You would think that’s common sense that if someone wants his or her signature on a document to be notarized, that he or she would be in the presence of a notary, right? Moreover, you’d think that notaries, who run the risk of being found guilty of a civil infraction if there was no intention to commit fraud and losing their commission, would be very adamant about this rule. Humm… apparently that’s not the case and that’s how many frauds are committed! I cannot understand why some notaries would take this risk; it’s beyond logic and reasoning since there is so much at stake. Notaries cannot notarize the signatures of their clients’ ghosts!
Some notaries, unfortunately, notarize signatures of people who are not physically present to verify identity and be able to assess if they understand and agree to sign the document freely despite this being a requirement by the state. In Florida, there is no exception to this requirement, but I’m almost sure that most states, if not all, would require the same.
Florida Statutes section 117.107(9) provides that:
A notary public may not notarize a signature on a document if the person is not in the presence of the notary public at the time the signature is notarized. Any notary public who violates this paragraph is guilty of a civil infraction, punishable by penalty not exceeding $5,000, and that conduct constitutes malfeasance and misfeasance in the conduct of official duties. It is no defense to the civil infraction specified in this paragraph that the notary public acted without intent to defraud.
A notary public who violates this paragraph with the intent to defraud is guilty of violating s. 117.105.
Violation of section 117.105 constitutes a third-degree felony for fraudulently taking an acknowledgment or making a false notary certificate.
There is no exception to the presence requirement!
Here is a sample of a case study from the FL GOVERNOR’S REFERENCE MANUAL FOR NOTARIES:
Nancy is a notary and owns a small paralegal business. Jan came into the office one day with a deed signed by her husband Rick and requested Nancy to notarize his signature.
Rick was at home sick, but Jan brought Rick’s driver’s license with her. At Jan’s suggestion and just to be on the “safe side,” Nancy called Rick at home to verify his signature.
The man identifying himself as Rick confirmed that he had signed the
document voluntarily and wanted his signature notarized. Nancy proceeded with the notarization.
Should Nancy have notarized Rick’s signature?
Now, for the real story . . .
Unknown to Nancy, Jan was planning to divorce Rick and she wanted their home transferred to her name first. Jan forged Rick’s signature on the deed and took his driver’s license without his knowledge.
The man that Nancy spoke to on the phone was actually Jan’s boyfriend! The case ended up in divorce court and Rick was given his portion of the property.
The Governor’s Office required Nancy Notary’s resignation and will not appoint her again as a notary. She now has a difficult time working as a paralegal without a notary commission.
Read more about Presence Requirement & other situations on American Society of Notaries
As you can see, a notary who takes the word of someone else and notarizes a signature on a document without the person being physically present by attempting to verify the identity and agreement over the telephone, or any other electronic means (Webcams), is risking much more than just losing his or her commission and may be assisting, inadvertently, fraud!
So there is no other way around the presence requirement! No, a notary may not swear-in, notarize a signature, or perform any notarial act via webcam, telephone,… or because someone else just brought a signed document claiming that the signer did do it voluntarily. Technology does not trample the presence requirement by law.
Notaries: beware! You may not only be putting yourselves on the line by assisting fraud even if unintentionally, and may be causing a LOT of problems for someone out there. You can’t give yourself the luxury of neglecting this vital requirement. Do yourself and others a favor and be ethical, adhere to the law, to the office and duties you’re appointed.
Clients: beware of notaries who would do this! It’s not in your best interest UNLESS your intent is to commit fraud! Even if your intentions are legitimate, the principle is the same; don’t fall for convenience and the feeling of self-importance that someone, a notary, trusts you, your word. What happens if someone else with the intent of defrauding you finds the same willing notary? Would you still think of him or her being so accommodating a good thing?
Since I’m planning to be a mobile notary, it will be difficult for people to come up with an excuse as to why the signer cannot be present. In case they do, I will simply refuse to perform the notarial act. It’s as simple as that!
by Alessandra Gomes
On My Way FL Notary S.A.
- Preventing Fraud: Forms of Identifications that Notaries Can Accept (onmywayflnotarysa.wordpress.com)
- What Can a Notary Public Do or Cannot Do? (onmywayflnotarysa.wordpress.com)
- What is a Notary Public and a Notary Signing Agent? (onmywayflnotarysa.wordpress.com)
- Notary Public Fees: How Much to Charge? (onmywayflnotarysa.wordpress.com)
- How Do I Become a Notary Public? (onmywayflnotarysa.wordpress.com)
- Can a Notary Public Refuse to Notarize? (onmywayflnotarysa.wordpress.com)
- Are All Notaries Created The Same? (bayareamobilenotary.wordpress.com)
- NotaryNow Offers World’s First Online Notarization Service (prweb.com)
- Why I Decided to Become a Notary Public and Signing Agent, Too (onmywayflnotarysa.wordpress.com)