Liability for Notarial Acts

Effective notary services help to ensure that documents are properly executed, that facts are duly certified, and above all, that the general public is protected from fraud.  Notarization is therefore essential for many official documents including mortgages, deeds, contracts, and various corporate transactions.  Willful violations such as fraud can lead to the removal of the Notary’s commission, and leave the Notary vulnerable to civil and/or criminal legal action.

A notary public who fails to carry out the notary duties correctly may be subject to civil liability for any damages caused by the failure or error.  If the notary’s error enables a forgery, false writing, or other crime to occur, the notary also may be held criminally liable as an accessory to the crime.  The Secretary of State also may revoke the notary’s commission.

A notary public’s liability for damages shall include non-economic and economic damages in some jurisdictions.  Also, long-arm statutes provide jurisdiction to encompass the tortious actions of non-resident notaries when a notarized forgery is affixed to a document affecting interests in immovable.

In Werner v. Werner, 84 Wn.2d 360 (Wash. 1974), the court stated that the doctrine of forum non conveniens contemplates the discretionary declination of jurisdiction where, in the court’s view, the difficulties of litigation militate for the dismissal of the action subject to a stipulation that the defendant submit to jurisdiction in a more convenient forum.

A notary public is always liable for all actions, whether intentional or unintentional.  This liability is unlimited to financial losses and damages.  However, some courts opine that a notary public is not liable for negligent performance of duty.  Even if the notary public is guilty of negligent or intentional acts, the notary will be personally liable to the injured party.

In United States Fidelity & Guaranty Co. v. State, 211 Miss. 864 (Miss. 1951), the court stated that a notary public is liable on his official bond, for wrongful official acts resulting in loss or injury.  It is not necessary that the wrongful act of the notary shall be the sole cause of the loss.  If it is a concurring cause and plays a part in bringing about the injury, the liability for the loss is fixed.

A notary public engages in misconduct by affixing the notarial stamp and signature to an acknowledgment that the subscriber personally appeared on a specific date.  A notary who knowingly purports to authenticate a document which, in fact, has not been properly authenticated, to the detrimental reliance of innocent third parties, is liable for fraud.

A public officer who negligently makes a defective or untrue certificate is liable, together with his surety, on his official bond for any damages resulting from such negligent act.  In United States Fidelity & Guaranty Co. v. State, 211 Miss. 864 (Miss. 1951), the court held that where a notary is called on to perform an act which he is authorized by law to perform, and he does so carelessly or fraudulently, he and his surety are liable for any loss proximately resulting therefrom.  A notary public is not an insurer, but he is under a duty to his clients to act honestly, skillfully and with reasonable diligence.

A notary is not negligent in certifying to the identity of a person, although such person is not the person that is represented and believed to be where he is identified by another person, known to the notary, whom he has no reason to suspect of wrongdoing.  In Werner v. Werner, 84 Wn.2d 360 (Wash. 1974), the court held that in the absence of statutorily defined duties, Wash. Rev. Code § 42.28.010, et seq., the notary bears a duty to take reasonable care to ascertain the identity of the individual whose signature is to be acknowledged.  An action for negligence, therefore, must be predicated upon the notary’s failure to exercise reasonable care in establishing the subscriber’s identity.  Once it has been established that an acknowledged signature is forged, the evidentiary burden shifts to the notary to establish that the proper standard of care was exercised.  To recover for the negligent default of a notary, it should appear that such default was the proximate cause of the loss.

A notary public who fails to take the required care in properly ascertaining the identity of a forger, fails to read a jurat in its entirety before certifying its truth, fails to complete a certificate before signing it, fails to accurately describe the marital status of a vendee of immovable property as required by statute, or prepares a will which is invalid because of a negligent failure to have it properly attested, is negligent.

The most serious of errors made by notaries is failure to require the person to appear before the notary before notarizing the document.  The most common errors by notaries public in notarizing documents are:

  • Failing to attach the notary seal.
  • Neglecting to attach the notary public’s date of expiration of appointment.
  • Failing to sign the notarized document.
  • Omitting names and dates from the acknowledgments, oaths, and affirmations.
  • Failing to properly administer the oath.

 

If a statute requires that a notary mention the existence of any existing mortgages in the act of sale, a failure to record the act of sale will amount to a breach of the statutory obligations.  In Daneman v. Nat’l City Mortg. Co. (In re Cornelius), 408 B.R. 704 (Bankr. S.D. Ohio 2009), the court stated that the acknowledgment before a notary public, or any other public official mentioned in Ohio Rev. Code Ann. § 5301.01, includes the formal execution of the certificate by the officer taking the acknowledgment.  The execution of a mortgage must comply with these statutorily required formalities to be considered valid. Under Ohio law, an improperly executed mortgage is not entitled to be recorded, Ohio Rev. Code Ann. § 5301.25, and thus an improperly executed mortgage does not put a subsequent bona fide purchaser on constructive notice.  As a result, a trustee in bankruptcy can avoid it, regardless of any actual knowledge he may have.  Notwithstanding, if the execution of a mortgage “substantially complies” with the statutory requisites of § 5301.01(A), the mortgage may still be considered valid.

A notary is liable for damages for failure to record the act of sale.  A failure to obtain a tax certificate breaches the statutory duties of a notary.  If a notary is negligent in notarizing affidavits and such negligence constitutes a proximate cause of injury, the injured parties are entitled to be indemnified by the notary and surety, even though the escrow company that handled the transaction was also negligent in failing to examine the affidavits.  An action on a notary’s bond is one for breach of contract, and on the issue of proximate cause, it makes no difference whether the notary’s act in falsely certifying is the result of fraud or negligence.

Notaries public who falsely certify to swearing certain persons to affidavits or other instruments are frequently made criminally liable under statutes.  A notary’s failure to notify the Secretary of State of a name change is punishable with a monetary fine.  Willful failure to notify the Secretary of State of a change of business or residential address is punishable.

If a notary public is convicted of a crime related to notarial misconduct, including the false completion of a notarial certificate or of any felony, the court must revoke the notary public’s commission and require the notary public to surrender to the court the notary seal.  The liability of a surety for the injurious acts of a notary public depends upon whether the act complained of was performed in the line of duty of the notary or, at least, was performed under the color of office.

In United States Fidelity & Guaranty Co. v. State, 211 Miss. 864 (Miss. 1951), the court stated that if a notary makes a false certificate, and an injury results therefrom to another, the notary and his sureties are liable.  They are liable whether the false certificate is valid or invalid, if made in apparent conformity to legally constituted authority, but in excess or perversion thereof, and an injury results therefrom, because in such case the act is done by color of the office.

A surety of a notary is not liable for misappropriation by a notary of money placed in his hands to loan, as the agent of a moneylender.  Under a statute requiring a notary public to receive satisfactory evidence that the person acknowledging is the person described in and who executes the instrument, a notary who totally fails to get any such evidence under circumstances which would have made any reasonable person suspicious is negligent and liable for damages proximately resulting therefrom.

The notary’s surety is liable to one damaged by the notary’s false certification of a fraudulent acknowledgment to a deed of trust, the forging of a mortgage, or, similarly, by the fraudulent acknowledgment of a fictitious mortgage.  In United States Fidelity & Guaranty Co. v. State, 211 Miss. 864 (Miss. 1951), the court held that in those jurisdictions in which a notary is required by statute to give a bond with sureties for the performance of his official duties, he and his sureties, will be liable for any breach of the conditions of the bond, provided such breach is a proximate cause of a loss or injury, although it need not be the sole cause.


Inside Liability for Notarial Acts