Lesson 3:    Definition Review - Use of Sample Forms

 

Introduction: The New York State License Law booklet is comprised of the following sections that you are required to know in order to pass the NYS exam:

 

    The following sections are from the New York State License Law Booklet 

• Subsections of various laws – pages 5-13

• Definitions – pages 13 - 16

• Fee Schedule – page 16

 

If you haven't already done so, please download a copy of this booklet  License Law Booklet .  Please be sure to print and review this book as it parallels the coursework.  This course uses simplistic language and models to explain the information contained in the New York State License Law booklet.  However, the test uses very technical language and should not substitute the License Law book; therefore I encourage you to review the NYS booklet in conjunction with this course to receive the greatest benefit.

 

The definitions are an integral part of understanding the Legal Subsections which is why we cover them at the beginning.  Once you’ve completed the definition review, you will find that most of what is contained in the Legal Subsections are generally a repeat of what is covered in the definitions (mostly with a twist being added).  Therefore, it is essential for you to understand the meaning of these words and the theory behind them.  The definitions are approximately 85% of what will be covered on the New York State exam.

 

Also note: we have placed the fees from the “fee schedule” in every definition and subsection to which they coincide.  In addition, you will find keywords in (parenthesis) and underlined words in terms for easy memorization.  We’ve also compiled a list of Notary Public Facts entitled “Notary Fact Sheet” which is a snap shot of cross references to important topics covered. Some definitions contain extra snippets of information.  These snippets are not part of the New York State booklet, but rather informational.

 

​

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Acknowledgment –($2.00 fee collected by the Notary per person and/or per signature).  An acknowledgement is a type of form that you will be notarizing.  It is commonly found in Real Estate transactions although it may appear in other industries as well.  A formal declaration before a duly authorized officer by a person who has executed an instrument that such execution is his act and deed. The purposes of the law respecting acknowledgments are used to promote the security of land titles and to prevent frauds in conveyancing, in addition to furnish proof of the execution of conveyances so as to permit the document to be given in evidence, without further proof of its execution, and make it a record-able instrument. (See sample form for proper execution and directives) [Cross Reference Fact #45]

 

As a Notary, there are two types of forms that you will be executing: 1) an Acknowledgment and 2) an Affidavit (discussed later).  The rules differ slightly with each form.   To determine what type document is before you, you must look towards the bottom of the document which will contain either a NOTARY CERTIFICATE (Acknowledged/Affirmed to..) indicating that the form is an Acknowledgment or a JURAT (Sworn/Subscribed to..) indicating the form is an Affidavit.

 

  Acknowledgments – Notarial Certificate states, “ Acknowledged/Affirmed to before me…I _________ a Notary Public for the State of New York hereby certifies

that on this _____day of _________personally appeared before me….”

 

Acknowledgment Indicates:

 

1.      Signer personally appeared before the notary

2.      Signer is identified by the notary

3.      Acknowledged to the notary that the document was freely signed for the purposes stated in the document

 

Therefore, signer does not need to sign the document in the presence of the Notary unless stipulated.  The constituent must appear before the notary at the time of

notarization to acknowledge that they signed for the purposes stated in the document.  In taking an acknowledgment the notary is certifying as to the identity and

execution of the signer.

 

Administrator – person appointed by the court to manage the estate of another individual upon their death where no Will was left.  A.K.A. Died Intestate

 

Affiant (A.K.A. Deponent/Constituent) – The individual who is subscribing their signature to an affidavit. (the document signer appearing before you)

 

Affidavit – ($2.00 collected by the Notary - per person and/or per signature). An affidavit is a type of form that you will be notarizing.  It is used in many industries and denotes subject matter that would allow an individual to swear to the contents of a document. Official oath to be administered by the Notary: “Do you solemnly swear that the content of this affidavit subscribed by you is correct and true?” [Cross Reference Fact #45] An affidavit is a signed statement, duly sworn to, by the maker, before a notary public.

 

Affidavit – The Jurat is a sworn (spoken) statement by an affiant.  Jurat states …..Subscribed (signed) and sworn to before me personally appeared ________

on this _____ day of _____...  It involves the administration of an oath by the notary to the signer and requires a notary to execute the Jurat.

