By Marlene Miller—Bouvier’s Law Dictionary, Revised Sixth Edition, 1856: “By signature is understood the act of putting down a man’s name, at the end of an instrument, to attest its validity.” A USNA member recently called to ask what he should do in the following situation. A customer presented an identification document (ID) on which her signature showed her last name with first and middle initials. However, she had signed the deed she presented for acknowledgment with her first name, a middle initial and her last name. Her signature in the notary’s journal was a scribble. The customer told the notary that her legal signature was the one on her ID, her signature on the deed was mandated by the lender, and the signature in the journal was simply “quicker.”

Another member faxed USNA a form with the words “Legal Signature” printed below a signature line. She questioned which of her signatures she was supposed to use: the signature on her driver’s license, which used initials for first and middle names; the signature on her notary commission, which used a full first name and an initial for her middle name; or the signature her lender required when she refinanced her house—her full first, middle and last names.

Many of us have had the experience of having to sign different signatures from what we believe to be our legal signature. In most states, we have to sign with full first names when we apply to become a notary and for every written notarial act after we are commissioned. When we buy houses, we are usually instructed to “sign as printed” with our first names, middle initials and last names, or perhaps with full middle names. However, our driver’s licenses—often mistakenly believed to show our legal signatures—often contain signatures that do not match any of the signatures we have been instructed to write.

The Elusive Legal Signature

A legal signature is defined by Black’s Law Dictionary, seventh edition, as a person’s name or mark written by that person or at the person’s direction. Title 1 of the U.S. Code defines signature or subscription to “include a mark when the person making the same intended it as such.”

The Uniform Commercial Code (UCC) as authored by the National Conference of Commissioners on Uniform State Laws does not define a legal signature. Instead, it defines a signature on a negotiable instrument as “any name, word, mark or writing used with the intention of authenticating a document.” It further states that a signature may be handwritten, typed, printed or made in any other manner, and that a signature could appear in the body of an instrument rather than on a signature line [UCC -1-201(30), 3-401(b)].

The UCC also states that its own description of a signature is “not intended to affect any other law requiring a signature by mark to be witnessed, or any signature to be otherwise authenticated, or requiring any form of proof.” [UCC -3-401, Official Comment] So if your state laws, rules or regulations require a specific form of a signature, that requirement takes precedence over the UCC. In Oregon, for example, one of the requirements for certifying petition signature sheets is that hand-printed signatures are not acceptable without proof that the signer customarily signs that way. Issuing such requirements is completely within the scope of a state’s authority.

Interpretation of federal and state statutes covering signatures is usually determined by a court’s ruling when a document is challenged on a signature issue, such as an invalid signature. A collection of these rulings is referred to as case law and may be used to establish precedence in deciding subsequent cases.

Some examples of case law have determined that:

  • Initials or even a mark are acceptable forms of signatures in Indiana as long as they are properly executed [Steven Brewer v. State of Indiana, 1993].
  • A memorandum that did not contain any signatures of the company owners was signed within the meaning of a New York statute because the printed firm name appears at the top of it [Morris Pearlberg v. Julius Levisohn and Samuel Levisohn, Copartners, 1920].
  • A typewritten signature is permissible under New York State General Construction Law [L&B 595 Madison Inc. v. Susan Sheehan Inc., 1994].
  • The printing of a New York City undercover police officer’s shield number on a supporting deposition in lieu of a handwritten signature constitutes a legal signature [People v. Mercado, 1984].
  • An illegible signature of a Wyoming testator does not prevent it from being a legal signature as long as he was knew what he was doing when he signed his will [In Re Iverson’s Estate; Hawkins, et al. v. Elster, et al., 1929].

A ruling in one court case does not automatically apply to all other like situations. For example, just because a New York court ruled as they did in People v. Mercado in 1984 (see above) does not mean that every undercover police officer in every city in the country can print a shield number on supporting depositions instead of signing with a handwritten signature. Each case must be decided on its own merits.

So What is a Notary To Do?

Even if you are armed with a solid definition of a legal signature—and remember, there is no such thing—you cannot be expected to research statutes and compile case law while a customer is standing before you waiting for you to perform a notarization. How do you proceed when faced with a variety of signatures from the same individual?

  • Ask for ID that meets the requirements of your state. If your state requires an ID from your customer that contains a signature, make sure you get one before you notarize.
  • Review the document or documents you are being asked to notarize. If the document requires that your customer sign in your presence, instruct him or her to do so.
  • If you are using an ID with a signature, compare the two signatures. If they match in appearance but not in form—e.g., one uses initials, but the other doesn’t, or some other variation—you may ask your customer to sign your journal or a separate piece of paper with his or her signature as shown on the ID for comparison purposes.
  • If the document has already been signed and requires an acknowledgment, you may still ask your customer to sign your journal or a separate piece of paper for comparison purposes.
  • Comparing signatures is only a precaution you can take to deter fraud. It is not your responsibility to determine what your customer’s legal signature is. Any mark your customer makes on the document—or any mark made by another individual at your customer’s direction—with the intent to execute the document is considered to be a signature. However, any comments you make about a customer’s signature, or any explanation you give to the customer about legal signatures, may be considered to be offering legal advice, which a notary may not do.
  • For Notary Signing Agents

    Notary signing agents (NSAs) are often instructed by signing services, lenders and title companies to tell the borrower to “sign as printed.” The borrower’s printed name is often not the same in form as the borrower usually signs. For example, you have been instructed to have the borrower sign with full first and last names and an initial for his middle name. The borrower argues that his legal signature contains initials for both his first and middle names and points to his driver’s license to show you.

    Here’s what you can do in this situation:

    • Don’t argue with the borrower about what is or is not a legal signature. Don’t try to explain that a definitive legal signature does not exist. This may antagonize the borrower and may cause him to cancel the loan. It is also offering legal advice, which a notary may not do.
    • Calmly explain to the borrower that you have been instructed by the lender to have him sign in a certain way. If he chooses to sign another way, it may delay the closing and he won’t get his loan as soon as he might have hoped.
    • Suggest that the borrower call the lender to verify the instructions. Hearing the same instructions from the lender often convinces the borrower to sign as required.
    • If the borrower still insists on signing his way, calmly and politely finish the signing. The more important issue in signing loan documents is that the borrower’s signature be consistent on every document of the loan package.
    • >When you return the loan documents, include a note explaining the situation about the signatures. Experienced NSAs say that when the lender realizes how hard you tried to comply with their instructions, they are not as quick to blame you when those instructions have not been followed.

    You, as a signing agent, are with the borrower to facilitate the signing and help it go as smoothly as possible. You, as a notary, cannot tweak the Notary Public Law just to get the signing done as the lender instructed. As a notary signing agent, you can do both jobs responsibly and professionally.