Sunday, February 14, 2016

Why Notaries Should Care About Apostilles

I've read many times that notaries don’t care about apostilles because they don’t issue them. That's true, but there is a good reason why notaries should care about apostilles.  When a notarized document is submitted for authentication, the notary’s certificate is scrutinized for errors.  

I’ve recently learned that Colorado’s Secretary of State receives 2,000 documents each month for authentication of notarial certificates that must be relied upon in another country.  Out of those 2,000 documents, 500 have defective notarizations! [1]  I'm not singling out Colorado.  It stands to reason other states have similar instances of errors.

The Notary Public Administrators’ Handbook on Apostilles and Authentications publishes a list of notarial and notarial certificate errors that will cause rejection of a request for an apostille and result in sanctions (penalties) for the notary who made the error.


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Causes for Rejection and Sanctions for Documents Submitted for an Apostille 

· Notary certifies as a true copy a vital record. Notably, the notary may execute a certificate on a statement attached to a document of this type. (Vital records are like birth certificates, death certificates, etc.) Although not mentioned, this would likely also apply to a document that has been recorded and bears a clerk’s file mark, and may apply to a document that is recordable like a deed or deed of trust. 

· No notary certificate, just a notary seal and signature on the document (likewise, no certificate, just a notary’s seal or just a notary’s signature on the document)

· No notary seal, just a certificate and notary’s signature

· No signature, just a certificate with a seal.

· Incomplete acknowledgment or other notarial act

· Notary completes an act that is not allowed by notarial law

· The date on the notarial certificate is prior to the date the signer signed the document.

· The expiration date of the seal reflects a commission that expired prior to the act

· The seal has an expiration date from a commission that has not yet begun

· The notary signature on the document does not appear to match the signature on file.

· The document contains a notarial certificate that contains the particulars of the notarial act but lacks the notary's signature.

· The document contains a completed notarial certificate, but the document has not been signed by the signing party.

· The document contains a certificate but has neither a signing party signature nor notary signature.

· The document contains only a notary seal (no notarial certificate and no notarial signature).

· The seal on the document does not match the seal for the commission in effect at the time of the notarization.

· The seal is not legible.

· No seal on document.

· The seal does not appear in its entirety on the notary certificate.

· The seal is not affixed in full on the notarial certificate, but fanned over multiple pages.

· The notarial certificate states that the attached is a true and correct copy. The notarization is properly executed, but no document is attached and there is no evidence that the notary attached a document to the certificate.

· The notarial certificate is in a language the competent authority cannot read / comprehend. (But, the notary may execute a certificate on a document where the notarization is in English, but the document is in another language.)

· The notary name listed on the seal or certificate does not exactly match the name on the record of the competent authority at the time of notarization.

· The notarial certificate includes language for an act that exceeds the authority of a notary public under state law. For example, "I certify that this is an accurate translation"; "The principal is a qualified CPA"; etc.

One problem that isn’t mentioned is a notarial certificate that has all the requirements but can’t be reproduced legibly when copied or scanned.  I know of at least one case in which the notary was sanctioned for this.

[1] Colorado Notary Public Training – page 10; collected on 2/13/16.

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