A Notary Primer for Utah Attorneys
by Scott M. Ellsworth
We all know the frustration of having a notary form attached to a document that innocently asserts that the document was signed in front of a notary when in fact it has already been signed and all that’s needed is an acknowledgement. Few people are even sufficiently into notarial minutiae to distinguish among jurats, acknowledgements, copy certifications, and pronotarial oaths (and, of course, such people could, with some justification, reply “that’s what attorneys are for”). The problem is, however, that chapter 46-1 of the Utah Code (the Notaries Public Reform Act) just doesn’t come up all that often, and we can hardly expect our assistants and paralegals to comprehend the ins and outs of notarial verification (at least, not without some training) unless they themselves are notaries. And even notaries are often unaware of which kind of document requires what kind of certificate.
Then again, the Utah Supreme Court, in Penta Creeks, LLC, v. Olds, 2008 UT 25, 182 P.3d 362, had occasion to remind us of the distinction between “verification on oath” and “mere notarization”:
[I]n order for there to be a valid verification “(1) there must be a correct written oath or affirmation, and (2) it must be signed by the affiant in the presence of a notary or other person authorized to take oaths, and (3) the latter must affix a proper jurat.” Mickelsen v. Craigco, Inc., 767 P.2d 561, 564 (Utah 1989) (interpreting the Utah Code section 38-1-7 (1974) requirement that a mechanics’ lien “must be verified by the oath of [the claimant]”). Verification on oath is distinguished from a mere notarization in that verification requires that “the applicant swears to the truthfulness of the representations made in the application.” Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 31, 9 P.3d 762 (Howe, C.J., concurring).
The requirement of verification contemplates the presence of visible evidence that the person submitting the objection appreciated that its contents were to be prepared with the utmost rectitude.
2008 UT 25, ¶¶18-19. A review of my firm’s form files revealed a large number of notarial variations, most of them variations on the same theme:
On this _____ day of _____________, 2003, appeared before me Ms. Anne Ominous, who acknowledged before me that she had executed the foregoing document for the purposes stated therein.
_____________________ Notary Public
On the _____ day of ________________, 2005, there appeared before me Mr. José Quienquiera, the president of S” Food, LC, who, after being duly sworn, acknowledged that he signed the above agreement.
_____________________ Notary Public
On this _____ day of _____________, 2001, appeared before me Mr. Walker Nampe, who executed the foregoing as chairman of the Hakateweh Mosquito Abatement District, for the purposes set forth therein.
_____________________ Notary Public
These, and many other, similar acknowledgements, turn up on affidavits, contracts, deeds, license applications, and so on and on. Without recourse to chapter 46-1, though, there is no way to tell whether any of these notary statements sufficed for the documents upon which they appeared, nor what those documents actually required by way of notary certification, nor where the form of certification that was used on each came from in the first place.
After noting the suspicious (and rather disheartening) homogeneity of all these various forms, we decided to update our cache of certifications, rediscovering in the process the proprieties of notarization: the several kinds of notarial acts, which to use when and on what sort of document, and what needs to be done to validate each type of certification.
It was quite an instructive review, actually, and we immediately set about creating a database of notary forms for every conceivable document. We’ll never be done, I expect, but we’ll be far less likely to overlook or have to repair defective notarial certificates, either.
In an effort to assist our fellow attorneys – at least those who have, as we had, stumbled into the quagmire of certificate recycling, losing the tree in the forest, as it were – we offer for their review the brief table and outline of essentials we created for quick reference, along with an example or two of each type of notarial act. Included in our review was the totally nonnotarial “self-authentication” statute, designed to streamline procedures under the Utah Rules of Criminal Procedure, Civil Procedure, and Evidence. See John H. Bogart & Scott D. McCoy, 20 Utah B.J. 22 (July/August, 2007).
I. JURATS
Aver the truth of the document notarized.
The signer –
(a) (i) is known to the notary, or
(ii) has been satisfactorily identified;
(b) has signed the document
(i) voluntarily, and
(ii) in the presence of the notary; and
(c) vouches for the truthfulness of the document signed.
E.g.: Verified Complaints
STATE OF ________ )
: ss
COUNTY OF ______ )
On this ___ day of __________, 20___, appeared before me __________, who is personally known to me, or whose identity has been satisfactorily established, and voluntarily executed the foregoing Verified Complaint in my presence, avouching thereby the truthfulness thereof.
