Pueblo Notary Public

250 N. Purcell Blvd Pueblo West, CO 81007

Thursday, August 03, 2006

 

Guildlines and Rules for a Notary Public in Colorado


Contact Dena Stevens
Realtor, Ecobroker,CSP, Notary Public
719 369-9087






Notary Powers.

1. Jurisdiction. A notary commissioned in Colorado can perform notarial acts anywhere within the state. However, a notary who lives on the Colorado border in Burlington cannot step across into Kansas and notarize a document in that state. A notary can perform a notarial act for anyone who appears before him, regardless of the residence of the principal, subject to some restrictions that will be discussed later.

2. Administer oaths and affirmations. This power, along with taking acknowledgements, is one of the two most common powers that a notary will exercise. The oath requires that the principal swear before a diety, or affirm under penalty of perjury, that the principal is who he says he is and that he understands the document and is signing the document of his own free will. The notary can also swear a person into office.1

3. Take acknowledgements. " ‘Acknowledgment’ means a declaration by a person that the person has executed an instrument for the purposes stated therein and, if the instrument is executed in a representative capacity, that the person signed the instrument with proper authority and executed it as the act of the person or entity represented and identified therein." 2

4. Take depositions. Although notaries may take depositions, the notary who is not also a trained court reporter or stenographer is cautioned to be wary of taking on this notarial function.

5. Certify copies. Notaries may certify copies, subject to the limitations discussed below.

6. Give Notices of Protest and Dishonor of negotiable instruments. This is a specialized function and should only be performed by those notaries familiar with the law of presentment and dishonor in the Uniform Commercial Code3, specifically CRS 4-3-505(3)(b). Neither the Uniform Act nor the Model Act4 include presentment and dishonor in the enumerated powers of a notary. The comment to § 5-1 of the Model Act states "In the case of protesting commercial paper, the drafters believed it better to mention this act and its requirements within a jurisdiction’s Uniform Commercial Code, where it would be known to notaries with the requisite specialized knowledge, rather than in the general notary laws." The Secretary of State sees a number of documents that have been notarized and the holder of the document wants the document to be authenticated. The document purports to be a Notice of Protest but it is generally a claim against a bank or other lender, along with named public officials, using admiralty law as the basis for the claim.



Seals and Journal

1. The seal. Although a number of states make the use of a seal optional, Colorado requires that notaries acquire and use a seal. In 1995, fourteen states did not require the use of a seal.5 By 2004, only 7 states made the use of a seal optional. The seal imparts ritual and solemnity to documents that are "under seal".6 The seal also physically identifies the notary, giving rise to the requirement in many jurisdictions that the seal be kept under lock and key.
a. Colorado does not designate the size, shape or method of attachment of the seal. The seal can be a metal embosser or a rubber inked stamp. With the rise of copy machines, it became more difficult to copy a document that had an embossed seal so the use of the rubber stamp became more prevalent. The seal can be round, square, oblong or oval. The color of the ink can be anything the notary wants to use. The seal requires a border but the design of the border is up to the notary. There is a cautionary note here. The notary who uses hearts and flowers as a border and chartreuse ink on the stamp may be taken less seriously as a professional, "disinterested witness" than one who uses a more conservative approach to the seal.
b. Colorado requires that only three items may be inside the border of the seal: the words "State of Colorado", "Notary Public" and the name of the notary as it appears on the commission certificate7. The commission expiration date, if it is on the seal, must appear outside the border. The Secretary of State’s office recommends as a best practice that the notary purchase a separate stamp for the commission expiration date or physically write in the expiration date on each notarial certificate. The stamp (if it was manufactured correctly) provides the notary with the assurance that the commission expiration date is always correct. The commission expiration date placed on the stamp form of seal ensures that the commission expiration date always appears in the notarial certificate; however it also means that the notary must purchase another seal every four years rather than just purchasing the much less expensive commission expiration stamp.
c. Ownership of the seal is with the notary. Even though a law firm or other employer pays for the notary to be commissioned and purchases or reimburses the notary for the seal and journal, the employer has no right to keep the seal upon the termination of the notary’s employment. In fact, possession and use of an official seal or journal by one who is not the commissioned notary is a Class 3 misdemeanor.8 Some states specifically declare the notary’s seal and/or journal to be the "exclusive property of that notary public."9
d. The notary must notify the Secretary of State within thirty days if a seal is lost or misplaced, or the notary becomes aware that someone else has control over the notary’s electronic signature.10 If the notary decides to resign her commission, or move out of state, the notary must deliver the seal to the Secretary of State. If the notary dies, the personal representative or heirs should deliver the seal to the Secretary of State, if it is available.11
2. The journal. During the 2005 legislative session, the Secretary of State attempted to mandate the use of a notary journal for all notarial acts.12 Unfortunately the Governor vetoed the bill when it got to his desk after passing both houses.
a. Colorado does not presently mandate the use of a journal except for certain notarizations where the documents involve transfer of title to real estate, or when the notary uses an electronic signature. 13 However, there is even an exception to this minimal requirement. Where the notary’s firm or employer maintains an original, copy or electronic record of the notarized document, a journal entry is not required.14
b. When a journal is used, it should (but is not required) contain the following information:
(1) Type and date of the notarial act. The type of act is oath and affirmation, acknowledgment, or certified copies.
(2) The title or type of document and the date of the document if different from the date of notarization.
(3) The name of each person whose oath, affirmation or acknowledgment or other statement is taken.
(4) The signature and address of the principal.
(5) The signature(s), printed name(s) and address(es) of any witnesses.
(6) Although not mentioned in the statute, the notary should also obtain and record the identification used by the principal, such as a drivers’ license.
c. Like the seal, the notary’s journal belongs to the notary, not to the firm or the employer.
d. The notary must notify the Secretary of State within thirty days if a journal is lost or misplaced.15 If the notary decides to resign her commission, or move out of state, the notary must deliver the journal to the Secretary of State. If the notary dies, the personal representative or heirs should deliver the journal to the Secretary of State, if it is available.16
F. Status Changes. A notary who changes her name must file a notice with the Secretary of State within 30 days.17 A name change is less problematic than an address change. The Secretary of State receives numerous calls and complaints from principals who need to have the notary fix an error in the notarial certificate but cannot find the notary. The Secretary of State will revoke the commission of any notary who has been complained against for failure to change an address. The process has just been made simpler. The form is available online. It can be printed out, completed and faxed to the Secretary of State. The $2.00 filing fee has been eliminated for all name and address changes.

