie: application fee $60).

 

MISCELLANEOUS  (p.5)

 

Member of the Legislature  (p.5)

 

May hold two public offices (legislature & notary).  However, if a member of the legislature is appointed to any other office of the NYS government, where it will vacate their seat as a legislature, they may not hold 2 public offices.

 

Except, if position accepted is without compensation, legislature may retain notarial status. (ie: New position is pro-bono)

 

NOTE: Only legislature, commissioner of elect & inspector of elect may hold 2 public offices simultaneously.

Sheriffs  (p.6)

 

Sheriffs shall hold no other office.  Therefore, a Sheriff cannot be a Notary.

 

Notary public disqualifications  (p.6)

 

Disqualify yourself from participating in the notarization of documents where you may have any type of interest and therefore cannot be an impartial witness.  Among these type of interest include:

 

a) Beneficial Int. - the interest of a beneficiary, tangible or intangible, gain or advantage.  Motives could be questioned if you receive a benefit later.  I could be argued that you had a special interest in influencing the signer. (ie: you or family benefits)

 

b) Financial Int. - monetary reward or value.  However, it is not considered financial interest if you had no prior knowledge (ie: you receive a bonus because you notarized a document for the company which allowed them to obtain past due monies, hence they gave you a bonus)

 

c) Emotional Int. - something that would cause you to influence the signing (ie: executing a power of attorney for relative)

 

RULES:

1.     Do not notarize your own signature

2.     Do not notarize documents that you are a party to (deeds, mortgages, trusts)

3.     Do not notarize transactions where the notary receives an advantage, right or fee in excess of the lawful notarial fee.

4.     Do not notarize for relatives if it violates any of the above restrictions.

 

When in doubt, refer to another notary.  Notarize where “nothing to lose; nothing to gain”

 

EXECUTIVE LAW  (p.6)

 

§134 Signature and seal of county clerk  (p.6)

 

The signature and seal of a county clerk in issuing a “certificate of official character” or “certificate of authentication” of notaries and commissioner of deeds, may be faxed, printed, stamped, photographed or engraved upon such document. 

 

    Notaries may not notarize a faxed or photocopied signature, only original. Remember – triplicate forms fall under this realm.  Only top copy of triplicate form may be notarized unless signer executes carbon copies with original ink.

 

§135 Powers and duties; in general; of notaries public who are attorneys at law:(p.6-7)

 

Both notaries & attorneys are qualified, authorized and empowered to:

 

1. Administer oaths and affirmations

2. Take affidavits and depositions

3. Receive Acknowledgments

4. Certify Acknowledgments, proof of deeds, mortgages and powers of attorney

5. Demand acceptance or payment of foreign & inland bills of exchange, promissory notes... and obligations in writing.

6. Protest all of the above for non-payment or non acceptance of same. (You cannot demand or receive more than .75/ protest, .10/notice (not to exceed 5) on any bill or note and affix seal free of charge.

 

Protest - formal written statement made by notary that specific bill of exchange or promissory note was presented for payment and refused.

 

Note - written warning, intent -- to inform a person of hearing or trial where their interest is involved.          

 

Attorneys acting as Notary Public:  (p.7)

 

In addition to (1-6) above an attorney may do the following:

 

1. Administer oaths and affirmations & take affidavits or acknowledgments of his/her client (

 

    Even though this may be considered a Conflict of Interest on their part because they will be benefiting by receiving the portions of the settlement, they are allowed.

 

2. Exempt from notary exam

 

    After passing the BAR exam, attorneys may apply for their Notary Commission & Real Estate License

 

Misconduct:  (p.7)

 

In carrying out any of the above functions, you commit a wrongdoing by not following the prescribed rules, you will be liable to the injured party for all damages sustained by them. (ie: overcharging)

 

§135-a Notary Public or Commissioner of deeds; acting without appointment; fraud in office:  (p.7)

 

1. Do not assume, use or advertise that you are a notary public or commissioner of deeds unless you are officially appointed.

 

    You will know you are officially appointed when you receive your Commission Card by mail from the Secretary of State.

 

2. Once you are appointed do not practice any fraud (intentional deception resulting in injury to another -- misrepresentation, concealment or non-disclosure of a material fact and misleading conduct. or deceit (a false representation of a material fact made recklessly, or w/o reasonable ground for believing its truth and with intent to induce reliance thereon).  Result: Guilty of a misdemeanor.

