[WSBAPT] notary seal

[Rob Wilson-Hoss]

Katherine, 

 

          Probably not, but maybe. I would. The most extensive discussion of problems with notarizations is in Klem, which punishes Quality Loan Servicing for false notarizations, a much different matter. But 42.44.090(1) requires an impression of the official seal. Anyway, here is Klem:

 

C. Predating notarizations

          ¶ 41 Klem submitted evidence that Quality had a practice of having a notary predate notices of sale. This is often a part of the practice known as “robo-signing.”14 Specifically, in this case, it appears that at least from 2004–2007, Quality notaries regularly falsified the date on which documents were signed.

          ¶ 42 Quality suggests these falsely notarized documents are immaterial because the owner received the minimum notice required by law. This no-harm, no-foul argument again reveals a misunderstanding of Washington law and the purpose and importance of the notary's acknowledgment under the law. A signed notarization is the ultimate assurance upon which the whole world is entitled to rely that the proper person signed a document on the stated day and place. Local, interstate, and international transactions involving individuals, banks, and corporations proceed smoothly because all may rely upon the sanctity of *793 the notary's seal. This court does not take lightly the importance of a notary's obligation to verify the signor's identity and the date of signing by having the signature performed in the notary's presence. Werner v. Werner, 84 Wash.2d 360, 526 P.2d 370 (1974). As amicus Washington State Bar Association notes, “The proper functioning of the legal system depends on the honesty of notaries who are entrusted to verify the signing of legally significant documents.” Amicus Br. of WSBA at 1. While the legislature has not yet declared that it is a per se unfair or deceptive act for the purposes of the CPA, it is a crime in both Washington and California for a notary to falsely notarize a document. In Washington:

Official misconduct—Penalty

(1) A notary public commits official misconduct when he or she signs a certificate evidencing a notarial act, knowing that the contents of the certificate are false. Official misconduct also constitutes unprofessional conduct for which disciplinary action may be taken.

(2) A notary public who commits an act of official misconduct shall be guilty of a gross misdemeanor.

RCW 42.44.160; see also Cal. Gov't Code § 6203 (criminal) (“Every officer authorized by law to make or give any certificate or other writing is guilty of a misdemeanor if he or she makes and delivers as true any certificate or writing containing statements which he or she knows to be false.”). A notary jurat is a public trust and allowing them to be deployed to validate false information strikes at the bedrock of our system. We note that Washington state asserts criminal jurisdiction over any person “who commits in the state any crime, in whole or in part” or “commits an act without the state which affects persons or property within the state, which, if committed within the state, would be a crime,” among many other things. RCW 9A.04.030(1), (5). Gross misdemeanors are crimes under our criminal code as long as **1191 “a sentence of imprisonment is authorized.” RCW 9A.04.040(1) ( “Crimes are classified as felonies, gross misdemeanors, *794 or misdemeanors.”). RCW 9.92.020 assigns a penalty of up to 364 days for gross misdemeanors not otherwise classified, like this one.

          ¶ 43 This court has previously considered a case with striking similarities. Meyers v. Meyers, 81 Wash.2d 533, 534, 503 P.2d 59 (1972) (notary who notarized forged signatures on a forged deed answerable in negligence to subsequent purchasers). In Werner, California notaries affixed their jurats to forged documents conveying real property situated in Washington. An issue before us in Werner was whether Washington had jurisdiction over the California notaries in a civil suit to hold them accountable for their actions. We held Washington did have jurisdiction and that a notary may be personally liable to those injured by the notary's failure to determine the identity of those whose signatures they notarize. We observed:

The whole of our system of title registration hinges upon the integrity of the documents which comprise it. As in the instant case, the corruption of that system may cause substantial economic loss to the parties involved. The notary, as a public officer, has a duty to take reasonable precautions to assure that his seal will not be the vehicle by which a fraudulent transaction is consummated. In our opinion, therefore, the State of Washington has the power to extend its jurisdiction to reach the nonresident notaries in this action. We hold that, consistent with due process, RCW 4.28.185(1)(b) encompasses the tortious actions of nonresident notaries when a notarized forgery is affixed to a document affecting interests in immovables. Cf. Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., 66 Wash.2d 469, 403 P.2d 351 (1965).

Werner, 84 Wash.2d at 367, 526 P.2d 370. We noted that without the notary's acknowledgement, the documents would not have been valid.15 Id. at 366, 526 P.2d 370.

          ¶ 44 We hold that the act of false dating by a notary employee of the trustee in a nonjudicial foreclosure is an *795 unfair or deceptive act or practice and satisfies the first three elements under the Washington CPA.

          ¶ 45 The trustee argues as a matter of law that the falsely notarized documents did not cause harm. The trustee is wrong; a false notarization is a crime and undermines the integrity of our institutions upon which all must rely upon the faithful fulfillment of the notary's oath. There remains, however, the factual issue of whether the false notarization was a cause of plaintiff's damages. That is, of course, a question for the jury. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 314, 858 P.2d 1054 (1993) (citing Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wash.2d 747, 753–56, 818 P.2d 1337 (1991)). We note that the plaintiff submitted evidence that the purpose of predated notarizations was to expedite the date of sale to please the beneficiary. Given the evidence that if the documents had been properly dated, the earliest the sale could have taken place was one week later. The plaintiff also submitted evidence that with one more week, it was “very possible” Puget Sound Guardians could have closed the sale. This additional time would also have provided the guardian more time to persuade WaMu to postpone the sale. But given the trustee's failure to fulfill its fiduciary duty to postpone the sale, there is sufficient evidence to support the jury's CPA violation verdict, and we need not reach whether this deceptive act was a cause of plaintiff's damages.16

 

Klem v. Washington Mut. Bank, 176 Wash. 2d 771, 792-95, 295 P.3d 1179, 1190-91 (2013).

 

Rob

 

 

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

 

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Katharine P. Bauer
Sent: Tuesday, December 29, 2015 1:32 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] notary seal

 

I have a deed that has been notarized and the notary has dated his signature.  However, the seal used is not the current seal, but one from 6 years in the past.  He has access to the newer seal.  Do we need to re-record after it is restamped?  What if it wasn't a deed ?


 

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Katharine P. Bauer

Bauer Pitman Lifetime Legal, PLLC
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