Insights

The recently announced results of a comprehensive federal interagency review of residential mortgage foreclosure-related procedures by ten large banking organizations noted certain deficiencies with respect to notarization procedures. For example, some bank examiners reported that “individuals signing documents did not do so in the presence of a notary when required, and that documents often were executed in a manner contrary to the notary’s acknowledgement and verification of those documents.” This raises the question: What exactly is a proper “acknowledgment” before a notary public? And what is the difference between signing a document (such as an affidavit) under oath, and “acknowledging” a document?

Connecticut case law indicates that an “acknowledgment” is “the formal declaration, before an authorized official, by the person who executed an instrument, that it is his free act and deed. It serves to authenticate the instrument by furnishing formal proof, through the action of the public official taking the acknowledgment, that the instrument was actually executed by the person whose signature appears upon it. It identifies the person who is to be bound by the instrument he has signed.” (See, e.g., Commercial Credit Corp. v. Carlson, 114 Conn. 514, 159 A. 352 (Conn. 1932) and cases cited therein, including Sanford v. Bulkley, 30 Conn. 344 (Conn. 1862).) Consequently, the notary who takes a person’s acknowledgment does not need to personally witness the execution of the document (that is what “witnesses” are for). Instead, the person who executed the document could, at a later time, appear before a notary public, prove his or her identity to the satisfaction of the notary, and “acknowledge” to the notary that s/he executed the document freely, without coercion. The notary’s signed, written certificate of acknowledgment, attached to the executed and acknowledged document, is formal evidence that this verbal “acknowledgment” occurred – it is not the actual acknowledgment itself. Additional evidence may be introduced to prove that the actual “acknowledgment” occurred (and to prove the identity of the person whose acknowledgment was taken by the notary), supplementing (or, where applicable, rebutting) the written certificate of acknowledgment.

In Jones v. Owen, 2009 Ark. 505 (2009), the Arkansas Supreme Court stated that a “grantor may, at some time after signing an instrument, appear before a notary public in person to acknowledge his or her signature on the document. […] The grantor may even acknowledge his or her signature via a telephone conversation with the notary public. […] However, if the grantor never appears to acknowledge his or her signature on the instrument, but the notary public falsely certifies that the grantor did appear, the acknowledgment is void.” “The purpose of a notary public taking an acknowledgment of an instrument is to certify the identity of the person who executed the instrument. In other words, the notary public has been entrusted by the State with the responsibility of certifying the bona fides of the instrument’s execution—that the person making the acknowledgment ‘is the person described in and who executed the instrument.’” “A notary public has properly taken an acknowledgment when he or she witnesses the signing of an instrument or when the signer subsequently appears before the notary and acknowledges his or her signature on the instrument.” (citations intentionally omitted) New York courts similarly recognize that “[t]here are two aspects to an acknowledgment: the oral declaration of the signer of the document and the written certificate, prepared by one of a number of public officials, generally a notary public.” (See, e.g., In re Abady, 906 N.Y.S.2d 321, 76 A.D.3d 525 (Sup. Ct. App. Div. 2010).)

A New Jersey statute clearly distinguishes between the requirements for an “acknowledgment” before a notary public and the requirements for the notary’s “certificate of acknowledgment.” New Jersey Stat. Section 46:14-2.1 provides that an individual’s “acknowledgment” before a notary public (or another authorized public official) must include the specific statement that the individual signed as his “own act”. There is no other statutorily required element for an individual’s acknowledgment in this New Jersey statute – just the requirement that the individual “acknowledge” that s/he signed as his or her “own act”. In contrast, the notary’s signed certificate of acknowledgment (evidencing the fact that the acknowledgment occurred before the notary) must include the following five pieces of information: (1) the fact that the individual personally appeared before the notary public, (2) the fact that the notary public was satisfied that the person who made the acknowledgment was the signer of the instrument, (3) the jurisdiction in which the acknowledgment was taken, (4) the notary’s name and title, and (5) the date on which the acknowledgment occurred.