 

§136 Notarial Fees (p.7) also see last page of book & definitions

 

To administer:

 

Oath $2.00

Affirmation $2.00

Certify (verify) signature $2.00

 

To take and certify:

Acknowledgment $2.00

Proof of execution of a written instrument (subc. witness) $2.00/person.

Swearing in witness $2.00

 

NOTE: unless other fee is prescribed by statute.  Check website periodically for any "Legal Updates".

 

§137 Statement as to authority of notaries public:  (p.7)

 

    This is the information that you would be affixing to a notarized document.

 

Use permanent black ink

Stamp preferred:

 

Your signature                      

Your Name

Notary Public State of New York

Comm. No.

Qualified in               County (Original qualification County)

Commission expires on date

 

Venue - Geographical place you take “affidavit” or  “acknowledgment” (State of New York, County of                .) County where notary act was performed.

 

If and when required “Certificate filed                   County”.

(When notarizing in another county other than original qualification, you must also include the Notary number you received from that County)

 

NOTE: A notarized document that does not comply with the above rules will not necessarily be considered invalid under certain circumstances.  However, if willful noncompliance is found, subject to disciplinary action by Secretary of State.

 

Also, if a person wanted to challenge the legitimacy of your notarial certificate (signature & stamp), such will be held as circumstantial evidence, provided such person could prove otherwise.

 

Attorneys:

 

May substitute the words “Attorney & Counselor @ Law” with “Notary Public”.

 

§138 Powers of notaries public or other officers who are stockholders, directors, officers or employees of a corporation:  (p.8)

 

A notary public, mayor, examiner of title, recorder of a city, commissioner of deeds... empowered by the State, should never notarize documents by or to a corporation which he/she is a stockholder, director, officer or employee, if, and only if, you personally are a party to that instrument --signee--(individually or as a representative of the company) or where making a protest for nonpayment of such you directly/indirectly have a financial interest in the collection of such funds.  Otherwise you may notarize documents for the company.

 

    This has to do with the "Conflict of Interest" concept.

 

§142 Validity of acts of notaries public and commissioners of deeds notwithstanding certain defects:  (p.8)

 

1. Except as provided in subdivision 3

 

Acts performed by notaries public and commissioners of deeds dealing with official certificate & other acts, shall not be deemed invalid, impaired or defective if they are questioned for defects under the following circumstances:

 

2. This section applies to the following defects

 

(A) Ineligibility of notary or commissioner of deeds

(B) Misnomer or misspelling of name or other error made to document while serving your appointment.

(C) Omission of the notary or commissioner to take or file your “official oath”or otherwise qualify

(D) Expiration of his/her term, commission or appointment;

(E) Vacating his/her office by change or residence, acceptance of another public office, or other action;

(F) The fact that the action was taken outside the jurisdiction where notary or commissioner is authorized to act.

 

3. No person shall be entitled to assert subdivision 3 to overcome a defect in subdivision 2 if:

 

A. You knew of the defect and B. The defect was apparent on face of certificate of the notary or commissioner

 

However, subdivision 3 shall not apply after the expiration of 6 months from the date of the act of Notary or Commissioner.

 

4. After the expiration (6mths) from when the act occurred, subdivision one will apply to a defect consisting of omission (whereby commissioner need state the date and place the act or error occurred)

 

5. This section does not relieve any notary or commissioner from “criminal liability” imposed by reason of his act or limit any rule which would deem the act valid.

 

    Generally speaking, if you have UNKNOWINGLY caused a defect to a document, you may not get in trouble, however if you INTENTIONALLY caused the defect you could be sanctioned.

 

REAL PROPERTY LAW:  (p.9) - This section deals with REAL ESTATE and documents used in REAL ESTATE transactions.

 

§290 Definitions; effect of article:  (p.9)

 

The term “conveyance” includes every written instrument, by which any estate or interest in real property is created, transferred, mortgaged or assigned, or by which the title to any real property may be affected, including an instrument revoking power in the execution of a conveyance.

Types of Real Property Instruments include: postponement or subordination of a mortgage lien, lease less than or = to 3 yrs, executory contract to sell or purchase land and an instrument allowing an agent or attorney to convey real property on behalf of the owner.

