By Peter Van Alstyne—If you don’t want to hear some straight, hard-hitting talk about what a notary must do, then don’t read this article. If that happens to be you, it’s ok. But, be smart and resign your notary commission after you finish this article from The Notary . This article is going to say it the way it is without apologies or back-peddling. For starters, read this:
A notary public in America must keep a notary journal record of every notarization she performs.
If you are still reading this, you will have to agree that the above statement is simple and easy to understand. The problem is, too few notaries really adopt the concept and do something about it. Too few notaries in America journalize their notarizations. Too few notaries and their co-workers and their employers agree with this principle. Even some lawyers will tell you its hogwash. It is all right. Some of life’s most important rules of conduct receive the worst belittlement.
The excuses for not keeping a log of notarizations are plentiful. Some are understandable, and some are totally off the wall. For example, an understandable excuse would be, “my boss prohibits me from keeping a journal.” That poses serious issues for the unfortunate notary. An example of an off-the-wall excuse would be, “a notary journal can be used to incriminate me for things I do wrong.”
Excuses, excuses. That is all they are. None of them are legitimate. None of them will let a notary off the hook.
What is a Notary Journal?
A notary journal is a written record of every notarization you perform. Everything you record in your journal shall be deemed factually true in a court of law.
Record-keeping has been required of businesses, professionals, and government for centuries. Business records are indispensable to the safe and orderly flow of commerce and law. Record-keeping is a cornerstone to the stability of society. Imagine our society without records:
- On your next visit to your physician, how will he measure your recovery from a medical condition he was treating? (You will have to tell him!)
- Your accountant is ready to claim a major tax deduction on your behalf. Is the IRS going to take your undocumented word for the deduction? (Yeah, when pigs fly!)
- When you deposit your next pay check into your savings account, you needn’t worry. A receipt and record of the deposit isn’t needed! The bank teller can keep it all straight in her head. She can remember how much each person deposits and into which accounts they belong. When you go to make a withdrawal, just speak with your teller whose mind is like a bank vault of information. (If you believe that, you probably believe that the tooth fairy is real.) (Huh? She isn’t???)
Yep, record keeping is just an old fashioned tradition. NOT!
A notarization is as valuable and important to the person you serve as your bank deposit is to you. It is a legal transaction of profound legal weight and consequence. People are depending on your notarization to be truthful. They are taking business risks based on your notarization. Your notarization is the only thing they can rely on to ensure the signers to a document are who they claim to be and that the signatures thereto are genuine. Notarizations are no small matter. Keeping a record of them is not discretionary. It is the only proof prescribed by law that constitutes prima facie evidence your notarization is truthful and legally valid.
The notary journal proves:
- the person for whom you notarized personally appeared before you;
- that you took every reasonable step to verify their identity as provided by your state’s notary law;
- the signature you notarized is genuine and belongs to the person who claims to own it.
There are additional facts that are required to substantiate the verity of the above three facts, such as the time and date when you notarized, how you identified the signer, what type of notarial act you performed, what type of document the signer signed that bears your notarization, and other supporting facts.
Arguably, a notarization is not complete without the supportive documentation thereof in a notary journal. An undocumented notarization is set of assumptions you are asserting to be true. You have no legal authority to make such statements under your notarial authority. You are authorized only to assert facts you know to be true in your notarization. If the notarization is supported by a journal record, then you are stating a set of facts that you assert (and can prove) to be true.
My state notary law doesn’t say a journal is required.
Most state notary laws do not specify that a notary journal is required. Most state laws do not specify that parents must feed their children three nutritious meal each day. However, if they do not, they can be criminally charged with child neglect. Your state laws do not and cannot specify every detail of every aspect of your life or responsibilities. That is why the case law and procedural rules of the courts are applied.
The state notary statutes are not the entire notary law. You are governed by case law authority, along with the rules of civil procedure and the rules of evidence. Your notarizations are documents of law performed under rules of law. Moreover, you are required to exercise reasonable care in the performance of your notarial duties. Keeping a notary journal record is a paramount, non-discretionary mandate under the rule of reasonable care.
Any person who tells you that keeping a notary journal isn’t required by law or by your state simply does not understand. They are absolutely incorrect, albeit well-meaning. Such advice makes no sense. It is inconceivable.
Your notary journal record constitutes a “business record exemption to the hearsay rule” under the rules of evidence. Everything recorded therein is automatically deemed factually true. It protects the people for whom you notarize. It protects your employer when you notarize at work, and it protects you personally from risk of legal liability. The notary journal will guide you through the correct steps of a lawful notarization. It will prevent you from notarizing falsely, which is a criminal violation in every state. Your notary journal will rescue you from unfounded accusations of wrongdoing.
The old cliche, “if it isn’t written, it didn’t happen,” is a fundamental principle. Appropriate and consistent record keeping is the surest form of evidence that a notarization was performed truthfully and correctly.
In the law, the courts look to “evidentiary facts” to prove the primary facts of a matter, or what are called “ultimate facts.” In notary law, the ultimate facts are whether or not a signature is genuine, made willingly and freely by its maker. Under the law, the document signer has the burden of proof of these ultimate facts. The notary is the vehicle established by law for the signer to use in proving these facts. The notarial certificate is accepted in law to satisfy the signer’s burden of proof of signature authenticity.
The ultimate facts are proven in law by evidentiary facts; facts which are probative to prove the ultimate facts. The notarial certificate is the ultimate fact that the document signature is genuine. The notary journal provides the indispensable evidentiary facts to prove the notarial certificate is true and correct.
Failure to keep a notarial journal is a frustration to the system of law, in which the notarial process is immersed. A notary’s failure to provide the evidentiary facts to prove the ultimate facts is serious.
As a notary, master your understanding of the legal purpose and function a notary journal plays in the system of law. You are under oath of office as a notary to do so. Your competence and understanding of these principles will reward you over and over.
Recommended reading: Van Alstyne’s Notary Public Encyclopedia, “Notary Journal”