Best Protection for Notaries Against Lawsuits: Keep Accurate Records!

Do notaries have to keep a journal of notarial acts?

In Florida, it’s not mandatory. However, notaries should consider keeping one even though notaries are bonded (insured). Why? Well for the fact that they can be held liable of misconduct or negligence if any improper notarial act causes loss to a person or company. Basically, notaries can be sued.

Notarial duties must be performed by exercising “reasonable care,” and by this, the government means: “Reasonable care” is that degree of care which a person of ordinary prudence and intelligence would exercise in the same or similar circumstances. Failure to exercise such care is negligence.

In Florida, if you work for an employer as a notary, the company also may be held liable if the notarization occurred during company’s working hours. Ex.: A government agency may or may not be held liable for the misconduct of their employee-notaries depending on the circumstances and the laws governing such issues.

So what is the best way to protect oneself if you work as notary for yourself or protect oneself and the company/agency you work for as a notary against a lawsuit?

  •  Know the laws governing your duties.
  •  Use reasonable care in notarizing.
  •  Don’t make any exceptions.
  •  Keep accurate records

The Notary JournalThe best way to keep records of notarial acts 

Since notaries cannot legally keep a copy of the documents they notarize, keeping a log of notarial acts is the best way to maintain records.

In Florida, the law does not require notaries to do that even though the Governor’s Task Force on Notaries Public in 1989 recommended the mandatory use of journals. Nevertheless, Keeping one may protect notaries from lawsuits.

Are there any specific type of journals or record books for notaries?

No, but some specific recommendations are that it should be bound (not loose-leaf) and have consecutively numbered pages. You can purchase it from the same place where you applied to become a notary or from other places such as Amazon (the journal pictures above are from there.)

What information should be recorded?

  •  the date of the notarial act;
  •  the type of notarial act: oath, acknowledgment, attested photocopy, marriage;
  •  the name or brief description of the document;
  •  the party’s printed name, exactly as he or she signed the document;
  •  the party’s address;
  •  the party’s signature;
  •  the type of identification relied upon in identifying the party, including the serial number, expiration date, date of birth, etc.;  the fee charged for the notary service; and
  •  any additional comments you consider important; for example, the person is blind and you read the document to him

TIPS: 

Complete the journal entry prior to the notarization to ensure that the party does not leave before the necessary information is recorded.

Also, in special occasions, you might want to have the signer also sign the journal entry in case it’s needed in the future.

Other important considerations:

  •  Journals can be used to refresh your memory about an event that occurred years earlier, and if kept consistently, may be relied upon for court testimony.
  •  Journals may also prove your compliance with the law.
  •  To be reliable, make sure that you record every notarial act and any special circumstances of the notarization.
  •  Do not share a journal with another notary.
  •  Guard your journal. Keep completed journals for at least 5 years.

Examples of notary liability:

Case Study — Presence Requirement and Notary Liability
Marie Notary’s friend Susan and Susan’s father Roy came to Marie’s office to get some papers notarized. Marie personally knew both Susan and Roy and notarized a number of documents for them.
Later that day, Susan returned with another document they had forgotten. The document was signed by Roy and needed to be notarized.
Susan explained that Roy could not leave work and asked Marie to notarize the signature even though Roy was not present. Marie did so.

Should Marie have notarized Roy’s signature?
NO !


Now, for the rest of the story . . .
The document was a deed transferring ownership of Roy’s home to Susan. Roy did not sign the document — Susan forged his signature.
Using the deed as security, Susan obtained a loan for $27,900. Susan never made any payments, and the bank began foreclosure proceedings on the property.
Roy filed a lawsuit against the bank for relying upon a fraudulent deed. The bank filed a lawsuit against Marie for her illegal notarization.
The bank lost their claim to the property and Roy got his property back. But, the Court awarded the bank a judgment against Marie for $27,900. Additionally, Marie’s bonding company paid out the entire amount of her bond ($1,000) to the bank, which she was required to repay.
By doing a favor for a friend, the notary was held liable for her improper notarization and had to pay back almost $30,000!
Be careful — it could happen to you!

Order in the Court

A recent court decision should be of special interest to Florida notaries and their employers.

In Ameriseal of North East Florida, Inc. v. Leiffer (673 So. 2d 68 [Fla. 5th D.C.A. 1996]), the Court ruled that a notary public and the law firm that employs her may be held liable for damages resulting from an improper notarization.
A notary employed by a law firm agreed to notarize signatures on several documents as a favor to a co-worker’s husband. Neither of the document signers was present. Unknown to the notary, the husband was engaged in a fraudulent bond transaction involving the documents, and the individuals whose signatures were notarized did not actually have authority to sign the documents. A highway subcontractor lost a contract with the state Department of Transportation as a result of the fraudulent transaction.
The company sued the husband, the law firm, and the notary and won a default judgment for more than $350,000 against the husband. However, the trial court granted summary judgment in favor of the law firm and the notary, concluding that the improper notarization was not the proximate cause of the contractor’s losses. The District Court of Appeal reversed, saying the contractor relied on documents without knowing that the notary (Ellis) had failed to verify the signers’ identities.
The Court stated, “Ellis’ obligation as a notary is quite simple: she must either know or have properly identified the affiants that appear before her and she must administer the proper oath. If business cannot depend on notaries doing this simple task, then there is no place for notaries in the world of commerce.”

FL Governor’s Reference Manual for Notaries – Liability and Recordkeeping p.42-43

In both cases above, the mistake was the signers were not present. Notaries should not compromise or accommodate certain requests that go against the law under no circumstance! Remember, friendship does not trample the physical presence requirement. That is the best protection against lawsuits and causing harm, loss, money, headaches,… to themselves and someone else!

by Alessandra Gomes

On My Way FL Notary S.A.

http://www.onmywayflnsa.com

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