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Introduction

Directions: Simply download the course material, watch the video and afterwards click each link above from left to right beginning with "Introduction" and ending with "Review" for a thorough experience.

Title:    Notary Public Training Course

Course No: 207

Instructor: Dina DiRoma

URL: www.NotaryPublicCentral.Com

Course Type: Professional Development

Duration: 3 Hours approx.

 

Course Description:

The objective of the Notary Public training course is designed to educate individuals with the legal terminology, concepts and clauses contained in the framework of the NYS Notary booklet.  In addition, this course is designed to train seasoned notaries on proper notarial procedures that could cost the organization for incorrect/incomplete documents. 

 

Course Requirements:

Use of a highlighter is strongly recommended.

Students are expected to be focused, as this information can be very comprehensive.  Interest and enthusiasm will make this course an enlightening experience.  Students should have an educational desire to become knowledgeable with respect to your function and responsibilities as a Public Officer.

 

Course Prerequisites:

  • Must be a US Citizen and/or

    • Possess a permanent resident alien card

  • Me of good moral character

  • Have a common school education

  • Be thoroughly familiar with Notarial Laws

 

Course Materials:

Students must download & print a copy of the Course Materials.  Supplemental material included in the Course Materials is the New York State License Law Booklet (15 pages) that will be used in conjunction with this course.  You may download the latest version here: License Law Booklet

 
 
 

Course Outline:

 

Lesson 1:          What is a Notary Public?

                       

Lesson 2:          Notary Concepts

 

Lesson 3:          Definition review  -  Use of sample forms

 

Lesson 4:          In depth review of Law Subsections

 

Lesson 5:          Notary Fact Sheet

 

Lesson 6:          Notary Prep Test

 

Lesson 7:        Review

                        Exam Dates and Locations

                        General Rules Regarding the New York State Exam

                        Application and Oath of Office explained

 

Lesson 1:     What is a Notary Public?

 

What is a Notary Public?

 

A Notary Public is a person who is appointed by the Secretary of State to:

 

1. Administer oaths or affirmations (swear people in to the truthfulness contained in their statements or their documents)

2. Take acknowledgements

3.  Identify individuals who appear before you

4. Act as an impartial witness to the execution of instruments to certify that a document signer is not a fraud

5. Establish that agreements are entered into knowingly and freely.

                                                                                                                                                                                                                     

What are notarized documents used for?

 

Notarized documents may be introduced as evidence in a Court of Law and/or filed with a State/Gov’t/County/Village office.  Furthermore, notarized documents elicit proof that an individual was identified by the notary so as to prevent fraud.  Notaries certify to the identity of the signers who appear before them.  In essence, we act as the last person an individual would see before they commit a wrongdoing.

 

What type of documents are notarized?

 

Many types of documents in various industries require notarization (which we will study later in this course).  However, in order to effectuate a proper notarization the document must contain the following elements:

 

Venue:   STATE OF _______

              County of ________

 

In addition to a Certificate:

 

Acknowledged to before me appeared _____ on this ____ day of _____....

 

And/or a Jurat:

 

Sworn to before me appeared _____ on this ____ day of ______....

 

How do I Notarize a document?

 

As a Notary Public your responsibilities are to uphold the law in every respect.  Being extremely vigilant and cautious will help you maintain a long prosperous career as a Notary.

 

Some important concepts to keep in mind when notarizing:

 

1.      Verify every document signer that appears before you by reviewing their identification and scrutinizing the following:

a.      Photo

b.      Physical description

c.      Signature

d.      Expiration date (ID must not be expired)

 

Acceptable identification may only be issued by a State or Government agency.  The following are forms of acceptable ID: US Drivers/Non-Drivers License; a License issued from Canada, Mexico or any US territory (Puerto Rico, Guam, Virgin Islands and US Samoa).  You may not make photocopies of identification.  Rather, it is strongly recommended that you journalize this information.  (Discussed in more detail in the next sections)

 

2.   Be sure that no blank spaces are contained within the document, which could be fraudulently filled after notarization.  You may not make photocopies of the documents (journalize instead).  Nor are you responsible to read a document in its entirety.  You are responsible to peruse the document noting what type of document it is (Affidavit or Acknowledgement – discussed later) by reviewing the certificates contained on the document.  If blank spaces exist, you may respectfully decline notarizing until the signer has properly completed the document.  When explaining this to the signer, be careful not to offer opinions as to what information should appear.  Your only job is to suggest the document is incomplete and needs to be fully completed before you may execute it.  Giving opinions, advice or drafting documents is prohibited.

 

Ensure the competency level of your document signer.  This can be done by asking a few basic questions such as, “How are you today”?  “Do you know what it is that you are signing today”?  “Do you fully understand the information contained in the document”?  If your document signer cannot give you a straight answer, seems unaware, on mind altering medication or seems to be coerced into signing, you may respectfully decline.  Remember never to give advice or opinions about the information contained in the document.  In cases where a document signer seems to be under duress/forced by another individual, you may report it to the proper authorities.

 

Administer an Oath (if Affidavit) or Acknowledgement (if Acknowledgment) to the document signer (discussed later).

 

What happens if I notarized a fraudulent document & had no idea?

 

A notary is not responsible for the accuracy or legitimacy of the documents that they notarize.  We are impartial witnesses who certify as to the identity of individuals appearing before us.  The document signer is responsible for the statements and content prepared on the documents and will be charged accordingly if it is discovered that the document is false/fraudulent.  It is for this reason that we are not permitted to draft, advice, or have any involvement with documents we are notarizing.

 

Do I need a record journal?

