Friday, September 23, 2016

Pull the Plug on Bad Clients - "Smart Money Says I'd be Better off Without You."


Do you think that Ariana Grande and Iggy Azalea were notaries once upon a time?

Their song "Problem" makes it sound like they've had a few bad clients!

"Smart Money Says I'd be Better off Without You."

They tell it like we should be telling bad clients!

..............................





Bad notary clients cause stress!  


They will make you feel stupid for putting up with their late payments, belittling remarks about how they will penalize you, in how they disregard your schedule...their demands, admonishments, and tantrums.


  • Pull the plug on bad clients.  
  • Send them to voice mail.
  • Write them a letter letting them know you are done.
  • Or...send 'em a link to hear it for themselves.  


"I've Got One Less Problem Without You!"


Listen to it on Amazon




It's on YouTube - Ads Aren't Mine!



Wednesday, September 21, 2016

Finally Back after the Great Tech Attack of 2016

On September 2, 2016, I was about to publish an article that was planned to be one of my best -- it disappointingly turned out to be gobbledygook.  Only today have I had the ability to use a personal computer and clean it up a little bit.




Logging happens in the Event Viewer.
Just as I started drafting the article I was distracted by a blink of my computer; I checked my logs and noticed something odd.

My computer logging had been stopped and there were 25 users on a computer that I am the sole user of (and these weren't system users either--they had names).

I realized (to my temporary horror) that all three of my computers were behaving like they had been invaded by a trojan virus.  It was a ridiculous and expensive nightmare for me, but not really as bad as it could have been.



I have always used good virus protection but the infection came around it.  (I was using Windows Defender on two, plus Malware Bytes. On the other computer, I was using Sophos and Malware Bytes.  I have since changed my strategy.)

I determined quite a bit from the investigation into my computers' history, files and other things, like the date that the invasion took over, for instance.  It was interesting. That's all I'm going to say about it.

In the middle of that, I also learned that both of my cell phones and my new tablet were affected, including my new Note 7 (which, of course, had to be replaced).

Lessons from My Hacking

It's good to be an honest person without anything TOO weird or Illegal on my computer!!

Be careful--even with people you trust. 
There are a couple of wack-jobs in your life, even if you don't realize it right this minute.  It's so easy to infect a PDF or use other methods to infect a computer.

Don't let other people use your computer without setting up a guest account that won't allow changes to the computer.

Back everything up in two places.
Be aware that backups can also be infected, so when you start adding files back to your computer, make sure they are clean.

Cover the camera on your laptops, especially those in your bedroom.  Fortunately for me, the camera that went live in my bedroom and took pictures was pointed at the floor or wall.

Start over.  Don't even try to clean it up. 
When this happens, get an expert on the problem.   As "How to Geek" describes it:  Nuke it!!   Have the expert wipe it and do a clean install of windows.  I personally had all partitions removed that held the back-up that could be used to reset my computer because even after it was wiped, the infection remained in those partitions.




Be sure to keep your logs ON and check them regularly.
You can learn how to open the logging mechanism (the event viewer) here.

Finally,  when you find out you have been hacked or attacked and you are using Windows 10 before the attack, you can download it onto your clean hard drive via this link.  It will recognize your computer unless you have changed out the mother board.

Carbonite and Dropbox saved me!






Material for Your Notary Reference Shelf

In case you missed it, here's an excerpt from "Part II - Affidavits are Like Spoiled Brats - They Need a Lot of Attention!"


Please make time to read "Attacking Affidavits!"  Texas notaries might enjoy the Texas case laws, too.
  • Attacking Affidavits, an article by Christopher M. Kelly and Laura G. Simons is anassociate with Gallivan, White & Boyd, PA in Greenville, South Carolina is one of the most pmost frequently cited sources on the topic of affidavit problems that you'll find. 

  • Texas Government Code Sec. 312.011  - This section of Texas law defines an affidavit as (1) a statement in writing of a fact or facts, (2) signed by the party making it, (3) sworn to before an officer authorized to administer oaths, and (4) officially certified to by the officer under his seal of office.