(See sample form for proper execution and directives)

 

Affidavit Indicates:

​

1.      Guarantees by Jurat that the signer personally appeared before the notary

2.      The signer was given an oath or affirmation by the notary

3.      The document was signed in the presence of the notary

4.      The signer was identified by the notary

 

Affirmation (Oath) ($2.00 collected by the Notary) – A form of oath given by a notary to an individual who declines taking an oath due to religious beliefs or ethical reasons.

An affirmation is just as binding as an oath, therefore, if an individual is lying they will be charged with perjury.  The only difference is you would use the term “DECLARE” instead of “SWEAR” when administering this form of oath.

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

 

Apostille – ($10 fee paid to the State) - This is a document issued by the Department of State verifying/authenticating a notary’s signature & office.

·        Requested of notarized documents that will be used outside US Jurisdiction.  Generally out of state or overseas documents.

 (See sample form) –  [Cross Reference Fact #43]

What is an Apostille?

 

Under the Hague Convention, signatory countries have agreed to recognize public documents issued by other signatory countries if those public documents are authenticated by the attachment of an internationally recognized form of authentication known as an "apostille."  The apostille ensures that public documents issued in one signatory country will be recognized as valid in another signatory country.

• When a document is to be used in a foreign country, it may be necessary to authenticate the notarization or certification. Foreign countries often require documents to be authenticated before the documents will be accepted in the foreign jurisdiction. An "authentication" certifies the signature and the position of the official who has executed, issued or certified a copy of a document.

• The sole function of the apostille is to certify the authenticity of the signature on the document; the capacity in which the person signing the document acted; and the identity of any stamp or seal affixed to the document.

An apostille issued by the New York State Secretary of State is a one page document embossed with the Great Seal of the State of New York. The apostille includes the facsimile signature of the individual issuing the certificate.

 

Attest – to bear witness to the execution of a written instrument at the request of an individual. (To state….)

 

Attestation Clause – The clause (e.g. at the end of a will) where the witnesses are certifying the instrument has been executed in their presence.  You would simply enter your name and address only with an Attestation Clause.  No notarization required, especially if the attestation clause appeared on a Will.  Wills should NEVER be executed by a Notary Public.  This would void the Will and hold you responsible.  A Last Will and Testament may only be executed by an Attorney.  (See sample form)

 

Authentication (Notarial within the US) ($3.00 collected by the County Clerk) – A county clerk certificate that verifies the authenticity and authority of a Notary.

• Required for recordable instruments

• Requested when notarized documents will be used in a Court of Law

 

This is just like its counterpart the Apostille.  However unlike the Apostille an Authentication Notarial (a.k.a. County Clerk’s Certificate) is used at the County level.  Any document a Notary executes that will ultimately be filed with the County Clerk’s Office (ie: Deed) is required that the County verify your signature via Authentication Notarial before they file such deed.  This is to thwart fraud.  In addition, sometimes Notarized documents that are introduced as evidence in a Court of Law need to be authenticated, hence the Authentication Notarial.

 

Both the County Clerk and Secretary of State have your signature on file as a checks and balance system.

 

Bill of Sale – A document given to pass title of personal property from vendor to vendee. (See sample form) 

 

Certified Copy – A copy of a PUBLIC RECORD signed and certified as a true copy where the public official remains the original custodian of such document (ie: the Bureau of Vital Statistics maintain original Birth & Death Certificates.  If you needed a copy of these records you may apply to that agency for one.  They will issue you a certified copy of this instrument by making a copy of its original and sealing it as certified.).  A notary public has no authority to issue certified copies.  As a general notary, we have no obligation to maintain anyone's original papers; therefore we cannot issue a certified copy of a document where we are not in possession of the original.  Types of certifiable instruments would be documents such as: Birth Certificates, Death Certificates, Divorce Pleadings, DMV Accident Reports…. The only individuals who could issue a certified copy of these instruments would be the agencies who maintain the originals.

 

A notary may however issue an Attested Copy of a document.  These types of documents consist of original credentials the general public would have in their possession, such as a High School Diploma or College Degree with raised seal.  When a notary witnesses the photocopying of such documents we call this an attested copy and this is within the realm of a notarial act.  A constituent may photocopy their original College Degree and write a statement attesting to the fact of it's authenticity and a Notary could notarize this form.   [Cross reference Fact #10]

 

Chattel – Any personal property that is not real estate property or associated with real estate. (ie: furniture).  For example, you are selling your home but not the furniture in it.