 

Although not required for New York State Notaries, I strongly encourage all of you to journalize the; who, what, where and when of what you are notarizing.  This journal can serve as proof of appearance if you are ever summoned to appear at court to testify about a past signer.  If you choose to use a journal, remember no one is permitted to view it (not even past notarial clients).  The only time a journal may be reviewed is by Court Order (Subpoena).

 

Lesson 2:      Concepts

 

Most of what the New York State book covers essentially underlies the following five (5) principals.  Memorizing these principals will impact the way you view the exam questions on test day. 

  • 1.      No Interest (Conflict of Interest)

  • 2.      Never act as an Attorney

  • 3.      Prior Knowledge

  • 4.      Never Draft Legal Documents

  • 5.      Never Interpret a Document

  • 6.     Personal appearance is always required at the time of notarization!

 

Concepts in Review

 

1. You must NOT have any interest in what you are notarizing.  It would be considered a conflict of interest: (This rule does not apply to Attorney’s that notarize for their clients).  A notary must remain an impartial witness, which means they absolutely have no interest in the documents they are notarizing.  Interest can take one of several forms:

 

a. You cannot be named in the document

b. You’re not receiving a beneficial interest (advantage, gain, privilege…)

c. You’re not receiving a financial interest (monetary reward)

d. You do not have an emotional interest (something that may cause you to influence the signing – ie: executing a “Power of Attorney” for a relative).  Although there is no state law prohibiting you from notarizing for relatives or family members, it would be in your best interest not to execute documents where any of the above restrictions are violated.  These issues may be challenged in a court of law, particularly by other family members, wherein they may prevail victorious.

 

2. Do not give any advice about the documents you notarize.  This would be an involvement hence; you wouldn’t be considered an impartial witness.  In addition, the document signer could say that the only reason why they signed the document was due to the notary’s explanation of the document.   You must not offer your opinion about the document you are notarizing.  This would only lead to legal ramifications for the notary. 

 

3. If you have a prior knowledge that a document or its signer is fraudulent than you will be held liable.  However, if you have no knowledge about the document because you had nothing to do with it (in terms of drafting or advising) and no knowledge that a document signer may hold a fraudulent ID than you have nothing to worry about. 

Most people who appear before you will be complete strangers and therefore you will not have any prior knowledge issue.  Prior knowledge issues usually occur when a notary does a “favor” for a friend, co-worker or relative.  Some examples include: (allowing someone to sign with a name other than the name the signer typically uses, drafting a legal document for someone, backdating notary certificates, performing a notarization when the document signer is not in your physical appearance…).  Poor practices such as these would cause a notary legal sanctions, fines, penalties and revocation of their commission.   

 

4. Over the years you may find that you become extremely familiar with notarial instruments (ie: bill of sale, escrow agreements…).  However, never fall into the trap of drafting these documents for individuals in need of them.  The only time it is permissible for a notary to draft legal documents is when they are acting within the scope of their employment.  For example: if you work in the legal department at your place of business and it is essential to your job function that you draft legal instruments.  However, if your neighbor asks you to draft him/her a medical release you will decline.

 

5. Never interpret a document for a signer.  If a signer does not know the “what” (is this?) or the “why” (am I signing it?) you are not notarizing it. 

 

If someone speaks a foreign language and you cannot communicate directly with them, you cannot notarize for them.  You cannot accept a third party translator.  You must be able to communicate with the document signer directly.  In the case of a non-English speaking signer/document the signer would need to seek a bilingual notary.   

 

6. Your constituent must be in your presence at the time of notarization.

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

 
 
 

Subsections

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

 

Notaries are considered Local & State Public Officers and must adhere to the laws pertaining to their office.  Must act impartially, take reasonable care, and avoid a lawsuit: take every precaution expected of a person with ordinary prudence and intelligence.

 

Professional Conduct (p.5)

  • Signer and ID must always be present at the time of Notarization

  • Signer must be competent and aware

  • Legal entities (i.e.: Corporations and partnerships) cannot take an oath. 

  • An individual/officer of the corporation/partnership may take an oath when their relationship to the organization is clearly stated within the document.

  • Only permitted to advertise  the words: “Notary Public”

  • Administer Oath or Affirmation if an Affidavit is being presented (fee $2.00)

 

Affidavits carry penalties of Perjury

 

Oath (Verbal/Oral)

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

 

If a person refuses to take an oath administer an affirmation

 

Affirmation

“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.

 

  • Forms of acceptable ID Must contain: 1. Photo 2. Signature 3.Physical Description 4. Expiration Date

  • Acceptable ID refers to those issued by a State/Gov’t agency only; the following is a partial list:

  • US, Canada or Mexico Driver’s/Non-Driver’s License

  • Driver’s/Non-Driver’s License issued from any US Territory: (Puerto Rico, Guam, Virgin Island, US Samoa)

  • US Military ID

  • INS Card *USCIS Card (green card) – (*formerly INS) – now U.S. Citizenship and Immigration Services (USCIS)

  • US Passport

  • Foreign Passport (only if stamped by US INS Official)

  • Most US Professional Licenses (ie: Pistol License)

  • Sign by Mark “X” signature

  • Permanent Resident Card

 

Alternative to ID Card

 

  • Personal Acquaintance (known to the Notary for several years)

 

Identifying a signer with improper ID:

 

            Use of a credible witness: Rules: Must be personally known to both the signer and notary.  Both signer and credible witness take oath and sign the document.  Credible witness may not be a party to or have an interest in the document.  [Fact #’s 23 & 24]

 

            Alternatively; Identifying an absentee signer:

 

            Use of a subscribing witness:  Rules: Signer signed document in the company of said subscribing witness.  Subscribing witness brings document to Notary, takes an Oath, Signs document and produces their place of residence on the document. Subscribing witness may not be a party to or have an interest in the document. [Fact #44]

