Sunday, August 21, 2016

Potential Notary Hazards in Affidavits

I wrote this article for a former client who rejected it saying it was "too complicated" for notaries to understand and they would not read it because there is too much "lawyer stuff" in it.

What??  That's nuts!  I don't agree with that at all!  This article is fundamental and all notaries I know will be interested.  They sure don't need it to be simplified.   Let me know what you think, please!

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Affidavits are Low Hanging Fruit!!

Potential Notary Hazards in Affidavits

The practice of attacking the construction of affidavits has been a popular strategy for over 100 years and is frequently used to unravel binding agreements and to dissolve financial or personal obligations.

Affidavits are powerful documents that impact the lives of their signers and financial decisions of business owners.  Notarial certificates associated with affidavits are low-hanging fruit when a lawyer seeks ways to nullify a notarized document for a client that has buyer’s remorse or has been charged with a crime.

Today’s article will alert you of potential hazards that the improper notarization of an affidavit can cause. 

Descriptions of Affidavits and their Importance 

  • Affidavits are written sworn statements that include certification in the form of a notarial certificate that includes a notary’s official signature and/or seal of office.

  • Business transactions, legal matters, and trial procedures routinely require written testimony of an involved party. When sworn written testimony is a requirement in a transaction, the law generally says states that an affidavit is required and many states’ laws describe a form of affidavit that must be used.  

  • It’s critical to recognize that affidavits differ from general sworn statements or notarized statements.  State laws and the purpose intended for an affidavit determine which formal elements must be included on an affidavit.   Be on alert when you see the formal elements described below!  It’s likely the document has been crafted carefully to withstand the test of a trial court, if necessary.

Elements of Affidavits

The person making an affidavit is known as the “affiant.” Affidavits that are part of a court case may state court information at the top of the form. Formal affidavits often have titles. Some simply say “Affidavit” while others name the person who is making the affidavit (i.e., Affidavit of John Doe) or may describe the affidavit’s function as shown in this Affidavit for Change of Trustee

Underneath the title, an affidavit may display a venue statement that provides the state and county where Affiant John Doe is giving his sworn statement to a notary public.  When you see a venue statement in this position on a document, that’s a clue that your notarial duties are about to begin!  Alert:  Ensure the venue is stated correctly.

You may see a notary’s formal statement next with words like: “Before me, the undersigned authority, on this day personally appeared John Doe, affiant herein, who, after being duly sworn, stated and deposed the following:” or there may be less formal language stated as in this affidavit. Alert: Make sure if a date is noted in this area, it is accurate. Alert: If you make corrections in your statement, initial them.

After the notary’s statement, an affiant begins to give testimony, describing him- or herself and the qualifications allowing him to make the affidavit.  “My name is John Doe.  My address is …I am of sound mind and over 18 years old…these statements are true.” 

In some states, the words “penalty of perjury” or another form of strong language regarding the affiant’s statements being truthful may be used.  Normally, these statements are followed by the affiant’s testimony that will usually be contained between quotation marks followed by the affiant’s name and signature line, and possibly a date of the affiant’s signature. Alert: If the affiant has to change anything regarding his or her testimony in the affidavit, the affiant should initial it. 

Make YOUR Notarial Certificates Attack Proof!

You will be completing a jurat, often called an “oath certificate” or a “verification upon fact.” Make sure that your certificates are error free and not vulnerable to legal attack by following this procedure when you notarize affidavits.

1.     As always, you must first identify the affiant.
2.     Ensure that all blanks are filled in on the affidavit, and if not, determine who should complete the information. If the blank is in the notary’s statement at the beginning of the affidavit, the notary should complete the information.  If the blank is in the affiant’s part of the text, the affiant should complete the blank. 
3.     Compare the jurat language to that required by the notary’s state and either conform the language in the certificate or attach a loose jurat with the correct language.
4.     Make sure that the jurat is dated and all dates relating to the notarial act and the date of the signer’s appearance before the notary are correct. (Notaries may not execute false certificates.)
5.     Be certain that the name of the affiant is spelled correctly on the jurat and is printed legibly.
6.     Require that that the signer swear or affirm that the statements in the affidavit are true.  
7.     After administering an oath or affirmation, the notary must observe the signer sign the affidavit.  If the affidavit is already signed, the affiant should ask the receiving party if the document should be resigned, or if a fresh copy of the affidavit should be used. 
8.     Complete the jurat legibly with accurate information.
9.     Sign the jurat and print the notary’s official name and commission expiration date under his or her signature.
10.  Place the notarial seal on the certificate in the presence of the affiant so that no text is covered and the seal is not in the one-inch margin of white space on the document.

In the Case of a Conflicting Certificate…

On rare occasions, you may see a certificate of acknowledgment (rather than a jurat) attached to an affidavit.

This presents a conflict between the certificate and the affidavit’s language that says the affiant swore to or affirmed his or her statements. At least one state, Florida, has a law that indicates clearly that a notary must complete an jurat when an oath is required.  However, other states’ notary laws aren’t as clear.

I polled several notaries and have compiled their solutions below. (Note: Don’t hesitate to consult an attorney or your notary public administrator for guidance on this problem if you encounter it.)

1-    Some notaries complete the acknowledgment certificate without additional comment, but notably, this is one of the primary reasons affidavits are attacked easily in lawsuits.  According to one source entitled “Attacking Affidavits", “The mere signing of a statement in the presence of a notary, or a notary’s placement of an ‘acknowledgment’ on a statement, does not constitute a sworn statement or affidavit.” 

2-    Some notaries explain to the affiant that the attached acknowledgment certificate conflicts with the act the notary is required to perform because the affidavit must be sworn. They show the affiant an example of a jurat and let the affiant decide if the certificate should be replaced.

3-    A few said they explain the problem and offer to attach a loose jurat and complete both the acknowledgment certificate and the jurat certificate at no additional charge. By doing this, they have executed the duties required by the affidavit but didn’t disturb the document’s original certificate if intentionally placed there by an attorney. 

4-    Some notaries say they replace the acknowledgment with a jurat without explanation.

Keep in mind that it’s always an option to decline the notarial act and explain to the affiant that the notarial certificate conflicts with the act you are required to perform and suggest that the affiant consult with the attorney who prepared the affidavit, the receiving party, or another attorney of the affiant’s choice.

Attacking Affidavits (an article, 2014)

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