  • Case law - For many years affidavits have been targeted as low-hanging fruit because of the sloppy handling of certificates on affidavits. Please review this article on the Potential Notary Hazards in Affidavits . It's a great reminder of how important it is to handle affidavits properly. 
  • Texas Civil Practice and Remedies Code Sec. 132.001 may not be relevant at all, but just for the sake of discussing unsworn declarations, I want to mention it.  This section says that an unsworn declaration may be used in place of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law.  So, could that mean the signer doesn’t have to swear to the facts in the affidavit? I don’t think that’s the point because Sec. 132.001 also says that if property is involved or an affidavit is required by law for a situation, there must be evidence of an oath sworn before an officer authorized to take such oath. (Notably, unsworn declarations also can’t be used for an oath of office.)

  • An opinion of Attorney General Jim Maddox, No. JM-883, that says “It takes the jurat to make the instrument an affidavit.” The same opinion also discusses the possibility of attaching both a jurat and acknowledgment to the same document. 

Issuing a Subpoena vs. Serving a Subpoena (Texas Notaries: It's not the same.)


7/10/17 - UPDATE -- POSSIBLE ERROR

Please read - RECENTLY, I WAS ADVISED BY A NOTARY/PRIVATE INVESTIGATOR (WHO IS ALSO PROCESS SERVER) THAT SERVING SUBPOENAS ISN'T THE SAME AS SERVING PROCESS.

My understanding from my days of hiring process servers to serve subpoenas is that courts liked to control that issue (as well as process) and did so with an order  authorizing various process servers on a court case by court case basis and that the order was kept in the file of the case.  

I just want to let readers know that the P.I. referenced above said subpoenas are not serving process.   Attorney feedback welcome. 

----
Frequently, notaries in Texas add value to their services by serving process, which is  the act of delivering a document to a person that will compel him or her to interact with the court system or appear for a deposition.

We've all heard of  being "served with divorce papers," or hearing something like "Mary was served with a subpoena, today."  and "John was served with a temporary restraining order."    In other words, someone was given a set of papers.

Purpose of this Article


Today's article is not to examine the meaning of serving process, but rather to make sure that notaries understand that there's a difference between the phrases "issuing subpoenas" and "serving subpoenas."  (If you'd like to learn more about the legal definition of "serving process" or "service of process," you may want to start your quest by doing a search for the word "process" in the Texas Rules of Civil Procedure.)

Yes, Texas notaries can issue subpoenas!


Notaries in Texas are provided the authority to "issue subpoenas" under Section 121.003 of the Texas Civil Practices and Remedies Code.  The authority of issuing subpoenas should be exercised carefully and only with the oversight of a paralegal or attorney.

Here is an example of how this authority is used:  The medical community has often balked at being served with subpoenas issued by a notary public that states a clerk of medical records must appear and give a deposition or that a doctor or other medical treatment provider must produce medical records in a court case.  Because of this,  the Texas Medical Association has stated:

"The Texas Rules of Civil Procedure allow subpoenas ordering persons to appear at depositions to be issued by an attorney authorized to practice in the state of Texas, certified shorthand reporters or "any officer authorized to take depositions" - which includes Notary Publics [sic] (Texas Rules of Civil Procedure, In other words, a subpoena may be valid even if it is issued by someone other than a judge or court clerk. "
Hopefully, it is easier now to see that the acts of "issuing a subpoena" and "serving a subpoena" aren't the same thing.

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Courts decide who can serve subpoenas.


Within the last few years, it has become a requirement of many courts in Texas (probably most of them) that process be served by certified process servers who have been certified by the Texas Supreme Court.  However, the website that explains process server requirements for Texas also states:
"Under Rule 103 of the Texas Rules of Civil Procedure, process may be served by any person "authorized by law or by written order of the court who is not less than eighteen years of age." Thus, a trial court may elect to continue its current practice of authorizing service of process. Check with your local court if you are uncertain."  (Underlining added by author)

Clear as mud?  


If the underlined information above doesn't make sense, you probably need to look into this much deeper before you agree to serve process.

On the other hand, if you are a certified or seasoned process server, you will know what your local courts require and you know how to call and get questions answered if you are unsure.

Don't serve papers if you aren't qualified.


It's my understanding from working in the legal system that there are two ways to be qualified to serve process. One is to take a course approved by the Texas Supreme Court, and the other is to be authorized by a judge's signature in a single court case by what's commonly referred to as a "Rule 103 Order."  (My guess is that is what the underlined sentence above means.  Certain courts may want to hand approve each process server for a court case.)

If neither of those ways to become qualified means anything to you, take a class before serving process.

How to get certified as a process server...


I had served process before the Texas Supreme Court required certification for its courtrooms; a judge signed off for me in each court case.   There are many assignments that are simple and you can call ahead to let the person you are serving know you are on the way.   It's easy and it pays better than mobile notary work, but there is an investment involved of time and money.

