Society places great trust in Notaries. A Notary’s acknowledgment certificate entitles valuable real property documents to be recorded in the local land records, providing public notice of the chain of title. A properly notarized power of attorney authorizes an attorney in fact to make important financial and health care decisions for a loved one. Self-proving affidavits to a last will and testament sworn to before a Notary relieve the witnesses from having to appear in probate court years later to establish that the testator signed his or her will in their presence.
When a Notary violates this trust by negligently performing his or her duties, the public can suffer great harm. The following cases illustrate that a Notary can be held financially liable when he or she fails to perform notarial acts properly.
Biakanja v. Irving, 49 Cal.2d 647 (1958)
320 P.2d 16
John Maroevich wanted to bequeath all his property to his sister, Vinka Biakanja, and he approached Thomas Irving, a Notary Public, to prepare his will. Unfortunately, the will prepared by Irving was denied probate because it wasn’t signed and witnessed properly. As a result, Ms. Biakanja received only one-eighth of the value of the property she would have received had the will been properly attested.
Under California law the will was improperly executed because the testator did not sign or acknowledge his signature in the presence of two witnesses. Irving, the Notary, erroneously told Maroevich that his will needed only to be notarized.
The court found that Irving erred in preparing a will for Biakanja’s brother and recommending that it be notarized and not witnessed as the probate code requires. Drafting a will requires specialized skill that as a non-attorney Irving was not qualified to undertake. His conduct was not only negligent but also highly improper since he engaged in the unauthorized practice of law.
The California Supreme Court upheld a lower court decision that granted Biakanja a judgment against Irving for the amount of damages she suffered as a result of Irving’s negligence and unauthorized practice of law.
The Biakanja case teaches an important lesson to the Notary. The case demonstrates that it is illegal and dangerous for a non-attorney Notary to provide legal advice on any matter, particularly a matter of such importance as a will. This Notary’s ignorance of state probate law led him to mistakenly believe that a Notary’s seal on a will trumps any and all other requirements. Engaging in unauthorized practice of law in California exposed the Notary to civil liability and was also a misdemeanor offense punishable by criminal penalties and administrative sanctions by the California Secretary of State.
City Consumer Services Inc. v. Metcalf
161 Ariz. 1, 775 P.2d 1065 (1989)
Bruce and Jane Vickers acquired a home in Arizona. On October 16, 1981, Bruce went to attorney Harold Metcalf’s offices located in the same building as his office with a woman he introduced as his wife. Bruce presented Metcalf, who was a Notary, with a Quitclaim Deed supposedly signed by Jane transferring Jane’s interest in the home to Bruce.
Metcalf did not ask the woman if she signed the Quitclaim Deed, request identification from her or obtain an acknowledgment of her signature. Based solely on Bruce’s introduction and representation that the woman was his wife, Metcalf notarized the Quitclaim Deed. The woman was not Bruce’s wife and the signature was a forgery.
Bruce then went to City Consumer Services to obtain a loan against the property for $60,000. The Vickers divorced in 1984 and Jane was awarded full ownership of the home. Jane was still unaware of Bruce’s fraud or loan when City Consumer Services attempted to foreclose the Deed of Trust on the property. Jane successfully prevented City from selling the entire property. City sold only Bruce’s one-half interest in the appraised value of the property – $50,000 – and purchased it as the sole bidder.
Both City and Jane sued Metcalf for negligently notarizing the Quitclaim Deed. The jury awarded City $10,000 and Jane $50,000 to repurchase the balance of the home from City.
On appeal, the court found Metcalf to have violated Arizona statute which requires the person whose signature is being acknowledged to have appeared before the Notary and acknowledge that he or she executed the instrument and for failing to have either “known” the person whose signature is being acknowledged or have “satisfactory evidence” of the person’s identity.
Metcalf claimed that Bruce’s introduction of the woman purporting to be his wife constituted “satisfactory evidence.” The court would not grant that the introduction of a purported signer by the person who stood to financially gain from the transaction met the identification standards of the Arizona statute. Furthermore, the court was not swayed by three Notaries Public Metcalf brought forward to testify that Metcalf had conducted himself as a reasonable Notary. The court determined that even if Metcalf’s actions had conformed to the custom of Arizona Notaries Public, the jury could still find his actions negligent.
Even though Metcalf was an attorney, this case teaches Notaries that in taking an acknowledgment, the statute’s requirements for positively identifying the signer and for the signer to verbally acknowledge signing the document cannot be disregarded.
Vancura v. Katris
108652 (Ill. 10-7-2010)
Richard Vancura, a real estate investor, loaned Glenn Brown $100,000 to purchase and renovate a home in Wheaton, Illinois in 1994. In return, Brown signed a $110,000 Note payable to Vancura, which was secured by a first mortgage on the property and Brown’s personal guarantee. By late 1995, the loan had matured and Vancura wanted to be paid. The home had not been sold.
Vancura told Randall Boatwright, a mutual friend, that he would be willing to sell the Mortgage on the property at a discount and then assign the Mortgage and Note in exchange for a greater interest in a business venture of Boatwright’s. In turn, Boatwright told Brown he would accept $90,000 as the payoff. Brown approached an acquaintance to help finance the payoff.
At the closing for the property on December 20, 1995 it was discovered that a Release Deed signed by Boatwright and an Assignment of Mortgage purportedly signed by Vancura had not been notarized. The closing was temporarily postponed while Boatwright and his partner went to a Kinko’s to have the documents notarized. The Kinko’s Notary, Gustalvo Albear, notarized the Release Deed signed by Boatwright. Albear testified at trial that while his seal appeared on the Assignment of Mortgage, his signature had been forged on the Assignment. Vancura was not present at Kinko’s for the notarization.
The two documents were returned to the closing table and the sale of the property was consummated.
Brown sold the property on December 20, 2005. About a month later, Vancura asked Brown for his assistance with a project due to his considerable outstanding debt. Brown told Vancura that the property had been sold and that there was no remaining debt. Vancura told Brown that he had never released the Mortgage to Boatwright. That’s when Vancura sued all of the parties participating in the business deal, including the Notary.
All parties in the case agreed that Notary Gustalvo Albear committed misconduct either by notarizing Richard Vancura’s signature on a mortgage assignment without Vancura present or without properly identifying the person purporting to be Vancura, or by negligently or intentionally permitting someone else to apply his seal on the document and then forge his Notary signature.
Presented with the evidence of his misconduct, Albear settled in advance of trial for $30,000. Had he not settled, the court could have held him liable along with the other defendants for Vancura’s full losses of over $110,000.
Purchasing E&O Insurance is an important safety measure that protects you from a mistake or an outright false claim. You can also purchase E&O insurance as part of a complete Notary Supply Package to become a Notary Public or to renew your Notary commission.
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