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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Coming soon:  an e-book that will help you realize why your duties are so important and how to go step-by-step to
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.

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