 

§298 Acknowledgments and proofs within the state (p.9)

 

     This subsection is referring to the WHO and the WHERE Acknowledgment forms can be filed in Real Estate Transactions

 

When conveying real property in the State of NY Acknowledgements can be taken anywhere within this state by:

1. WHOM

    (a) Justice of Supreme Court

    (b) Official examiner of title

    (c) Official referee

(d)   Notary Public

 2. WHERE:

        (a)   Judge or clerk of any court

        (b)   Commissioner of deeds

        (c)   Mayor or recorder of a city

        (d)   Surrogate or special county judge

        (e)   County clerk or other recording officer

 

3. WHOM (Village Residents)

        (a)   Justice of the peace   

        (b)   Town councilman

        (c)   Village police justice

        (d)   Judge of any court

 

§302. Acknowledgments and proofs by married woman: (p.9)

 

The acknowledgement or proof of conveyance of real property located in NYS or any other type of written instrument where a woman is named solely as the owner of such instrument may contain only the married woman’s signature.

 

    Many years ago woman were prohibited from transferring property, even if solely named, without her husband signing the deed in conjunction with her signature (even when husband was not named on the property).  This is the subsection that tells you this is no longer the case.

 

§303 Requisites of acknowledgments:  (p.9)

 

Do not take an acknowledgement, unless you can satisfactorily identify the affiant.

 

    Remember 3 ways to identify people. 

        1. Personal Acquaintance (known for several years).

        2. Completely unknown signer (use of identification)

        3. Credible Witness (someone who is known to both the signer and the notary)

 

§304 Proof by subscribing witness:  (p.9)

 

Proof in Real Property Law - If a document signer is unable to appear before a Notary, a subscribing witness may present the document in the signer’s place and prove that its signature is genuine.

 

When executing a conveyance of real property & using a subscribing witness, subscribing witness (not the actual owner of real property), must provide their place of residence, and state that he/she personally knew the signer and witnessed the execution of the instrument.

 

Subscribing witness cannot have any interest in these documents.

 

Proof should not be taken unless the above is established and you are personally acquainted with such witness or you have satisfactory evidence to believe that he/she is the same person who was a sub. wit. to the conveyance.  [see Fact #44]

 

    Although a subscribing witness is mentioned in this section, it will most likely not be allowed in any transaction that involves real estate.  An appropriate situation where an owner cannot be presented on the sale or purchase of property would be the use of a "Power of Attorney" or " Attorney in Fact".

 

§306. Certificate of acknowledgment or proof : (p.9)

An officer taking an acknowledgment or proof of conveyance must endorse or attach a signed certificate, stating that all matters required to be done, known, or proved along with the name and substance of the testimony of each witness examined before him upon the taking of an acknowledgement. (If sub. wit. used, include place of residence).  [see Fact #44]

 

[see state book (p.9-11) §309-a & §309-b]

 

    These are Acknowledgment forms used in Real Estate transactions.  You do not need to memorize the wording in these forms, only when to use each.

 

§309-a –Uniform Acknowledgment forms concerning Real Property located in New York State.  Used when the (purchasers) signatures are taken within NYS. Used when property and purchasers are both from NY State.

 

§309-b – Uniform Acknowledgment forms concerning Real Property located in New York State.  Used when the (purchasers) signatures will be taken outside of NYS.  Used when property is in NY State but purchasers are from out of state.

 

NOTE: US Serviceman must include rank, serial# and command in real estate transactions.

 

§330 Officers guilty of malfeasance liable for damages (p.11)

 

Malfeasance - unlawful conduct, which interferes w/the performance of your official duty.

 

Authorized officers (ie: notaries, commissioner of deeds or recorders) guilty of malfeasance or fraudulent practice in executing any instrument will be liable for damages to person injured.

 

§333 When conveyances of real property not be recorded: (p.11)

 

Notaries or other recording officer never record or accept for record any instrument of conveyance of real property, unless:

 

1) They are written in English or accompanied & attached by a translation into English (by court appointed translator designated by a County Judge or Justice of the Supreme Court in the county where record of conveyance will take place), which is duly executed by the person(s) making the conveyance & in addition be proved and authenticated.  Furthermore, documents shall be accompanied by an Affidavit of Translation by the Court Appointed Translator.

