[WSBAPT] notary seal

[Katharine P. Bauer]

Thanks Rob!!!

On Tue, Dec 29, 2015 at 1:58 PM, Rob Wilson-Hoss <rob at hctc.com> wrote:

> 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 <http://www.hossandwilsonhoss.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 n*ot 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 ?
>
>
>
> --
>
> Katharine P. Bauer
>
> Bauer Pitman Lifetime Legal, PLLC
> 1235 Fourth Ave. East, Suite 200
> Olympia, Washington 98501
> tel. 360.754.1976
> fax. 360.943.4427
>
> e-mail: kpb at bpblegal.com
>
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-- 
Katharine P. Bauer
Bauer Pitman Lifetime Legal, PLLC
1235 Fourth Ave. East, Suite 200
Olympia, Washington 98501
tel. 360.754.1976
fax. 360.943.4427

e-mail: kpb at bpblegal.com

This message is confidential and may be protected by the attorney-client
privilege; it is intended solely for the use of the individual named above.
If you are not the intended recipient, you are hereby advised that any
dissemination, distribution, or copying of this communication is strictly
prohibited. If you have received this e-mail in error, please immediately
notify the sender by telephone or e-mail, delete this message from your
files, and return any printed copies to the sender by U.S. mail. Circular
230 Disclosure: Any tax advice contained in this communication (including
any attachments) is not intended or written to be used, and cannot be used,
for the purpose of (i) avoiding penalties that may be imposed under the
Internal Revenue Code or (ii) promoting, marketing or recommending to
another party any transaction, arrangement, or other matter
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