 

Non-Compliance with the above rules = serious professional misconduct commission revocation

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

            Prohibited Practices of Non-Attorney Notaries

Never engage in the practice of the law directly or indirectly by doing any of the following:

 

  • The drafting and/or advisement of legal documents

  • The solicitation and or referral of any lawyer with whom your do business with or where receiving monetary compensation for doing so

  • Dividing or agreeing to accept any part of a lawyers fee on any legal business

 

 

Executive Law §130 (p.5)

  • Secretary of State appoints &/or revokes the commissions  of Notaries Public

  • Your Notary Public Office is valid and may be used within the boundaries of NYS only

  • The Secretary of State is appointed a Non-Resident Notaries’ official Process Server

  • Non-Resident notaries are assigned to the County Clerk’s office where their place of business is situated

 

Qualifications for Holding Office

 

  • US Citizen

  • Good Moral Character

  • Common School Education (6TH Grade)

  • Pass Examination

  • Be a NYS resident; or if Non-Resident, maintain a place of business within NYS.

  • A Non-Resident Notary who does not maintain a place of business in NYS vacates/forfeits their commission

  • Must be 18 years of age

 

Automatic Qualifying Individuals (No Exam Required):

  •     Attorney admitted to practice law in NYS

  •     Appointed Court Clerk’s of the Unified Court System that passed the Civil Service Promotional Exam.

 

Notarial Term & Renewal

 

  • 4 Year Term

  • Fee $60 (Divided as follows: $40 Secretary of State $20 County Clerk)

  • Must renew within 30 days of expiration – max extension = 6 month of expiration or notary must re-take the exam

  • Notaries seeking re-appointment must submit their applications to the County Clerk , NOT the Department of State (renewal applications are sent out by the County Clerk within 90 days prior to the Notary’s expiration of term)

  • No exam or surety bond is required for re-appointment

  • Military personnel receive 1 year extension (only after honorable discharge)

  • Thumbprints are required for all applicants at the time of the Notary examination

  • The Month (MM) and Day (DD) of a Notarial term will remain the same throughout (Only the year changes)

 

Secretary of State

 

  • The Secretary of State is the ONLY governing body that can remove a Notary Public from office, if they’re found guilty of charges against them

  • A Notary Public has the right and opportunity to be Heard regarding such charges 

 

Rejection of Application by the Secretary of State

 

  • Conviction of a felony or certain other crimes, including:  carrying or possessing a firearm or other dangerous weapon, making or possessing burglar’s instruments, buying or receiving stolen property, unlawful entry of a building, aiding escape from prison, drug-related offenses and vagrancy or prostitution; (Executive Law, §130)

  • Removal from office as a commissioner of deeds for the city of New York; (Executive Law, §140)

  • Violation of the Selective Draft Act of 1917 (Public Officers Law, §3)

  • Also includes violating subsections of Notary Laws

  • May not be a as they are barred from holding another public office, they may not be commissioned as a Notary Public (Art. XIII, §13[a] of the Constitution of the State of New York).

 

Acts to overturn an Application for Appointment Rejection after a prior conviction or Felony

  1.       Executive Pardon

  2.      Certificate of Relief from Disabilities

  3.      Certificate of Good Conduct

 

Official Allowable Notarial Acts

           

Notaries may perform the following official acts:

 

  • Acknowledgements, certifying that a signer personally appeared before the Notary, was identified by the notary and freely acknowledged the signing of the document;

  • Depositions, certifying that the spoken words of a witness were accurately taken down in writing, though this act is most often done by skilled court reporters;

  • Jurats, as found in affidavits and other sworn documents, certifying that the signer personally appeared before the Notary, took an oath or affirmation from the Notary and,  signed in the Notary’s presence.

  • Oaths and Affirmations, which are solemn promises to God (oath) or solemn promises on one’s own personal honor (affirmation).

  • Proof of Execution, certifying that a subscribing witness personally appeared and swore to the Notary that another person, the principal signed a document and affixed their address to the instrument.

  • Protests, certifying that a written promise to pay, such as a bill of exchange, was not honored.

  • Safe Deposit Box Openings by a bank must be witnessed by Notaries.

  • Swear – the act of swearing  an individual to a document or into office

 

Unauthorized  Notarial Acts

 

  • Never perform marriages

  • Never notarize a corporation – only an individual

  • Never Certify Copies of documents.  Requests for certified copies of documents should be directed to the agency that holds and/or issued the original, such as the county clerk’s office.  The document owner, not the Notary certifies the copy. The custodian makes a photocopy of the original document; makes a written statement about the trueness, correctness and completeness of the copy; signs that statement before a Notary; and takes an oath or affirmation regarding the truth of the statement

  • A Notary must never notarized their own signature or where their interest is involved

  • Notarizations – including acknowledgments and jurats – performed over the telephone are absolutely forbidden

  • Never perform Will or Codicil notarizations

  • Never act as attorney or give any legal advice

  • Never receive money for making court appearances

  • Cannot form Articles of Incorporation

  • Never create false documents

 

 

 

§131 Procedure for Appointment & Fees (p.6)

 

  • Pass Test

  • Submit Notarized Application to Secretary of State with $60 fee

  • Secretary of State will Index your commission, keep $40 of the $60 and sends certified copy of your info and $20 to County Clerk by 10th day of the following month

  • Secretary of State will mail you a Notary Public ID Card

  • County Clerk receives $20 of the $60 and makes an index of your official commission

 

    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 (same as above just reverse order)

    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.

 

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

  2.  

  3. 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.

  4. 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 (p. 6) [Fact #46]

  • You may obtain another commission number for any other NYS County.  No reason to do this.  Your commission is good in any County within NYS. (old law). Cost $10 for certificate issuance $10 filing fee and $5 if Seal attached.