 

It must be signed, acknowledged and certified under “oath” or by “affirmation” to be a true and accurate translation and contain a “certification of designation” showing the judge appointed said translator.             

Note: cannot notarize foreign language document unless you’re thoroughly fluent in that language. Foreign name must be written w/English letters.

 

If document does not require a written translation and you are fluent in that language, you may notarize.  However, make sure Notary Certificate is written in English and the document will not be filed in New York State.  Only English language documents are suitable for recording in New York State.

 

In addition, you cannot notarize for an individual whom you cannot communicate with due to a language barrier and therefore, a third party translator is present.  You must be able to communicate directly with your signer.  If not, they must seek a bilingual notary.

 

Special Note: (p.11-12)

 

You may take an “acknowledgment” & “proofs of conveyance” before obtaining a certificate of authentication of a county clerk, when recording or using as evidence.  Unless instrument is to be used outside U.S. Jurisdiction.

 

 

§335 BANKING LAW:  (p.12)

 

Re: Safe Deposit Boxes leases held at the Bank

 

Key holder/renter (lessee)    Bank (lessor)

 

If rent is not paid within 1 year or contents not removed within 30 days of termination of lease, after 30 days and proper/efficient notice given to Renter(lessee) w/no response.  The bank has the right to open the safe deposit box in a Notaries presence and remove it’s contents therefrom with said Notary taking proper inventory.

 

Notaries Job in this case is to be present at the time the safe deposit box is opened with Bank Officer and issue a “Certificate under Seal” which states:       1)Date box was opened by the Bank (lessor), 2) Name of the Renter(lessee) and; 3) a list of the contents contained in the box.  A copy of this certificate must be mailed to the renter(lessee) @ his/her last known postal address within 10 days of the opening.  Bank holds contents for 2 yrs & rent continues to be billed for safe keeping of property. 

 

After 2 yrs Bank hold public auction to cover bank costs; after 3 yrs remaining proceeds become abandoned prop, doc. & articles of value are retained for 10 yrs b/4 destroyed.

 

Rule 3113. Civil Practice Law and Rules:  (p.12)

 

This rule authorizes a deposition to be taken before a notary public in a civil proceeding.

 

§11. Domestic Relations Law: (p.12)

 

A notary has no authority to solemnize marriages or take acknowledgments of parties and witnesses to a written contract of marriage.

 

§10. Public Officers Law:  (p.12)

 

Official oaths, permits the oath of a public officer to be administered by a notary public.

 

    One of our functions as a Notary would be to swear in people.  This means you could swear a Mayor in to Office...

 

JUDICIARY LAW  (p.12-13)

 

No “natural person” should ever hold himself out to be an attorney, or receive money for acting in such a capacity.

 

For instance: never take compensation for the following acts:

 

1. Court Appearances or appearing before a Magistrate (Justice of the Peace)

 

2. Preparation of legal papers and legal instruments.

 

Exception to the Rule; when compensation may be collected

 

      1.  If you are an Attorney.

 

2. Appointed Officers of Societies for the prevention of cruelty.

 

3. Law students who have completed 2 semesters of law school

 

4. Law school graduates who have taken the Bar exam; or if failed, during the time they take the immediate second Bar Exam, until the time they are notified of a second failure.

 

5. Same as #4 except it includes Law School Graduates who have graduated from a Law School approved pursuant to the court of appeals for the admission of attorneys and counselors-at-law. (Part of the accrediting process).

 

6. Law school students may act in a limited capacity if under the supervision of legal aid or other supervised program approved by the appellate division.

 

§485 Violations of certain preceding sections a misdemeanor  (p.13)

 

Any person violating the provisions of §’s478-484, shall be guilty of a misdemeanor.

 

§750 Powers of courts to punish for criminal contempt:  (p. 13)

 

Any person who unlawfully practices law will be punished for criminal contempt by the Supreme Court through the court’s own motion/ proceeding, or by a motion from any investigative/prosecuting officer of NYS (ie:D.A.) or by any NYS Bar Association.

