Notaries, Public Can Be Hard to Put Together

Anyone needing something notarized used to go to the corner bank or savings and loan or maybe a neighborhood realty office. Now those places often say there is no notary public in the office.

This may not be the case. They’re there, “but they’re hiding,” says Charles Faerber, vice president of the National Notary Assn. in Canoga Park. Notaries, like everyone else, have had their share of lawsuits, and to limit their liability, says Faerber, they limit their work to documents involving their employer.

Notary work, oddly, takes little training or expertise and makes little money, but is indispensable. Like the ancient scribes from whom they’re descended (the Roman “notarius” among them), modern notaries serve society as official witnesses to oaths and contracts. Indeed, says Faerber, “every civilized nation has some kind of government-appointed impartial witness to make sure that somebody is who they say they are on important documents.”

Varies by State

Notaries of old also drew up documents and later stored them, and in many countries today, notaries have similar authority and commensurate training. In the United States, the field, it’s said, has been “democratized”; most of our 4 million notaries just take oaths and affidavits, or witness signing of trust deeds, loan papers and other documents, checking the signer’s identity.

But it’s variable. In several states, notaries can perform marriages; in Louisiana, they can draft legal documents (indeed, many are lawyers); in Pennsylvania, they handle transfers of car titles. Similarly, to become a notary in some states, says Milton Valera, president of the NNA, “you just buy a stamp.” Florida’s 350,000 notaries fill in an application and pay $25. California’s 150,000 notaries must be fingerprinted, can miss only two true-false questions on a 15-question, open-book test of information from a printed pamphlet, and need a surety bond of $10,000.

Easily won and ill-paying (top fees run $5 per notarized signature), the notary’s position is nevertheless sensitive. If notaries are willing to notarize when the wrong person, or no person at all, appears before them, they can abet a lot of white-collar crime--illegitimate title transfers, odometer fraud, boat theft (this a Florida problem), insurance fraud. In border cities, unscrupulous notaries capitalize on the quasi-legal role of the notario in Latin American countries, charging for immigration “counseling” and documents available free elsewhere, even promising immigrants legal status they can’t deliver.

Some Careless

Some notaries are not criminal, but careless. A few years ago, California’s Secretary of State March Fong Eu reported that of 4,000 cases of alleged notarial misconduct, “over 90% . . . stem from carelessness on the part of the notary public.” Typically, said the report, the notary failed to require the signer’s presence (often, says Faerber, taking a boss’s word about the signature) or failed to establish the signer’s true identity, or to keep the notary seal out of strange hands.

Complaints to California’s Notary Division about alleged misconduct are investigated, and a notary’s license could be suspended or revoked. In many states, however, the entity that grants the commissions has neither investigative personnel nor authority to suspend.

Notaries everywhere have been subject to lawsuits, threatening in both number and size, and resulting in higher premiums for the liability insurance that many notaries now buy. Some challenged industry practice--a 1981 California appellate decision, for example (Allstate Savings & Loan Assn. v. Lotito), which found a notary negligent for notarizing a signature on a grant deed that was later labeled a forgery. Lotito, like most notaries, relied on such paper proofs of identity as drivers licenses and passports: The court, drawing on an 1872 statute, said a notary must personally know the signer.

“For several weeks,” says Valera, “notarization essentially came to a halt,” given the impossibility of knowing all customers in today’s society. The case left a residue of anxiety about the nation’s outmoded notary statutes, although California’s Legislature, among others, immediately passed a law allowing notaries to rely on such documents for identification.

Even more threatening were the lawsuits “where notaries were thrown in just because their name appeared on a document,” says Faerber. The largest was a $660-million suit involving a San Diego notary who had notarized a project manager’s signature on legal interrogatories involving an accident at a construction firm. The honesty of the interrogatories was later challenged, and the notary included among the defendants only because his name appeared on the document in question; although he was ultimately dismissed from the suit, he had to hire a lawyer and defend himself.

Defensive Notaries

One result of all the questions about notaries’ activities is more aggressive state regulation. Thirty three states now require surety bonds that give customers some recourse when a notary is negligent, and some are increasing the value of the bond required, says a spokesman for Western Surety Co. in Sioux Falls, S.D. Many states are revising their laws or regulations on notaries: In Florida, for example, a governor’s commission is looking into complaints against notaries, whose positions have no educational requirements and whose activities are not policed.

Another result is defensive notaries, those notaries-in-hiding who “have heard of other notaries being sued,” says Faerber, “and are very wary.” There seems, however, to be some ambivalence about this wariness; trade press and trade experts continually warn of the danger of unjustified lawsuits, while they reiterate that notaries who mind the P’s and Q’s of required procedure have nothing to fear.

None of this explanation is much help to the person who needs a notary on some business that doesn’t directly involve his bank, his attorney or his realtor. Preferring to deal, as before, with an impersonal but familiar institution, he must look around his own company for notaries, or try one of the independent, on-call notaries who advertise in the phone books in larger cities.

The public might well question how many notaries now are really notaries public, while notaries ask how public they can be when they’re held liable for making reasonable judgments about the identity of strangers.