____________________ Notary Public
Affidavits
STATE OF ________ )
: ss
COUNTY OF ______ )
Affiant __________ declares upon oath as follows:
[text of affidavit]
Subscribed and sworn to before me this ___ day of __________, 20___, by __________, who is personally known to me or whose identity has been satisfactorily established.
____________________ Notary Public
Note: Obviously, most of this language is omitted from affidavits, since it is assumed (a) that the affiant is who he or she claims to be, and (b) that the whole point of the affidavit is to speak what the affiant believes to be true.
II. ACKNOWLEDGEMENTS
Verify that the signer did in fact agree to the provisions of the document.
The signer –
(a) (i) is known to the notary, or
(ii) has been satisfactorily identified;
(b) has signed a document,
(i) voluntarily,
(ii) for the purpose stated therein; and
(c) has, in the presence of the notary, admitted doing so.
E.g.: Deeds
STATE OF ________ )
: ss
COUNTY OF ______ )
On this ___ day of __________, 20___, personally appeared before me __________ & __________, the Grantors herein, personally known to me, or whose identities have been satisfactorily established to me, who duly acknowledged to me that they had voluntarily executed the foregoing deed for the purpose stated therein.
Or____________________ Notary Public
STATE OF ________ )
: ss
COUNTY OF ______ )
On this ___ day of __________, 20___, appeared before me __________, the president of IncCo, LC, the Grantor herein, who, [his her] identity and position having been satisfactorily established to me, affirmed to me upon oath that the governing body of IncCo, LC, has authorized [him her] to execute the foregoing quitclaim deed, and did duly acknowledge in my presence having executed the same for the purpose stated therein.
____________________ Notary Public
III. COPY CERTIFICATION
for Evidence and the like.
A photocopy – is an accurate copy of a document neither
(a) a public record, nor
(b) publicly recorded.
STATE OF ________ )
: ss
COUNTY OF ______ )
On this ___ day of __________, 20___, I hereby certify (1) that the foregoing [or attached] document is an accurate and unaltered copy of __[the name or a description of the document]_, presented to me by __________, the document’s custodian, and (2) that, to the best of my knowledge, the copied document is neither a public record nor publicly recorded.
____________________ Notary Public
Note: Many notaries appear to be unaware of this particular aspect of their office: the examination and certification of photocopy accuracy, which can become rather burdensome if the copy to be certified is bulky (an unpublished manuscript, for example, or a journal, or a lengthy but unrecorded will) or deeply detailed (such as a photograph, engineering drawings, or a map). Obviously, the best practice would be to make the photocopy with the notary there to see; failing that, well, this particular exercise of the notarial authority might require rather more time than taking oaths, watching signatures, or listening to simple acknowledgements.
IV. OATH /AFFIRMATION
Certifies that a vow or affirmation was made in the notary’s presence.
A person – has made a vow or affirmation
(a) on penalty of perjury
(b) in the presence of the notary.
STATE OF ________ )
: ss
COUNTY OF ______ )
I hereby certify that, on this ___ day of __________, 20___, [the name of the oathtaker] did swear [or affirm], in my presence and on penalty of perjury, that [the words or substance of the oath or affirmation].
V. SELF-AUTHENTICATION UTAH CODE SECTION 78B-5-705 Grants certain unsworn written declarations the same force as a declaration upon oath.____________________ Notary Public
A signer – satisfies a URCrP, URCP, or URE provision requiring or permitting a written declaration upon oath by affixing instead an unsworn written declaration, expressly under criminal penalty (class-B misdemeanor), that a document is true and correct.
(This is essentially just a non-notarial Jurat.).
I certify, under criminal penalty of the State of Utah, that the foregoing [the name or description of the document] is true and correct.
Signed: ____________________Date: ____________________
Note: The self-authentication provision, enacted at the Utah Legislature’s 2007 General Session (2007 Utah Laws c. 278), was originally codified at Utah Code Section 46-5-101. This section, however, no longer exists, having been renumbered as Utah Code Section 78B-5-705 by the 2008 Legislature (2008 Utah Laws c. 119) as part of its sweeping rearrangement and bifurcation of former Title 78, the Utah Judicial Code.
1. It’s not entirely clear why this same option is not available under either the Utah Rules of Juvenile Procedure or of Court-Annexed Alternative Dispute Resolution.