Notarial Duties

A. Administer an Oath or Affirmation. The statute provides the form that a notary should use when administering an oath or affirmation.18 The words "subscribed and affirmed, or sworn to before me…" mean something. In an oath or affirmation, the principal must physically apply her signature in front of the notary at the time of the notarization. Colorado actually requires that the notary or any other person authorized to administer an oath have the person swearing lift his hand and swear "by the everliving God",19 however, the Colorado Supreme Court said in Rogers v. People, a 1966 case involving the question of whether the appellant committed perjury in the absence of clear and convincing evidence that the appellant took an oath, "Under most office arrangements where handling of papers are routine and perfunctory, it is unlikely that ‘the everliving God’ terminology was invoked to witness the truth of the statement."20 The court did comment that the ceremonial function was important, when it questioned the lack of examination of the notary witness. "There was not even an attempt to elicit from the witness whether it was her custom in every case to administer the oath as required, or whether she did so in most cases or not at all."21 The inference can be made that the Court expects a notary or any other person administering the oath to at least perform some ritual whereby the principal ‘swears’ to the truthfulness of the statement. For those individuals who are conscientiously opposed to swearing before a deity, the statutes provide that he can affirm, under penalty of perjury to the truthfulness of the statement.22A random survey of notary participants in training provided by the Secretary of State indicates that most Colorado notaries do not actually adhere to the prescribed procedure for notarizing a sworn statement.
B. Take an Acknowledgment. An acknowledgment differs from an oath in three respects. The acknowledgment is not a sworn statement. Secondly, the signature of the principal doesn’t have to be affixed at the time of the notarization. The document or instrument may have been signed earlier and the principal only appears before the notary to "acknowledge" that the signature is his. Suggested forms of acknowledgements are found at CRS §12-55-208. Finally, an oath does not require that the notary identify the principal. When taking an acknowledgment however, the notary must perform additional tasks. The words "Acknowledged before me" means (a) That the person acknowledging appeared before the person taking the acknowledgment and that (b) he acknowledged he executed the instrument; and that (d) That the person taking the acknowledgment either knew or had satisfactory evidence that the person acknowledging was the person named in the instrument or certificate.23 Satisfactory evidence includes but is not limited to:
1. The individual is personally known to the notary as the person named in the document.
2. The sworn statement of a credible witness who is known to the notary and who also knows the principal. This does not mean that the notary can be approached by a person who is not known
3. A current identification card or document issued by a federal or state governmental entity containing a photograph and signature of the individual who is so named. The current identification card can be:
a. A Colorado driver’s license or a driver’s license from another state.
b. A current U.S. passport.
c. The green ID card issued by the military. The new ID card, also called a Common Access Card or CAC has a computer chip in it with the servicemember’s information. However, it doesn’t have a signature as required by statute. The notary could use this identification because of the security used in its issuance and rely on the provision of the statute that says "includes but is not limited to…"
d. Local recreation district ID card when the card contains a picture and a signature.
4. Unacceptable ID. The notary must exhibit a reasonable standard of care when attempting to identify the individual who appears in front of him.
a. A birth certificate is not acceptable for notarial purposes. How a piece of paper that indicates that someone was born in 1949 is supposed to show that the person holding it is the person described in the document defies all common sense. Likewise, rent receipts that may indicate that someone lives at a particular address are not acceptable for notarial purposes. However, they are acceptable under federal rules for voting purposes.24
b. The Matricula Consular (MC) card is not an acceptable ID pursuant to statute as it is not issued by our federal or state governments. The MC is issued by the Mexican government to Mexican foreign nationals in the U.S. Legal residents of the United States would also have identification issued by the U.S. government. If the only ID that the principal has is an MC there is a reasonable inference that the individual is in the country illegally. However, there is nothing in the Colorado Notaries Public Act that would allow a notary to refuse to notarize a signature based on an individual’s status in the United States. See 5. below. The main problem with the MC is that it has been the subject of much media concerning the ease with which it can be forged. The notary subjects herself to a challenge for not adhering to a common standard of care, when it can be shown that many of these identification documents are altered, forged or improperly issued. In 2003, the Colorado legislature passed HB 03-1224, "Secure and Verifiable Identity Document Act."25 This Act defines "Secure and Verifiable Document" as "…a document issued by a state or federal jurisdiction or recognized by the United States government and that is verifiable by federal or state law enforcement, intelligence, or homeland security agencies."26 Few jurisdictions in the country accept the MC as secure identification.
