NC Notary Public Chapter 5 PDF

Chapter 5 — Notarization Explained in Eight Simple Steps A notary public is an officer of the State of North Carolina. The signature and seal of a notary public, properly affixed to a certificate, represents that the notary executed the notarial act in compliance with North Carolina law. The notaria...

Chapter 5 — Notarization Explained in Eight Simple Steps A notary public is an officer of the State of North Carolina. The signature and seal of a notary public, properly affixed to a certificate, represents that the notary executed the notarial act in compliance with North Carolina law. The notarial act and the steps to accomplish it are designed, in part, to enhance interstate recognition of notarial acts performed in North Carolina. Because of the importance of the notarial act, the notary seal is the personal property of the notary and may never be used by anyone else. In fact, the law stipulates that the notary seal must be kept in a secure location and that an employer must surrender the seal to the notary upon termination of employment, regardless of who purchased the seal. G.S. 10B-36(a). While the notarial act is not highly complex, there is certainly more involved with the process than simply “stamping and signing.” There are no fewer than eight steps that must be taken to execute a proper notarization. Depending on the type of notarization, the circumstances surrounding the identification of the principal signer(s), and the implementation of notarial best practices, there can be as many as nine steps to performing a proper notarization. Step 1. Require the Personal Appearance of the Principal Signer(s) of the Document Personal appearance of the principal signer is required for any notarial act. This simply means that when the notary act occurs, the person requesting the notarization must appear before the notary with the document or record. G.S. 10B-20(c)(1) states that a notary may not perform a notarial act if the principal or subscribing witness is not in the presence of the notary. A notary found guilty of performing a notarial act without requiring personal appearance may be charged with a Class 1 misdemeanor, G.S. 10B-60(c), or with a Class I felony if it is found that the notary intended to commit fraud. G.S. 10B-60(d). Step 2. Positively Identify the Principal Signer(s) of the Document Each person requesting a notarization must be positively identified through either personal knowledge or satisfactory evidence of identity. In order to rely on personal knowledge, the notary must be certain of a person’s identity. The statute defines personal knowledge as “familiarity with an individual resulting from interactions with that individual over a period of time sufficient to eliminate every reasonable doubt that the individual has the identity claimed.” G.S. 10B-3(17). A classic example would be two individuals who grew up together in the same neighborhood and had close interactions throughout the years as they attended the same school and the same place of worship for most of their lives. If a notary has the slightest doubt about whether a signer is personally known, he or she must rely on another form of identification, referred to in the Notary Act as “satisfactory evidence.” Satisfactory evidence is defined as a current state or federally issued identification (ID) card with a photograph and a physical description or signature. Identification cards issued by recognized state tribal agencies that meet these specifications are also acceptable. The most common forms of identification are state driver’s licenses, passports, and older military ID cards. The most recently issued military ID cards may generally not be used as “satisfactory evidence” of identity because the signature and physical description are embedded in a computer chip not visible to the naked eye. If a signer is not personally known to the notary and does not possess an acceptable form of identification, there is another option. A mutual friend of the signer and the notary may act as a credible witness to confirm the identity of the signer. The mutual friend must be personally known to the notary; deemed by the notary to be honest, reliable, and impartial; and not a party to or a beneficiary of the transaction. G.S. 10B-3(5). Note that there is an additional step that must be followed for the credible witness (see the discussion below under “Additional Steps”). Given the high incidence of identity theft, mortgage fraud, and various other crimes in which imposters wreak havoc on society and on individual lives, it is critical for notaries to take their responsibility of positively identifying every document signer very seriously. Notaries are prohibited from notarizing for a signer who has not been positively identified. Failure to comply with this mandate can result in a notary’s commission being suspended or revoked. G.S. 10B-20(c)(2); G.S. 10B-60(a), (c). Step 3. Verify the Signature on the Document The act of notarization centers around the signature of the principal signer(s). After all, it is the signature to which the notary is attesting. The document may or may not be signed in the presence of the notary when he or she is performing an acknowledgment. If the document has already been signed, the signer must indicate or acknowledge to the notary that he or she signed the document and did so willingly. G.S. 10B-3(1). If an oath or affirmation is the notarial act being performed, the signer must always sign the document in the presence of the notary. This is because the jurat wording associated with an oath or affirmation states that the document was signed and sworn to before the notary. If the document has already been signed, the signer will need to sign it again before the notary so that the notary can make a proper attestation. Failure to have the signing occur in the presence of the notary is official misconduct for which the notary could be sanctioned. In no circumstance may a notary perform a notarial act if there is no signature on the record. A mark can be a signature, as described in Chapter 7. G.S. 10B-20(d). Step 4. Take the Acknowledgment or Administer the Oath or Af rmation fi The most common types of notarial acts are acknowledgments and oaths, which