Massachusetts statutes similarly recognize the difference between the actual acknowledgment and the notary public’s certificate of acknowledgment. (See, e.g., Mass. Gen. Laws ch. 183 Sections 29 and 30.) If, after having executed a mortgage deed (or other instrument), a mortgagor (or other signer) has not yet had an opportunity to appear before a Massachusetts notary public to acknowledge that he or she executed the mortgage (or other instrument) as his or her free act and deed (whether because of relocation to another state, or because of death), Mass. Gen. Laws ch. 183 Section 34 allows proof of the “due execution” of the instrument to be “proved before any court of record in this commonwealth by the testimony of a subscribing witness thereto.” These statutes implicitly recognize that there could be a time period following execution of an instrument, before the execution is formally “acknowledged” by the instrument’s signer in front of a notary public or other authorized public official. These statutes also recognize the difference between an acknowledgment before a notary public (or other authorized public official) and a signature that occurs in the presence of a “subscribing witness.” If all subscribing witnesses have died or have moved to outside Massachusetts, and there is no evidence that the mortgagor (or other signer) formally acknowledged having signed the instrument, Mass. Gen. Laws ch. 183 Section 35 allows proof of the “due execution” of the mortgage (or other instrument) “by proving the handwriting of the grantor and of a subscribing witness.” Sections 36 and 37 also spell out procedures that may be followed to prove the due execution of a mortgage (or other instrument) if a mortgagor (or other signer) refuses to “acknowledge” that she or he executed the instrument.

Massachusetts Revised Executive Order No. 455 (04-04) (Standards of Conduct for Notaries Public) also recognizes the distinction between an “acknowledgment” and a “jurat”. A “jurat” is “a notarial act in which an individual, at a single time and place:

(a) appears in person before the notary public and presents a document;

(b) is identified by the notary public through satisfactory evidence of identity;

(c) signs the document in the presence of the notary public; and

(d) takes an oath or affirmation before the notary vouching for the truthfulness or accuracy of the signed document.”

In FAQs on the Massachusetts Governor’s web site, Massachusetts notaries are cautioned that, although “[d]ocuments requiring acknowledgements do not need to be signed in the notary’s presence,” “documents requiring a jurat must indeed be signed in the notary’s presence, as directed by the typical jurat wording, ‘Subscribed (signed) and sworn to before me….’ In executing a jurat, a notary guarantees that the signer, personally appeared before the notary, was given an oath or affirmation by the notary, and signed in the notary’s presence.”

The Connecticut Secretary of the State’s Notary Public Manual similarly distinguishes between an acknowledgment and a jurat: “When you administer an oath and prepare a jurat, the emphasis is on the oath as to the accuracy of the statements in the document and the signer’s identity. When you take an acknowledgment, the emphasis is upon the fact that the act is the free act and deed of the signer and the verification of his/her identity.”

In summary, a notary public should be able to take a person’s “acknowledgment” without having personally witnessed the acknowledging person’s signature – the purpose of an “acknowledgment” is different from the purpose or reason for having one or more witnesses to a signature. Documents that are required to be signed under oath, however (such as affidavits) are typically not “acknowledged.” Instead of confirming that the signer of an affidavit signed it as his or her own free act and deed, the notary public should be confirming that the signer swore to the truthfulness of the contents of the affidavit, and that the signer’s signature on the affidavit was made while the signer was operating under that oath.

The specific requirements for an acknowledgment or a jurat before a notary depend on applicable state law, however (including case law and statutes), and may also depend on applicable state court rules of procedure if the document will be filed in court.

Elizabeth C. Yen is a partner in the Connecticut office of Hudson Cook, LLP, headquartered in Maryland. She is admitted to practice in Connecticut only. The views expressed herein are personal and not necessarily those of any employer, client, constituent or affiliate of the author. Elizabeth can be reached at (203) 776-1911 or by email at eyen@hudco.com.