5. Problem areas. The statute gives the notary some discretion in the types of identification that can be accepted. However, it is not specific with respect to foreign documents. Colorado is a year-round tourist venue. There are many occasions when foreign visitors need to have a document notarized but the identification documents they produce do not fit squarely within the statutory language. A legitimate visitor may only have a British passport and a British driver’s license. The reasonably prudent notary would be inclined to accept that identification. The Model Notary Act attempts to deal with this situation by stating that a "properly stamped passport" is acceptable, even without a physical description.27 The notary may also rely on the definition of "Secure and Verifiable Document" in 4b. above under the rule that a foreign passport is recognized by the U.S. government. It is unlikely that a notary who has exercised reasonable care in assessing identification will be held liable if the identification turns out to be false. The best practice would be to also include the appropriate entries in the journal.
6. Competency and free will. In a situation where the notary is taking an acknowledgment, there are two additional functions that the notary must attend to, in addition to properly identifying the principal. The notary must also determine through observation and questioning, whether the principal understands the document that she is signing and the import of the execution of that document and must determine whether the principal is signing of her own free will and is not under duress.28
C. Copy Certifications. A notary may certify copies of documents that cannot be obtained from any clerk and recorder or custodian of documents in Colorado.29 Most often, these documents are diplomas, bank statements, doctor’s notes, medical files, etc. Although copies of school transcripts may be certified, most requestors of these documents want the school to certify them and send them directly to the school or employer.
1. Copies of birth and death certificates may not be certified by a notary. The state registrar in the Department of Public Health and Environment is the only source for certified copies.30
2. Certified copies of marriage certificates can be obtained from the Clerk and Recorder of the county where the marriage was performed.
3. The recommended text for certifying a copy is found at CRS § 12-55-119.
D. The Notarial Certificate. The notarial certificate is the who, what, where, and when of the notarial process. The certificate is sometimes known as a jurat. The term jurat means "It is sworn" and should be used only when an oath or affirmation is being administered. The correct meaning of "certificate" is a jurat or an acknowledgment. Recommended forms for both the jurat and acknowledgments are found at CRS § 12-55-119 and CRS § 12-55-208.
1. The certificate must contain the county where the document was signed by the notary. In the case of a jurat, it will be the county where both the principal and notary sign the document. In the case of an acknowledgment, the principal may have signed the document elsewhere but acknowledges the signature before a notary. The certificate states the county where the principal acknowledged the signature before the notary and the notary has affixed her signature and seal.
2. The certificate must state whether it is a jurat or an acknowledgment by including the words "signed and sworn to or affirmed before me…" or "acknowledged before me…"
3. The certificate must name the principal e.g. "acknowledged before me by John Smith…
4. The certificate must have the date of the notarization.
5. The certificate must have the notary’s signature.
6. The stamped or embossed seal and expiration date must appear somewhere near the notary’s signature.
7. The seal should not cover any of the text of the document. If there is no room for a certificate and seal, the notary should attach a second page containing the certificate, seal and expiration date.

Accommodating Physical Limitations.

There are occasions when the notary is approached by a principal who either cannot write his name due to a physical disability or illiteracy or who cannot communicate verbally with the notary. In the case of an individual who physically cannot sign, the statute provides that a third person may sign the document under the direction of the principal, while both are in the presence of the notary.31 The law is silent as to the procedure for the principal who can only make a mark. In this case, it is recommended that the notary have at least one witness who witnesses the signing by mark and who signs the document as a witness. The notary would put in the certificate that the document was "signed and sworn to or affirmed (or acknowledged) before me by John Smith who made his mark in the presence of Harry Jones, witness". The Model Act requires two witnesses but the notary affixes the mark or the signature on behalf of the principal in front of the two witnesses.32 In the case of a principal who cannot communicate verbally or in writing, the law provides that the notary may use signals or electronic or mechanical means" to communicate.33 The statute does not provide any guidelines as to how this process would work in the real world. The notary is cautioned about performing notarizations when he is dealing with an individual who cannot communicate. The best practice would be to have a third party who knows the principal and who can communicate with the principal and the notary. The notary runs the risk that the third party is not truthfully communicating the principal’s wishes. The alternative is that discrimination against a principal with a disability is probably a greater risk.

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