I plan to get my certification soon.

In a few weeks, I hope to pursue my certification through  Texas Process Servers' Academy who is trying to get the initial training online approved even as I write this.   I received a letter from the owner last week that he was nearing his goal of having the first online course to educate process servers.  Many sites offer the renewal course online, but  Texas Process Servers' Academy hopes soon to be able to offer a great experience for first time approval at your online convenience.  


As soon as I hear that this the online class is up, I'll let you know!


Have a great week!

Brenda


Friday, September 2, 2016

Part II - Affidavits are Like Spoiled Brats - They Need a Lot of Attention!



[Note:  when I first drafted this article, all kinds of things went wrong and it stood here in a mess...gobbledygook.   Just now getting things cleaned up! Read about my Tech Attack here.]

Hello!  

This is Part II of a lengthy article about affidavits, and more importantly, about handling the certificate if the wrong one has been installed. 


QUESTION FOR DISCUSSION:  
What if you are presented with an affidavit that has a certificate of acknowledgment attached to it rather than a jurat?

By definition, affidavits are sworn statements.

So...if an affidavit is a sworn statement, you just complete a jurat and administer an oath or affirmation. Easy, right?

Right!  Sworn statements require the notary to complete a jurat.


Here's where the problem starts! Affidavits become a point of confusion when a notary is presented with one that is attached to a certificate of acknowledgment.

The preamble says the signer swears to the statements.

An affidavit should have a preamble that says “BEFORE ME, the undersigned authority, on this day personally appeared NAME OF SIGNER/AFFIANT who swore or affirmed to tell the truth and stated as follows…”

It is commonly considered to be a violation of law to notarize a document that the notary knows to be false. Some say that completing a certificate of acknowledgment rather than a jurat would make the document false.

I agree.

Also, many court cases have decided that not having a jurat attached to the affidavit invalidates the document and causes a landslide of problems.  The sources I have listed below (and there are countless others!) makes the case that an affidavit requires a jurat -- there's  no doubt that a certificate of acknowledgment isn’t sufficient for a notary’s performance of his or her duties (administering and oath) in the case of an affidavit.



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void Potential Notary Hazards in Affidavits


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Material for Your Notary Reference Shelf 

Please make time to read "Attacking Affidavits!"  Texas notaries might enjoy the Texas case laws, too.
  • Attacking Affidavits, an article by Christopher M. Kelly and Laura G. Simons is anassociate with Gallivan, White & Boyd, PA in Greenville, South Carolina is one of the most pmost frequently cited sources on the topic of affidavit problems that you'll find. 

  • Texas Government Code Sec. 312.011  - This section of Texas law defines an affidavit as (1) a statement in writing of a fact or facts, (2) signed by the party making it, (3) sworn to before an officer authorized to administer oaths, and (4) officially certified to by the officer under his seal of office.

  • Case law - For many years affidavits have been targeted as low-hanging fruit because of the sloppy handling of certificates on affidavits. Please review this article on the Potential Notary Hazards in Affidavits . It's a great reminder of how important it is to handle affidavits properly. 

  • Texas Civil Practice and Remedies Code Sec. 132.001 may not be relevant at all, but just for the sake of discussing unsworn declarations, I want to mention it.  This section says that an unsworn declaration may be used in place of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law.  So, could that mean the signer doesn’t have to swear to the facts in the affidavit? I don’t think that’s the point because Sec. 132.001 also says that if property is involved or an affidavit is required by law for a situation, there must be evidence of an oath sworn before an officer authorized to take such oath. (Notably, unsworn declarations also can’t be used for an oath of office.)

  • An opinion of Attorney General Jim Maddox, No. JM-883, that says “It takes the jurat to make the instrument an affidavit.” The same opinion also discusses the possibility of attaching both a jurat and acknowledgment to the same document. 

Notaries Should Never Play Lawyer at Home or on TV!

Some notaries disagree with me about this.  I say that notaries can't play lawyer and make decisions about which certificate goes on a document.  I don't undo what a lawyer has done.

Many notaries mark out the acknowledgment and attach a jurat.

I don’t; I won’t presume that the document drafter (who may have been an attorney) is wrong.  I won’t substitute a jurat in place of the certificate of acknowledgment.

I do believe, however, that notaries are well within their lawful duties to attach a proper certificate.