have two distinct functions. When a notary is executing an acknowledgment, it is the principal signer who must acknowledge to the notary that the signature is indeed his or hers. If the document was signed previously, the notary must ask the signer of the record to acknowledge that the signature is his or hers and that the document was signed willingly. G.S. 10B-40(a1). Documents that are signed in the notary’s presence do not require such discourse because the notary’s firsthand account of the signing is a tacit acknowledgment and needs no further confirmation. When a notary is administering an oath or affirmation, the notary must literally and physically administer the oath or affirmation. An oath is typically administered by having the signer raise his or her right hand toward the heavens, place his or her left hand on a holy book, and swear before God that the statements in the document are true and correct to the best of his or her knowledge. G.S. 10B-43. An affirmation is the legal equivalent of an oath and is given in the same manner, albeit without any reference to a supreme being or use of the word “swear.” The typical wording is, “Do you affirm that the statements in this document are true?” A response in the affirmative is sufficient for the notary to complete the attestation. When a notary is administering either an oath or an affirmation, the document being notarized must be signed in the presence of the notary. This requirement is dictated by the certificate wording for an oath or affirmation, which will state that the document was signed before the notary public. Step 5. Complete the Journal Entry G.S. 10B-2(1)(3) states that the Notary Act’s underlying purpose is “[t]o promote, serve and protect the public interest” and “[t]o prevent fraud and forgery.” Maintaining a notary journal is in keeping with the purpose of the notary law in that it: 1. Causes would-be criminals to think twice before presenting a forged signature to a notary knowing that they will be asked to leave proof of their request in the form of their signature in a journal. 2. Provides a level of protection for the notary in the event that a signer later tries to disown a signature by providing clear evidence in the form of the person’s signature that he or she did appear before a notary on a given date to request a notarization. 3. Provides valuable evidence to law enforcement o cials investigating allegations of notary misconduct and criminal activity related to many forms of document fraud. Given that the simple act of maintaining a notary journal is clearly in keeping with the stated purpose of the Notary Act, every notary should keep a chronological journal record of every notarial act to protect the notary, the public, and the integrity of the transaction. Typical journal entries include the date and time of the transaction, the name(s) and signature(s) of the principal signer(s), the type of identification used to positively identify the signer(s), the type of document notarized, and the type of notarization that was performed. Driver’s license numbers and Social Security numbers should not be recorded in a notary journal. ffi fi Step 6. Complete the Notarial Certi cate Language After taking the signer’s acknowledgment or administering an oath or affirmation, the notary must complete a notarial certificate attesting to the facts of the notarial act. In the case of an acknowledgment, the notary will complete a certificate that must contain the state and county where the notarial act took place, the name of the person whose signature is being acknowledged, the date of the acknowledgment, the legible appearance of the notary’s name typed or printed, and a statement indicating that the signer acknowledged his or her signature to the notary. G.S. 10B-20; G.S. 10B-40(b). For a jurat certificate that evidences the administration of an oath or affirmation, the notary will need to complete the certificate indicating that the signer signed in his or her presence and took either an oath or an affirmation swearing or affirming that the statements in the document are true. G.S. 10B-20; G.S. 10B-40(d). Like the acknowledgment certificate, this attestation will also include the county and state where the notarial act was performed. There are statutory notary certificates for each type of notarial act for North Carolina notaries to use. However, other certificates are not precluded as long as they include the required elements for the notarial act being performed. G.S. 10B-40(b) through (g). Step 7. Sign the Notarial Certi cate fi Once the notary has completed the attestation of the facts of the notarial act, he or she must sign the certificate with an ink pen in the exact name that is shown on the notary’s commission. G.S. 10B-35. The notary’s signature must be signed after the notarial act is performed and must appear on the document in close proximity to the notarial certificate language. There is a prohibition against a notary signing a notary certificate prior to the performance of a notarial act. In fact, it is an act of official misconduct for a notary to sign blank certificates prior to completing a notarial act. G.S. 10B-35. Step 8. Af x the Of cial Notary Seal One of the final steps to performing a proper notarial act is for the notary to affix an impression of the official notary seal. The impression of the official notary seal must be placed near the notary’s signature and on the same page as the notary certificate wording. The statute also stipulates that the seal can be affixed only after the notarial act has been performed. G.S. 10B-36(b). Therefore, in no event should a notary ever place his or her official notary seal on a document that has not been completely executed. Additional Steps fi fi If a credible witness is used to positively identify the principal signer, an additional oath must be administered to the credible witness by the notary. The notary must ask the credible witness to swear that he or she has no interest in the execution of the document and that the signer has the identity that he or she has claimed to the notary. No additional fee can be charged for administering an oath or affirmation to the credible witness above and beyond the fee charged for the actual notarial act.