![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
captainsblogI have many titles to choose from for when people remember me after I am gone. I do not intend to be buried in a fixed spot, but if that is disregarded, they will get to choose from quite a few for the stone:
Husband
Father
Brother
Attorney and Counselor
Mets Fan
Writer
and, way down on the list,
Notary.
Talk abour your side hustle.
In American legal practice, a "notary public" is a state-licensed ministerial job. That differs from some Latino-tradition nations where a "notario publico" is closer to an attorney's role in authority and status, and some US notaries have played and preyed on that in marketing to immigrants here. The two main jobs of a US notary are to identify signers of documents and to administer oaths to witnesses. If you pass the New York bar exam and get admitted to it, congratulations! You don't have to take the pesky little Department of State notary exam to get that additional certification; you just pay fees to the state and county and you can notarize your little heart out. Now, though, the job just got harder for all of us, and harder still for any of us brave enough to join the 21st century and try notarizing documents electronically.
Notarization is intended to be, and usually is, a defense against identity theft. It provides a somewhat reliable means of verifying that someone is who they say they are when they sign a deed, an affidavit or some other document with legal significance. In New York, up until this week, the notary's job was completely performed by affixing their signature and seal or stamp to a document. I now have three such self-inking stamps: my very first one showing my original commissioning in Monroe County (I cross out Monroe when I use it); the one I had made when I moved here and the commission location changed to Erie County; and a newish one from last year when some counties began requiring my state-issued "notary number" on all acknowledged documents.
What was notarized, you signed, and still do sign, in one of two forms. For recorded real estate and some other documents, it's an "acknowledgement," a statute-mandated paragraph pointing to the human signer of the document in whatever capacity said human was signing (their own behalf or on behalf a corporation or such):
STATE OF NEW YORK
COUNTY OF _________
On this _____ day of _________, before me personally came ________________, to me known and known to me to be the individual(s) described in and who executed the foregoing ________ and who duly acknowledge that he/she/they executed same.
____________________
Notary Public
On affidavits and similar legal quickies, it takes the simpler form of a "jurat," looking like this:
Sworn to before me this ___
day of _______, 20___
____________________
Notary Public
Other states vary the words and requirements; California, for one, requires a notary to attach one of the pages shown here to every document they deal with. All of these add a layer of truth, but none actually require the notary to attach what they used to determine that truth. Was it a photo ID? Testimony to them of another person? Just knowing them personally? We didn't have to say.
Now we do. But not on the document itself, which could lead to yet more identity theft, but in journals we are now required to create, record contemporaneously with the notarial acts (sounds kinky, no?), and then maintain for at least ten years.
Da ruulz are spelled out in Q&A format here. Though the link says it's about "remote notarization," there are specifics in there taking effect this very week that apply to traditional in-person transactions, as well:
Are notaries required to keep a journal?
Yes. Beginning January 25th, 2023, all notaries, including those notaries that only provide traditional in-person services, are required to keep a journal of all notarial acts performed which includes the type of identification provided, for 10 years. Additionally, electronic notaries must maintain a journal of all notarial acts as well as an audio & video record of all electronic notarial acts performed.
What information must be maintained in the journal?
“Traditional” notary journal must include:
(1) the date, approximate time, and type of notarial acts performed
(2) the name and address of any individuals for whom a notarial act was performed
(3) the number and type of notarial services provided
(4) the type of credential used to identify the principal, including, for verification made where a notary relies on the oath or affirmation of two witnesses who identify themselves with a valid government issued ID and who know the document signer personally, the names of the witnesses and, if applicable, the type of credential used; and
(5) the verification procedures used for any personal appearance before the notary public.
In summary: what used to take under 30 seconds to do will now likely take at least ten minutes. For my practice, it's probably of minimal intrusion, because most of my notarizations are of a single document and usually requiring just the shorter "sworn to before me" type. For the transactional attorneys I work near, though? They are passing around multiple copies of multiple documents with multiple signatories at a closing table. Does each document require a journal entry? Does each copy? Does each signatory? Make those ten minutes more like an hour added on to a closing if the answer is "yes" to all of those. And until some clarification arises, we will all assume that the answer IS "yes" to all of those.
Can we greedy lawyer types make any of that back by now charging extra for our extra work? Of course not. Before all this, the fee schedule read:
A notary public shall be entitled to the following fees:
1. For administering an oath or affirmation, and certifying the same when required, except where another fee is specifically prescribed by statute, $2.
2. For taking and certifying the acknowledgment or proof of execution of a written instrument, by one person, $2, and by each additional person, $2, for swearing such witness thereto, $2.
Those remain exactly where they were, but to these (not Nigerian) princely sums, they have now added the following, only for the electronic notary bit that is too complicated for me to even think about adding:
3. For electronic notarial services, established in section one hundred thirty-five-c of this chapter, a fee set through regulation by the secretary of state.
That's 25 bucks to start, but that only applies after you've applied for the separate licensing as an electronic notary (fees), and signed up with a provider to do it (fees), and taken continuing ed courses to learn the ropes (fees).
And I was told there would be no math.
----
Not that this won't come without benefit, if it works as intended. Spoiler alert: it won't. The big pots in fancypants lawfirms won't comply, the journals won't be made at all or will be lost or become unavailable when firms dissolve and people die. But maybe it would have helped in a situation a client of mine is in now:
Client wrote a good (for them) agreement and got a company and four individuals in it to sign off. In classic belt-and-suspenders practice, each of the four signatures was witnessed and notarized. Company went out of business and defaulted, I got it to sue. Only one of the four people had any money, and we got a default judgment against three of them (the fourth went BK) that was being collected from the one with the $. She argued to get the judgment vacated because, she claimed, she never signed the agreement. The one both a witness and a notary said she DID sign. We are now tracking down the witness, but you'd think the notary would be the easier lift. Our commissions to that "office" are matters of public record. Unfortunately, so are obituaries, and I quickly learned that the notary on the documents died in 2018, the year after they were signed.
Now if this law was in effect then, and she'd actually KEPT the journal now required, and it included what she supposedly saw before notarizing, I might be able to catch the signer in a lie.
And maybe I'll sprout wings and fly to the moon.
no subject
Date: 2023-01-27 09:30 am (UTC)