 

Chattel Paper – A writing which evidences an obligation to pay money where there is security interest involved (ie: promissory note, bank check, car loan).

​

Codicil – The amendment form, which modifies a Will that was previously drawn and executed (ie: adding or withdrawing people from an existing Will). (See sample form).  A notary may NOT execute a Codicil for the same reasons they cannot Notarize a Will.

 

Consideration – Anything of value (ie: money, personal services, love & affection) given to induce entering into a contract.  It is grounds in which to file suit.  For example: Fred gives Jane and engagement ring with the hopes that they will get married.  Jane leaves Fred for another man and decides to keep the ring.  Fred sues Jane for Consideration of the fact that the ring was given in the hopes that a marriage would ensue.  Fred prevails.

 

Contempt of Court – Disrespectful behavior of the authority of a court that disrupts the execution of court orders. (ie: You will be held in “contempt of court” if you do not divulge information that is requested of you by the court).

 

Contract – An agreement between competent parties (legal age to enter into a contract is 18 years or older – unless emancipated minor) to do or not to do certain things for legal consideration,  whereby each party acquires a right to what the other possesses.

 

Conveyance (Deed) – Every instrument in writing (EXCEPT A WILL), by which any real estate is conveyed. (ie: to give)

 

County Clerk’s Certificate (See Authentication Notarial) $3.00 collected by the County Clerk.

 

Deponent (Affiant) – An individual taking an oath to written statements or a person subscribing a deposition.

 

Deposition – The testimony of a witness (under oath) taken out of court intended to be used at a trial or hearing.

• Notary may swear in deponent before testimony is given

• Notary may witness the testimony (videotape, actual, audio)

• Notary may notarize a deposition

 

Duress – Unlawful constraint exercised upon a person forcing them to do some act against their will. (Notary to decline notarial services if posed with this situation).

 

Escrow –Property held by a third person (depository) that will be delivered to another upon the fulfillment of some condition (when entered into, an escrow agreement becomes an unalterable agreement).

 

Executor – (a.k.a. Executrix – female appointee) One named in a Will to carry out the provisions of the Will.  This is when someone dies Testate – with a Will and appoints a family member, relative or some other to carry out their last wishes.  (Do not confuse this term with Administrator = Intestate, died without a Will)

 

Ex Parte – (One sided). A hearing or examination being presented by one party whereby the other party is absent.  Any form of communication with the court without the other side being privy to.  Some examples include an Affidavit whereby a person is swearing that contents of such document is factual.  In addition, a Hearing before a grand jury whereby individuals are being presented with evidence about a suspect (who is not present in the Court Room) and deciding whether or not to indict him/her.  In both instances we are dealing with one sided situations.

 

Felony – A crime punishable by death or imprisonment. ASKED ON TEST

·        Class D Felony = 7 years

·        Class E Felony = 4 years

 

Guardian – The person in charge of a minor’s person or property or someone declared incompetent by the Court. 

Some examples of Guardians are: (Law Guardian - appointed for children …Guardian Ad Litem appointed for Adults.

 

Judgment – Decree of court declaring that one individual is indebted to another with such amount affixed to the document.

There are many types of Judgments (ie: Money Judgment). – Sample Form

 

Jurat – Part of an affidavit where the Notary certifies that it was sworn to before him/her. (It is not the actual affidavit itself.  It is the phrase “Sworn to before me…)

 

Laches – The delay or negligence in asserting a claim.  (ie: The delay of someone filing a claim against you has caused you to lose your evidence and therefore you cannot properly represent yourself).  For example: my neighbor decides to sue me for something that allegedly happened 5 years ago.  She claims my dog bit her causing her physical damages.  We are still within the statue of limitations; however, since my dog has passed away, I have no way to prove to the court that my dog had no teeth for the past five years of its life due to a decay problem.  Laches would be my defense to assert in order to prevail.