  • These fees are payable each time your commission is renewed and must accompany your application.

  • Additionally, this information must also be included on your stamp

    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 (AKA Authentication Notarial – Definitions) (p. 6)

  • County clerk certifying that your signature is authentic/genuine and you are/were a commissioned Notary Public for NYS at the time you notarized a specific document.  (signature of said document is matched against clerk’s file) Cost $3 paid by requestor

Purpose:

This Certification allows for said notarized document to be introduced/read into evidence in a court of law or recorded in any county either within or out of State. 

 

Executive Law (p. 7)

§134 Signature and seal of county clerk

  • A County Clerk may stamp, print, photograph, engrave or fax a document confirming the authenticity of a Notary Public when issuing a “Certificate of Official Character” or a “Certificate of Authentication” (when documents will be used outside NYS – needed prior to obtaining an Apostille).

Note: Notary’s cannot notarize faxed, photocopy or triplicate signature ONLY ORIGINAL INK SIGNATURE.

 Executive Law §140

  • If a Commissioner of Deeds is removed from his/her Office by the Secretary of State, they may not sign or execute any instrument in the capacity as a Commissioner of Deeds nor a Notary Public, otherwise guilty of a Misdemeanor.

 

Election Law §3-200 and 3-400

  • A Commissioner or Inspector of Elections may hold 2 Public Offices (ie: Notary and Commissioner of Elections = 2 Public Offices).

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

 

Public Officers Law

§3 Qualifications for Holding Office

Acts that will prohibit one from becoming a Notary Public:

 

  •             A Military Violation

  •             Convicted of Violating the U.S. Selective Draft Act

  •             Convicted of Violating the Federal Selective Training and Service Act

 

 

§534 County Clerk; appointment of notaries public

 

  • One County Clerk member is required to offer their Notarial services to the public free of charge during normal business hours. 

  • This staff member is “Fee Exempt” from Exam ($15) and Application fee ($60) (§131 Executive Law)

 

Miscellaneous

 

Members of the Legislature

 

  • A Legislator may be a Notary, hence hold 2 public offices.

  • If a Legislator is appointed to any civil office in NYS, thereby vacating their seat as legislator they would additionally resign their Notary Public commission

  • However, if such appointment be w/o monetary compensation, they may retain their Notary Public Office.

 

NOTE: Only legislator, commissioner of election & inspector of elect may hold two public offices simultaneously.

 

Sheriffs

 

  • May not be a Notary (Can’t hold 2 public offices simultaneously)

 

Notary public disqualifications

 

  • A Notary disqualifies themselves from Notarizing documents where they have any type of Interest in the transaction/document (directly - pecuniary or otherwise):

 

            A Notary Public is prohibited from notarizing a document where:

 

  • They are named in document

  • A party to the Instrument

  • Beneficial – receiving a benefit

  • Emotional – emotional involvement (family member)

  • Financial – monetary reward

 

Do not participate in the notarization of documents where you may have any type of interest and therefore cannot be an impartial witness:

 

  • Beneficial Interest. - The interest of a beneficiary, tangible or intangible, gain or advantage.  Your motives could be questioned if you receive a benefit later.  Special interest in influencing the signer. (i.e.: you or family member benefits)

 

  • Financial Interest. – Of monetary reward or value.  (It would not be considered financial interest. If you had no prior knowledge i.e.: bonus)

 

  • Emotional Interest. - something that would cause you to influence the signing (i.e.: 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”

 

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

 

§135 Powers and duties; in general; of notaries public who are attorneys at law: (p. 8)

 

This passage discusses what both Notaries and Attorney Notaries are empowered to do. Same functions with the following exceptions:

 

  • Attorney’s are Exam Exempt (they qualify after passing the BAR Exam)

  • Attorney may notarize for their client with respect to claims, actions or proceedings (Conflict of Interest)

  • An Attorney may, at their discretion, substitute the words “Attorney and Counselor at Law” for the words “Notary Public.” (§137. Statement as to authority of notaries public)

 

Functions of a Notary and Attorney:

 

  •       Administer oaths and affirmations

  •     Take affidavits and depositions

  •     Receive Acknowledgments

  •     Certify Acknowledgments, proof of deeds, mortgages, and powers of attorney

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

  •     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 your seal free of charge.

      

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

Note - written warning with the intent  to inform a person of a hearing or trial in which his/her interest is involved.       

 

Misconduct

 

  • Notaries are liable when they commit a wrongdoing (ie: overcharging)

 

135-a Notary Public or Commissioner of deeds; acting without appointment; fraud in office: (p.8)

 

  • Don’t assume use or advertise your title as a Notary Public or Commissioner of Deeds unless you’re officially appointed (ie: When you receive your Notary Public ID Card)

  • Once appointed don’t practice

      FRAUD = Misdemeanor

(Intentional deception resulting in injury to another -- misrepresentation, concealment or non-disclosure of a material fact and misleading conduct or

      DECEIT = Misdemeanor

(A false representation of a material fact made recklessly, or without reasonable ground for believing its truth and with intent to induce reliance thereon)

 

  • NY Notaries have unlimited financial liabilities for any and all damages caused by their mistakes or misconduct in performing Notarial acts.  If a person is financially injured by a Notary’s negligence or failure to properly perform a Notarial act whether intentional or unintentional, the injured party may sue the Notary in civil court and the Notary, possibly, may be ordered to pay all resulting damages, including attorney’s fees. (Executive Law, §135).

 

 

§135-b. Advertising by notaries public

(This section does NOT apply to Attorney’s)

  •  A Notary Public who advertises in ANY language OTHER than ENGLISH must include in their advertisement the following statement: “I am not an attorney licensed to practice law and may not give legal advice about immigration or any other legal matter or accept fees for legal advice.”