Therefore, when I receive the very infrequent affidavit that has an acknowledgment certificate attached to it, I explain the dilemma to the signer and offer the options of contacting an attorney and asking for advice, seeking the services of another notary, or explaining that I can attach a jurat to the document and complete both certificates.

To Summarize:  I perform two notarial acts. 
I leave the original certificate intact and complete it and complete the jurat. Many notaries have said that they make sure that any newly certificate has words at the top or bottom (but certainly not at the edge of the page inside the one-inch margin) to identify the document it is attached to.

“Attached to acknowledged affidavit of Name of Person; dated 1/1/11, and having four pages including this certificate.”

There are several reasons that I feel comfortable with adding a second certificate.  

For instance,

I know of no law forbidding two certificates.

For years in Texas (up until 2009, that I know of) affidavits designating homestead or non-homestead property that were drafted by real estate law attorneys and presented for recording by the clerk had both a certificate of acknowledgment and a jurat attached to them.  The logic for this was because acknowledgments were required up until 1989 on recorded documents while the jurat memorialized the affiant’s oath or affirmation.  Some attorneys and clerks just couldn’t get used to only including a jurat on a recorded document.

I don’t charge an additional fee for adding the jurat or administering an oath in addition to taking an acknowledgment.  

You need to study this situation for yourself and talk to an attorney about it or consult another credible source. I am not advising you to add a jurat in the case described above.

You have my thoughts on this topic now.

What are yours?  I’d love to know what you think.

Please write me at Brenda@TexasNotaryProfessionals.com.  Questions are encouraged!

Disclaimer  
Please keep in mind that I’m not an attorney and that all information in this book is about how I handle situations.  This is not legal advice.

Part I - Affidavits Are Like Bratty Children. They need a lot of attention!

This is Part I of a two-part series on affidavits.


Not everyone appreciates the bad press that poorly constructed affidavits and jurats get.

They are the train wrecks of notarized documents.  There should be a reality show about them, plus all the notaries who cause them to be invalid because they fail to administer an oath.  


 I enjoy a good train wreck. 

On Sunday afternoons I often read legal cases and journal articles looking for good content for my blog or information that notaries need.

 Typing invalid" or "fraudulent" plus "affidavit" is guaranteed to be a fruitful search when I am browsing LexisNexis or digitized law journals.

There is always a bit of gossip waiting to be extracted because where there's a bad affidavit, there will be notaries and lawyers involved.

Affidavits Can be Bad Actors (Some of the worst!)


Think of affidavits like spoiled brats who play with matches and start fires if you take your eyes off of them. You can't miss any detail.

Watch them carefully.

Affidavits are the darlings of lawyers who like snagging the easy-to-grab low-hanging fruit that bad affidavits provide.

Lawyers use affidavits to overturn settlements and if an affidavit is provided in response to a Motion for Summary Judgment, watch out.  The affidavit is going down if it isn't perfect.

Next,  a Little Myth Busting:  Affidavits are Not Notarial Certificates 


Affidavits are notarized documents.

Many times notaries (and even notary instructors) are confused. They believe that affidavits are notarial acts just like completing a certificate of acknowledgment is a notarial act.

Affidavits are just documents that signers sign stating that they are swearing to their statements in the document. Notaries should never create affidavits for signers and they should not provide forms to customers with affidavit wording.

Affidavits aren't merely wordy notarial certificates.  Affidavit forms at an office supply store I frequented in the past didn't have a line for the signer.  I can't believe they haven't been sued.

Perhaps because affidavits have fancy words in a "preamble" at the top of the document and a  venue statement at the top as well, many people are confused and think that means the whole document is a notarial certificate.


Roger Rill of the Ohio Notary Society, here's your shout out!


Roger (who is a long-time friend and founder of the Ohio Notary Society) backed me into a corner on this topic in October 2015 about a comment I made on Facebook--it was about affidavits.  I was managing a Facebook page for a client and in an article, I had not provided a clear instruction to notaries that they must ensure that jurats were used when notarizing affidavits, not certificates of acknowledgments.

Roger and I agreed in theory about affidavits requiring the notary's execution of a jurat, but for understandable reasons, neither the client I worked for nor many notary public administrators will state unequivocally that notaries should always replace certificates of acknowledgement with jurats if the certificate is attached to an affidavit.


By definition, affidavits are 

sworn statements.

If an affidavit is a sworn statement, you just complete a jurat and administer an oath or affirmation.

Easy, right?


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