 

Lease – A contract which indicates an owner of property transferring their right to another individual for the consideration of rent for a specific time period.  Do not confuse this term with Contract.  In a contract you have 3 layers of involvement (competent persons, legal consideration and each party is acquiring a right to something).  With a lease it is a form of a contract whereby a specific time period is involved.

 

Lien – A legal right or claim upon a specific property, which attaches to the property until the debt is satisfied.  Do not confuse this term with Judgment.  The Lien attaches itself to property whereas the Judgment does not.

 

Litigation – The act of carrying on a lawsuit.

 

Misdemeanor – Any crime other than a felony.

• Class A = 1 Year

•     Professional Misconduct

•     Official Misconduct

 

Mortgage on Real Property – A duly executed written instrument, which creates a lien on real estate as security for the payment of a specific debt.  It is usually in the form of a Bond.

 

Notary Public: (Public Officers)

• Executes acknowledgements so that the information they contain may be used as presumptive evidence in a court of law.

• Administer Oaths & Affirmation regarding the truthfulness of statements contained in documents

• Do not discriminate (vicarious liability)

A Notary shall not discriminate means: do not refuse your services (unless you have good reason to), do not make it a habit of charging some people a fee and not others.  The only people by law you are not required to charge a fee to is a fellow public officer and/or public employee. 

 

Oath – A verbal/oral pledge given by a notary to an affiant with the understanding that the affiant will be punished (charged with Perjury) if they lie under oath.  “Do you solemnly swear that the content of this affidavit subscribed by you is correct & true”?

            Form – A notary should be as serious as possible when administering the oath. (we are considered " Fraud Deterring Agents").  We may be the last person someone would see before they commit a wrong doing.

• A corporation cannot take an oath; only individuals (ie: Cannot notarize a signature: “ABC Corporation”.  Can notarize: “John Doe, President” only if stipulated within document.)

• Notary cannot notarize their own papers

• Notary Public office is non-transferable (to other states or people).  Therefore, you may not use your Notary Public Office outside New York State.  Your jurisdiction is good in any County WITHIN New York State.

 

Plaintiff – A person who files a suit or brings an action against another.

 

Power of Attorney – A document allowing another individual to act on their behalf. (Can Notarize) – However, do not perform if for a close relative or family member. Sample Form  In executing a Power of Attorney it is essential that you do not have any type of interest in this form.  By interest we mean you are not named in, related to, or directly have a financial, emotional or beneficial interest by notarizing this form.  The issue becomes whether or not you may have influenced the signing.  (ie: You notarize a Power of Attorney for your Grandma giving you Mother the power to act on her behalf.  If it is questioned by a relative, such as, you mothers brother (your uncle) they just may prevail in a court of law.

 

Proof – The declaration made by a subscribing witness to a Notary:

• I swear I know and have seen the individual sign this document

• This is my place of residence

(ie: Your neighbor needs something notarized and she has the flu.  You watch her sign the document, bring it to a notary, take an oath and swear to the notary you've witnessed the execution of the actual signer and that you personally know them and have absolutely no interest in the document before you.  You must also produce your place of residence.) [see Fact #28 & 44].  Although not common practice, a subscribing witness is someone who appears before a notary in the Absence of the ACTUAL Signer.  The actual signer signed the document in the presence of the subscribing witness.  The subscribing witness is attesting to this fact.  A subscribing witness cannot have any type of interest in the document being notarized.  When verifying a Subscribing Witness the notary is required to see the Subscribing Witness' ID, administer an oath and provide the Subscribing Witnesses place of residence on the document.  NOTE:  You may decline this type of transaction if you feel suspicious of the circumstances.  Also, the subscribing witness may not hand over the actual signer's ID as a form of identification.  Remember PERSONAL APPEARANCE by the signer is always required.  However, In the absence of personal appearance by way of subscribing witness - it the subscribing witness' ID that you are verifying, never the actual signer. 

 

Protest – (.75¢ notary to collect .10¢ each additional not to exceed 5) A statement under seal by a notary, which explains in full detail why an instrument has been refused for payment. (ie: Check was returned due to insufficient funds or the account has been closed by our client...).  It is a document that one would need to show the court as evidence if you were to sue for non-payment. 

 

Seal – New York State Notaries are not required to have a seal.  Seals are only used for notarized documents that will be used overseas or out of state.  If you work in an industry that conducts business out-of-state and/or overseas than you would need to purchase a seal.