 

Illegal practice of law by notary public:  (p. 13)

Classifications of law practice include but are not limited to:

1)     To counsel & advise

2)     Drafting any legal agreements or documents of any kind

3)     Organization of Corporations (Articles of Incorporation)

 

Wills:  (p.13)

“The execution of wills under the supervision of a notary public acting in effect as a lawyer, cannot be too strongly condemned”

Reason:

1.      Invasion of the Legal Profession

2.      Renders testators Will worthless

 

PUBLIC OFFICERS LAW:  (p. 13-14)

 

Notary must not act before taking and filing oath of office: (p. 13)

 

A public officer (ie: notary public) must take and file official “oath of office” before acting in any notarial capacity.  (If not Misdemeanor)

 

§67 Fees of public officers:  (p.13-14)

 

  1. A public officer must execute his/her function without fee or reward unless one is prescribed by law.  (Law allows fee $2.00).

 

  1. An officer or other person may not charge/receive a greater fee other than what is set forth by law.

 

  1. An officer may not demand/receive compensation prior to performing their service.  Except where he is by law permitted to do so. (ie: Attorneys requiring a retainer fee)

 

If any of the above (1-3) restrictions are violated, an officer is liable by punishment for the criminal offense to person aggrieved in addition to treble damages (3 x’s jury verdict).  Also, criminal prosecution, civil suit and possible removal from office.

 

§69 Fee for administering certain official oaths prohibited:  (p.14)

 

An officer is not entitled to collect a fee when administering an oath to another public employee/officer (ie: legislature, military officer, inspector of elections…)

 

    You may not be charged when having your own documents notarized.  Nor shall you charge a fee when notarizing a fellow public officer.

 

EXECUTIVE LAW:  (p.14)

 

Misconduct by a notary and removal from office: (p.14)

 

A notary public shall not practice any fraud or deceit in the performance of their duty.  (Misdemeanor and possible removal)

 

 

Fraud or deceit includes:

  1. Misstatement of material fact on application for appointment. - Do not give any false information on your application.

  2. Prepare or take an oath of an affiant to statements known in advance to be false or fraudulent by the notary. - This is a "Prior Knowledge" issue from our concepts.

 

PENAL LAW:  (p. 14)

 

§70.00 Sentence of imprisonment for felony:  (p.14)

 

Maximum term of an indeterminate sentence shall be at least 3 years.

Class “D” Felony = max 7 years

Class “E” Felony = max 4 years

 

§70.15 Sentences of imprisonment for misdemeanors and violation  (p.14)

 

Class “A” Misdemeanor = max 1 year

 

§170.10 Forgery in the second degree:  (p.14)

 

A person is guilty of forgery in the 2nd degree when with the intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument, which if completed is to represent:

            A deed, will, codicil, contract, assignment, commercial instrument…., public record…, an instruments officially issued or created by a public office, gov’t  (ie: preparing deed - class D felony, 7 yrs)

 

§175.40 Issuing a false certificate:  (p.14)

 

A person is guilty of issuing a false certificate when, being a public servant authorized by law to make such official instruments and with the  intent to defraud, deceive or injure another he issues such instrument knowing that it contains false information or statements (ie: creating a false birth certificate – class E felony, 4 yrs)

 

    The difference between 170.10 & 175.40 is that in 170.10 the Notary was NOT an authorized officer to make these official instruments and did so in a false way.  Subsection 175.40 the Notary WAS authorized to make these instruments but did so in a false way.  Because in the latter situation the Notary was authorized to make the instrument is what gives them the lesser sentence. 

 

§195.00 Official Misconduct:  (p.14-15)

 

A public servant is guilty of official misconduct when, with the intent to obtain a benefit, injure, or deprive another person of a benefit he knowingly:

 

1)     Constitutes an unauthorized act in exercising his official function. (ie: backdating a notary certificate)

2)         Refrains from performing his official duty (ie: declines to notarize)

      Official misconduct = Class A misdemeanor, 1 yr

 

Notary must officiate on request  (p.15)

 

An officer before whom an oath or affirmation may be taken is bound to administer same when requested. (part of §195.00 of Penal Law)

 

Refusal = misdemeanor Class A, 1 yr

 

Perjury:  (p.15)

 

One is guilty of perjury when he knowingly and willfully gives false testimony on a material matter, under oath or by affirmation as to the truth of such statements. (ie: lying under oath)

 

    Remember, those who lie under oath or affirmation  will receive a perjury charge in addition to what they are being convicted of.  This is why it is so important to administer the oath or affirmation with an Affidavit form.