Liability and Recordkeeping Flashcards
Notary and Employer Liability
Although as a notary you are bonded, you may be held personally liable for any misconduct or negligence in the performance of your official duties. This means that you could be sued if an improper notarization causes loss to another individual or company. However, if you perform your duties correctly and carefully, always exercising reasonable care, you probably don’t have to worry about being sued.
“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.
Notary and Employer Liability
Florida law provides that the notary’s employer may also be held liable if the notarization in question was done within the scope of the notary’s employment. See §117.05(6), Florida Statutes. 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. Please read page 24 for additional information on government employees as notaries.
Notary and Employer Liability
The best protection for you and your employer against a lawsuit or a claim filed against your notary bond is simple:
Know the laws governing your duties.
Use reasonable care in notarizing.
Don’t make any exceptions.
Keep accurate records.
Keeping Records of Your Notarial Acts:
The Notary Journal
Notaries are not authorized to keep copies of the documents they notarize. The best way to protect yourself is to document your notarial acts in a journal (record book or log).
Keeping Records of Your Notarial Acts:
The Notary Journal
Florida law does not require the use of a notary journal; however, you may be interested to know that the Governor’s Task Force on Notaries Public in 1989 recommended the mandatory use of journals. Although the Legislature did not follow that recommendation, many notaries in Florida are beginning to voluntarily use a journal. You may want to consider this option as well. Each time you perform a notarial act you should record the event your journal.
Guidelines For An Appropriate Journal
Numerous notary journals are available on the market today, and they all have similar features. We recommend that your journal be bound (not loose-leaf) and have consecutively numbered pages, so that a page could not be removed without being detected. Important information should be recorded in the journal including:
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.
Keeping Records of Your Notarial Acts:
The Notary Journal
When using a journal to record your notarizations, it is a good idea to complete the journal entry prior to the notarization to ensure that the party does not leave before the necessary information is recorded.
Guidelines For An Appropriate Journal
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.
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 agreed to notarize signatures on several documents as a favor to a coworker’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.
Order in the Court
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.”
Complaint Process:
Because notaries are appointed by the Governor, it is the responsibility of the Governor’s Office to investigate allegations of misconduct by notaries. The Notary Section investigates hundreds of complaints each year and takes disciplinary action against those notaries found to have been negligent in their duties. Most complaints involve business deals gone awry, persons involved in legal disputes, or friends who asked the notary for a special favor.
Complaint Process:
The majority of the complaints, about 75 percent, are violations of the presence requirement, and most of those also involve allegations of forgery or fraud. Although the notaries are not usually involved in the forgery or fraud, they facilitate the commission of these crimes by not requiring the document signer to be present. Other common complaints are related to incomplete notarial certificates.
Complaint Process:
Once a complaint is received, a copy is forwarded to the notary requesting a sworn written response to the allegations. The notary’s response is then sent to the complainant, giving him or her an opportunity to reply. The Notary Section may find it necessary to request additional information from either party or from other sources. Once all information is gathered, the complaint file is reviewed in its entirety by the Governor’s legal staff.
Complaint Process:
If the allegations against the notary are unfounded, the complaint is dismissed. If the allegations prove to be true, the Governor’s Notary Section recommends disciplinary action. The most common actions include a letter of advice in which the notary is advised of his or her improper action and the method for correcting the error; a written reprimand in which the notary is informed of the findings and issued a warning that any further violation or negligence of duties will result in stronger disciplinary action; and a request for the notary’s resignation. When the notary resigns, the complaint is closed without any further action. However, in most cases, the notary will not be appointed again. If the complaint allegation involves a criminal violation, the complaint is referred to the appropriate State Attorney’s Office for investigation.