  • May not use any terms or convey in a foreign language anything that would imply in your advertisement that you are an Attorney for the State of New York  or any US Jurisdiction

 

§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

  • A Notary is entitled to collect $2.00/signature and $.75 for protest $.10 each additional not to exceed 5

  • All other fees in the schedule relate to what someone OTHER than the Notary are entitled to for services noted:

  • $3 to County Clerk to Verify your signature

  • $20 to County Clerk to Index your Commission

  • $40 to Secretary of State to Index your Commission

  • $10 Lost, Duplicate Card, Change of Address

 

 

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

 

§137 Statement as to authority of Notaries Public

 

  • The following information should appear on a document when properly Notarized:

  • Venue Properly filled (State of New York; County of _____)

  • Notaries Signature

 

The following information would be affixed to a notarized document via rubber stamp or handwritten in black ink.

 

  • Permanent black ink handwritten or stamped the following five lines:

  • Your Name

  • Notary Public State of New York

  • Commission #:

  • Qualified in ___ County

  • Date Commission Expires 

 

  • A notary public who has qualified and filed a certificate of official character in an additional county, must also affix to each notarizing instrument their second official number and County in black ink.[Fact #46]

 

Note: The signature and stamp of a Notary should always appear below that of it’s constituent.  The Venue refers to the Geographical location of the Notary Public and their constituent upon execution of the document.  Lastly, a challenge to the legitimacy of a Notarial certificate (signature and stamp), is held as circumstantial evidence, provided that 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.9)

 

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)

 

§290 Definitions; effect of article:

 

  • Conveyance as covered in the definition section, includes all instruments (except a Will) pertaining to the transferring (buying, selling, inheritance or gifting) of property and title/ownership thereof.

 

  • 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 in execution of power, although the power be one of revocation only, and an instrument postponing or subordinating a mortgage lien; except a will, a lease for a term not exceeding three years, an executor contract for  the sale or purchase of lands, and an instrument containing a power to convey real property a the agent for the owner of such property.

 

Types of Real Property Instruments include: postponement or subordination of a mortgage lien, lease less than or equal to three years, 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

 

  • Discusses WHOM can take an Acknowledgement in a Real Estate Transaction and WHERE they can be filed:

 

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:

  1. Judge or clerk of any court

  2. Commissioner of deeds

  3. Mayor or recorder of a city

  4. Surrogate or special county judge

  5. County clerk or other recording officer

 

3. WHOM (Village Residents)

  1. Justice of the peace

  2. Town councilman

  3. Village police justice

  4. Judge of any court

 

  • For an acknowledgment, the document does not have to be signed in the Notary’s presence; however, the signer must appear before the Notary at the time of notarization to acknowledge having signed the document.

 

  • A document could have been signed a hour before, a week before, a year before, etc. – as long as the signer makes personal appearance before the Notary with the signed document at the time of notarization to admit that the signature is his or her own. (However, for a jurat notarization, requiring an oath, the document usually must be signed in the presence of a Notary.

 

  • A Notary takes or executes an acknowledgment while a signer makes or gives an acknowledgment.

 

§302 Acknowledgment and proofs by married woman:

      

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 acknowledgements

 

                  Satisfactorily identify your constituent

                  Personal Acquaintance (known to the Notary for several years)

                  Use of Identification

                  Use of a Credible Witness

                  Use of a Subscribing Witness

 

 

§304 Proof by subscribing witness (p.10) [Fact #44]

 

      In the absence of the actual document Signer, the Subscribing Witness presents a document before a Notary Public to wit they have previously witnessed the signature of the document signer. Proof must not be taken unless the officer is personally acquainted with such witness, or has satisfactory evidence that he is the same person, who was a subscribing witness to the conveyance.

 

      Such subscribing witness MUST:

  •       Sign

  •       Take an Oath

  •       Produce their place of residence on the document

  •       Not have an interest

 

Note: Notary should be personally acquainted with or satisfied with evidence provided by such an individual appropriate for the transaction in question.

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

 

      This is a specific Certificate attached to a Real Estate transaction signed by a Notary Public stating:

      Name & address of persons who appeared before them

      Testimony of witnesses (if any)

      Proof that Identification was taken

 

  [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)

 

      When a Notary interferes with any Real Estate documents, (give advice, explain or otherwise frauduleuze) you are committing malfeasance, which holds you liable for damages to the injured party.

 

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

 

      Any instrument in the Conveyance of Real Property to be filed in NY State requires that it be written in the English language.  Therefore, foreign language documents (with the exception of a proper name within the document written in English letters) are prohibited and will be dishonored for recording purposes.

           

Foreign Language Translation Filing Acceptance (As it relates to this Real Property Law section only)

 

            Unless accompanied by and attached thereto a translation in the English language duly executed and acknowledged by the person making such conveyance and proved and authenticated, in the manner required of conveyances for recording in this state

 

or

 

            Unless accompanied by and attached thereto a translation in the English language made by a person duly designated for such purpose, by the county judge or a justice of the supreme court - and be duly signed, acknowledged and certified under oath or upon affirmation by such person before such judge, to be a true and accurate translation and contain a certification of the designation of such person by such judge of the county where it is desired to record such conveyance

 

Special Notes (Updates) :

 

The need for a Certificate of Authentication of a County Clerk as a prerequisite to the recording or introducing into evidence has been abolished. The certificate of authentication may possibly be required where the instrument is to be recorded or used in evidence outside the jurisdiction of the New York State

 

Effective September 23, 2012, recording officers (County Clerks) may receive and record digitized paper documents and electronic records affecting real property, (ie: deeds, mortgages, notes and accompanying documents).  Rules are instituted and overseen by the Office of Information Technology Services (ITS)

           

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.