            Seal Inscription: “Your Name, Notary Public for the State of New York” 

 

Signature of Notary Public – A notary must sign only w/the name in which they were appointed.

• If you change your name during your term of office (due to marriage/divorce...), you must wait until you re-apply for your commission before you can use it. (Prior to renewing you may enter your new name in parenthesis after your qualified name [ie: Dina Smith (DiRoma)]

• What must appear after your signature by black ink pen, typed or black inked rubber stamp:

  • Your name

  • Notary Public State of New York

  • Commission Number

  • Qualified in _______ County

  • Commission expires ________

• Members of religious orders may become a commissioned notary with a secular name (ie: Father Kevin Notary Public)

 

Statute – Law established by the act of a legislature

 

Statute of Frauds – State law which provides that certain contracts should be in writing or partially complied with in order to be enforceable in a court of law.

(ie: You lend money to a friend and have them sign a paper stating the amount borrowed.  If they default you can take them to court and sue under Statute of Frauds)

 

Statute of Limitations – A law limiting the time in which a criminal/civil action must be started. (ie: If the time runs out you cannot file suit).  You are not required to know the length of time for the New York State exam, only the general definition.

 

Subordination Clause – Permits one mortgage to be placed ahead of another. (ie: If you take a second mortgage on your home, and become insolvent or bankrupt, your second mortgage becomes subordinate – (secondary lien holder to your first mortgage).  Therefore, the first mortgage must be paid with any proceeds from liquidation before the second mortgage.

 

Sunday – All notarial acts may be performed on Sunday except taking a deposition in a civil proceeding. (Civil proceedings do not take place on Sunday).

 

Swear – Every mode authorized by law for administering an oath.

 

Taking an Acknowledgment – The notaries part in asking “was this document freely signed and for the purposes stated and in the document?” and obtaining satisfactory ID.

The constituent acknowledging that they are named in the instrument, executed the instrument, and know what the instrument is and why they are signing it.  Remember a constituent needs to know and understand the logistics of the document they are bringing to you to have notarized.  It is NEVER your job to explain anything about the document to a constituent!  This will only lend itself out to liability on your part.  For example, a constituent could say, "the only REASON why I signed this document was because of the way the Notary explained it to me".

 

Venue – The geographical place the notary takes an affidavit or acknowledgment.

            (State of New York )

            (County of _______)

The venue portion is to be completed by the Notary.  NOTE: If the venue is pre-filled, make sure the information is correct.  Remember: the venue can only read STATE OF NEW YORK and the county is based upon the geographical location the Notary is at the time they are Notarizing this document (ie: Suffolk, Nassau, New York, Bronx...).  If the venue is from out of State and reads anything other than New York you may make the change.  Please adhere to the specific rules in correcting any document for notarization: DRAW ONE LINE THROUGH THE INCORRECT WORDS, INITIAL, DATE AND WRITE THE CORRECT INFORMATION.

 

Will – The dispositions of one’s property to take effect after death. (Do Not Notarize).  A Notary may NEVER notarize a Will.  A Will may only be notarized by an Attorney.  Be careful because many bookstores and online providers sell "Will Kits".  You may know someone who drafts their own Will and asks you to Notarize it.  Please direct them to seek an Attorney for the execution of this instrument.  If you execute a Will, it voids the Will holding you liable for damages sustained.

 

Fee Schedule:  - Make sure you know this fee schedule for the exam.

 

Appointment and Commissioning Fee                 $60.00

($40 State $20 County) – Notary pays

 

Change of Name/Address/Duplicate Card           $10.00

Filing Certificate of Official Character

(Applying for a new commission # in

Another County) - Notary pays

 

Issuance of Certificate of Official Character          $5.00

(If a Seal is attached to above an

additional $5 fee applies) – Notary pays

 

Authentication Certificate                                        $3.00

(Fee to verify the Notary) – Paid by requestor

 

Protest of Note                                                             .75¢

 - Notary Collects

 

Additional Notice of Protest                                       .10¢

(Not to exceed 5) – Notary Collects

 

Oath or Affirmation                                               $ 2.00/person or act

Acknowledgment

Proof of Execution

Swearing Witness

-          Notary Collects