 

§335 Banking Law (p.11) [Fact #47]

 

Deals with what a Notaries responsibility is with respect to the opening of a Safe Deposit Box due to lessees’ non-payment of rent

      If rent is not paid in 1 year bank has the right to open box

      With 30 day prior written notice to lessee and no response Bank opens Box on the 30th day with Notary present

      Notary inventories each item removed from Box and Bank Officer signs off (signature notarized)

      Bank must send notice of itemized list of content to lessee  within 10 days of opening

      Bank must send notice to lessee showing contents removed (inventory) within 10 days of opening

      Bank holds contents for 2 years and rent continues to be billed for safekeeping

      After 2 years bank holds Public Auction of inventory to cover fees

      After 3 years remaining property becomes Abandoned Property (turned over to the Government)

      Articles of paper value (ie: deeds, wills, stock certificates) must be held by bank for 10 years before they are destroyed.

 

 

Rule 3113 Civil Practice Law and Rules

      This law authorizes a deposition to be taken before a Notary Public in a civil proceeding

 

§11 Domestic Relations Law

      A Notary may not Solemnize Marriages (Marry People) or take Acknowledgments of parties and/or witnesses to a Marriage contract in N.Y. State

 

§10 Public Officers Law

      This law authorizes a Notary to administer an Oath to a Public Officer (ie: swear in the Mayor)

 

    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.11)

 

§484. None but attorneys to practice in the state

 

      A Notary should never act as Attorney

      A Notary shall not Act nor Collect a fee for acting in any legal capacity including:

                  Court Appearances

                  Preparing Legal Documents

 

Compensation may only be collected by the following person(s):

 

      Attorneys

      Officers of the Societies for the prevention of cruelty (animals and/or people)

      Law students & graduates

 

 

§485 Violations of certain preceding sections a misdemeanor

 

      Violating sections §478-§484 guilty of a misdemeanor

 

 

§750 Powers of courts to punish for criminal contempt

 

      Practicing  or assuming to practice law by a Notary is punishable by the Supreme Court, District Attorney or Bar Association with a proceeding for a  Motion of Criminal Contempt

 

Illegal practice of the law by notary public

 

      Counsel & Advise

      Drafting legal documents/agreements/wills

      Organization of Corporations and the preparation of its papers

 

 

 

 

Heading 1

Wills (p. 12)

 

      A Notary may never draft nor execute a will – Nullifies and Voids

      In NYS, a self proving Will may require the signatures of the witnesses to be notarized. A Notary should notarize signatures of the witnesses on a document described as a will only if a Notarial certificate is provided or stipulated for each signer and the signers are not asking questions about how to proceed.

      The New York State Department of State warns Notaries not to execute an acknowledgement certificate when asked to notarize a will: “Such acknowledgement cannot be deemed equivalent to an attestation clause accompanying a will.” (The attestation clause is the statement at the end of the will wherein the witnesses certify that the document was executed before them (NPLL, “Professional Conduct,” “Restrictions and Violations”)

 

 

 

Public Officers Law

 

            Notary must not act before taking and filing oath of office

 

      You must file your oath before acting as a Notary, otherwise consequence = Misdemeanor

      An oath accompanying your official application must be taken and filed with the Department of State within two years of the exam date. (Executive Law, §131).


§67 Fees of public officers

 

      Notary is governed by the laws under which they’re appointed and as such may only charge a fee designated by those laws

      Never charge in excess of the lawful Notarial fee $2.00/signature

      Never collect payment prior to performing a Notarial service

                  However, an Attorney may charge a retainer fee

      If these laws are violated a Notary may be sanctioned with monetary penalties, civil law suits, criminal prosecution, possible removal from office  and treble damages (3x’s a jury  verdict)

 

 

§69 Fee for administering certain official oaths prohibited

 

      A Notary may never charge a fee to another public official/employee/officer

      Hence a Notary shall never be charged to have something notarized

 

The following is a partial list of public officers/ public employees:

 

      Legislator

      Military Officer

      Inspector of Elections

      Clerk of the Poll 

 

Executive Law (p. 12)

 

       Misconduct by a notary and removal from office

 

      A Notary in the practice of Fraud or Deceit in performing their duty may be charged with a Misdemeanor & possible removal from office

 

            The following  acts constitute a misconduct:

 

  •             Misstatement of fact on your application for appointment

  •             Preparing and taking an oath of an affiant to a statements the Notary Public knew to be false or fraudulent (prior knowledge issue)

 

Penal Law

 

            §70.00 Sentence of imprisonment for felony

 

      Unclassified term = 3 years

      Classified “D” Felony = 7 years

      Classified “E” Felony = 4 years

 

§70.15 Sentences of imprisonment for misdemeanors and violations

      

Classified “A” Misdemeanor = 1 year

 

§170.10 Forgery in the second degree

 

      When a Notary intentionally alters, falsifies, creates  or has an affect (such as the transferring, terminating, legal right, interest, obligation or status) of any written instrument which represents a legal document, commercial paper, public record (including those to be filed in or with a public office or servant) or official instrument created by a public office, servant or government. (ie: creating a false deed)

      

Constitutes Class D felony = 7 years

 

§175.40 Issuing a false certificate

 

      When a Public Servant – (an officer authorized by law to make such official instruments) intentionally issues the instrument knowing that it contains false information. (ie: issuing a false birth certificate by someone who works for that agency) – prior knowledge

      

Constitutes Class E felony = 4 years

   

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

 

      When a Public Servant – (an officer authorized by law to serve the public) knowingly receives a benefit at the detriment of another by:

      

Knowingly performing an unauthorized act in the performance of their duty (ie: backdating a Notary Certificate)

      

Knowingly refraining from performing a service which is clearly inherent in the nature of their office (ie: refusing to Notarize).

      Official misconduct = Class A misdemeanor = 1 Year

 

Notary must officiate on request The Penal Law (§195.00)

 

      A Notary must perform a Notarization when requested (so long as it’s proper)

      Refusal = misdemeanor = Class A = 1 Year

 

Perjury (p. 13)

 

      When one willfully gives a false statement or testimony under Oath or Affirmation they are charged with Perjury

 

  1.     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.

 

Notary Facts

Notary Fact Sheet

 

1.         Sign in permanent ink, Stamper must be in black ink

 

2.         Notaries must comply with and are governed by the laws of the State within and when not acting in a Notarial capacity.  Your societal actions are respectfully held in high regard. 

 

3.         Must sign name exactly as it appears on appointment/commission “oath of office”.

 

4.         Never ask for or receive a greater fee than prescribed by law (see book)

 

5.         No selective customers.  Notaries should provide notary service to customers, clients and the general public evenhandedly.

 

6.         Thoroughly verify constituent’s identification, signature and expiration

 

7.         Verify working of acknowledgment certificate or Jurat to see representative status of signer (i.e.: if person is signing as corporate officer, partner or individual - make sure the document stipulates same); and your function as a notary (i.e.: administer an oath…)

 

8.         Only an individual can take an oath not a legal entity. (I.e.: Corporation or partnership).

 

9.         Check for competency of signer (ask name/add/conversation about TV), and the names, dates, spelling is current and correct on the document.

 

10.       Certified Copies – “When the authenticity of the signature is in question, it must be (attested) notarized.”  When the authenticity of the document is in question, it must be certified.” 

 

Requests for certified copies of documents should be directed to the agency that holds and/or issued the original, such as the county clerk’s office.  The document owner, not the Notary certifies the copy. The custodian makes a photocopy of the original document; makes a written statement about the trueness, correctness and completeness of the copy; signs that statement before a Notary; and takes an oath or affirmation regarding the truth of the statement

 

            You may not issue certified copies of  public records and/or public recordable instruments (i.e.: deeds [county clerk] birth/death certificates [Bureau  of vital statistics]). Can’t issue “certified copies” otherwise lends itself to counterfeit and/or deception.  Original personal papers (non-public records)  (i.e.: college diploma) may contain a notarial certificate that an attached copy of a paper is a true and exact copy of the original document (only if you (the Notary) made the copy from the original or witnessed the photocopy process).  Alternatively, you can have the affiant stipulate same by affidavit.  This is known as an Attested Copy.

 

            BEWARE of the following: Certified Copy Certificate Language – ie:  “I…., a notary public of the State of New York…. do hereby certify and declare that I verily believe the annexed instrument to be genuine in every respect……or… I verily believe this to be a true and exact copy of the original…. (If you see certificate wording that conforms to the wording in the above certificate, know that you should refuse notarization because you cannot certify as to the authenticity of any instrument without being the official original instrument issuer/holder.  This will hold you liable).

 

 

11.       Do not notarize photocopied signatures, only original.

 

12.       Never draw up legal documents unless acting within the scope of your employment.

 

13.       Do not notarize a Will or Codicil - attestation clause.

 

  1. Never take an acknowledgment/affidavit of a document in which blank spaces are left.  Either have constituent write N/A or cross out blank spaces. 

 

  1. Never notarize a blank piece of paper.  Have constituent obtain the proper notarial certificate for a document.  No loose certificates. Make sure notarial certificate is attached to the document and contains a reference to the document if it falls on its own page.

 

  1. Notaries cannot take acknowledgment of parties or serve as witness to a marriage.

 

  1. Do not notarize document unless it’s written in English. (Court. Appointed Translators).  If a written translation is not required and you are fluent you may notarize only if notarial certificates are written in English.  Never use a 3rd party translator or interpreter.

 

  1. Do not to notarize for a family member(s)/spouse if you are directly or indirectly a party to that instrument by way of:

 

A. Beneficial Interest. - motives could be questioned if you receive a benefit later.  Special interest in influencing a signer. (i.e.: notarizing your mother’s deed when the house will be left to you at some point in the future.)

 

B. Financial Interest. - monetary reward/value.  It is not considered a financial interest if you had no prior knowledge & boss gives you a bonus after notarizing a document that brought him/her $. (i.e.: receiving part of the settlement proceeds from the document you are notarizing for your brother-in-law)

 

C. Emotional Interest. - something that would cause you to influence the signer.  (Overseeing the signing of a Power of Attorney whereby your grandmother is giving your mother the power to act on her behalf).

 

  1. Instances where you MUST decline from Notarizing:

 

  • Affiant appears to be under Duress

  • Affiant has no sufficient identification and a credible witness cannot be produced.

  • Affiant is mentally disabled (comprehension is impaired)

  • Affiant is under anesthesia

  • Affiant does not appear to be competent or aware of what he/she is signing and/or why he/she is signing it

  • Affiant presents an affidavit and refuses to take an oath or an affirmation

  • Identification appears to be tampered or fraudulent

  • If a refusal was made, make sure you duly note same in a record book

 

 

  1. Do not participate in any solicitations, advertisement or promotion, where having notarized a signature the document will be used for promotional use or as a contest.

 

  1. Keep your stamp and seal in a safe place (under lock and key).

 

 

22. Physically disabled persons - Signing by an “X”

 

It is recommended that you (the Notary) handwrite the affiant’s first and last name like so:

 

First name           “X”                 and Last Name 

                        His/Her Mark

 

on the signature line, check spelling and have the affiant mark “X” between the first and last name as illustrated in addition to adding the words “His/Her Mark” beneath the mark (X) signature line.  Having two independent witnesses appear at the time the document is executed increases reliability of the mark.

 

23. Using a Credible Witness

 

Used when an affiant does not have sufficient identification (i.e.: expired, lost, stolen id).  It is recommended that two credible witnesses are used, however one is sufficient.  The credible witness should be personally known to the Affiant and the Notary.

 

Notary administers an oath or affirmation to the witness “Do you solemnly swear/affirm that you personally know that this individual is (name of person) and that he/she is the person named in the document requiring notarization, so help you God?” Witness should follow with “yes” or “I do”, print his/her name and sign the document as a witness like such:

 

_____________

Affiant

 

________________

Witness (print name)

 

 

_____________

Notary

 

 

 

  1. Oaths for a Credible Witness:

 

“Do you solemnly swear that (person making the acknowledgment or oath) is the person named in the document; that (person making the acknowledgment or oath) is personally known to you; that it is your reasonable belief that the circumstances of (person making acknowledgment or oath) are such that it would be very difficult or impossible for him to obtain another form of id; that (person making the acknowledgment or oath) does not possess any of the acceptable identification documents; and that you do not have a financial interest nor are you named in the document, so help you God?”

 

 

25.  

Using a Loose Certificate or Where a Signature and Notarization appears on a separate page from the actual document (multiple-page document).

 

Write on the bottom of the first document “page 1 of 2”; “acknowledgment or Jurat certificate attached” Also, on the Acknowledgement/Jurat page make a notation as to the title of page of origin (i.e.: This is page 2 of 2 entitled “Lien Settlement State v. Combs”)

 

  1. Acknowledgment – “Do you acknowledge that this is your signature and that you understand and willfully signed this document?” or “Do you acknowledge that you signed this foregoing instrument freely and for the purposes stated in the document?”

 

Notary certifies the act on the notarial certificate (verifying that the act took place)

 

“Do you acknowledge that this is your signature, and that you signed this document willingly, for the purposes stated therein?”

 

27.Alternative Oath’s and Affirmations

 

Oath –“Do you solemnly swear under the penalties of perjury that the statements contained in this affidavit are true, so help you God?”

 

Affirmation – “Do you solemnly and sincerely affirm under the penalties of perjury that the statements contained are true?”

 

28.Oath for a Subscribing Witness

 

“Do you solemnly swear that you saw (name of document signer) sign his/her name to this document and/or that he acknowledged to you having executed it for the purposes therein stated so help you God?”

 

  1. Electronic Signatures: NOT YET APPROVED FOR NY STATE –Will not appear as an exam question.

 

Notarizing electronic signatures is prohibited if no physical appearance is involved.  However, the E-SIGN Act stipulates that notaries employed by specific entities involved in interstate or international commerce may notarize electronic signatures by following NY State Laws with respect to notarizing (i.e.: personal appearance required, appropriately affixing a computerized signature and typed notarial stamp).

 

  1. Jurisdiction:

 

New York State = New York, Brooklyn, Bronx, Staten Island Queens, Nassau & Suffolk… Generally, every borough, district or county in New York, anywhere in the State of New York

 

 

  1. Be aware of fraudulent identification:

 

Different font styles, different signatures, discoloration of the card, brand-new-card with old issue date, misspelled words, two or more forms of identification with exact photos, an illogical birth date, raised photo, unlawful laminated card.

 

 

  1. Notarizing a Photograph Prohibited:

 

A notary may not notarize or certify as to the authenticity of a photograph.  A notary may notarize the signature of an affiant’s affidavit with respect to facts about the photograph, but not the photograph itself.

 

  1. Forms of ID:

 

  • Driver’s and Non-Drivers License – US, Canada, Mexico & US Territory

  • U.S. Passport (currently Dark Blue w/Gold Foil)

  • Foreign passport validated by US I.N.S.

  • Driver’s license issued in Mexico or Canada

  • U.S. Military ID Card

  • INS Card (Green Card) – (currently light pink)

  • Professional License (firearm - cosmetology)

 

            Issued by a State or Gov’t agency, contain a photo, physical description, signature and serial or ID # and Not Expired).

 

  1. Three Ways to Identify

 

  • Personal knowledge (known for several years)

  • Sworn word of a personally known 3rd party (credible witness)

  • Reliable ID

 

  1. Documents should contain a current date near the signature line of the affiant.  If not, ask him/her to date them.

 

  1. When resigning your notary commission due to (expiration, at will, death or revocation) it is important to completely destroy your Stamper and Seal, so that upon disposal, it can not be used by another.

 

  1. Making Corrections on the Notarial Certificate

 

A notary may only make changes to a notarial certificate he/she has filled out incorrectly by lining through the mistake with ink, writing correction above or beside, initialing and dating correction.

 

  1. Witness or Notarize NOT BOTH

 

You may be a witness to a document signing, but you may not notarize the document for which you are witnessing.  If you want to perform a notarial function, than you may not be a witness to the document for which you are notarizing.  You may do either, but not both with respect to the same document.

 

  1. You may not notarize a photograph.  You may notarize an affidavit or some type of certificate by the affiant regarding a particular photograph, but not the photograph itself.

 

  1. Times to Decline

  2. When you are not sure of your responsibility with respect to a certain document (i.e.: no venue or certificate wording contained on the document).

  3. Duress

  4. Incompetent

  5. Refusal of oath and affirmation by the document signer (affidavit)

 

  1. You may not notarize an object (ie.: photo, design, drawing), event or endorsement (promotion).

 

  1. Legal age to enter into a contract is 18 years (unless emancipated minor).