Based on a Discussion by Email of the

Property Records Industry Joint Task Force

Standards Committee

Carl R. Ernst, Chair

January 23, 1999

Note 1-This paper is published for discussion only. Papers must contain the notation "Approved by the Executive Board of the Property Records Industry Joint Task Force on [date]" to represent an official paper issued by the Task Force.

-----Original Message-----

Sent: Wednesday, October 28, 1998 12:31 PM

To: cernst@iname.com

Subject: Request for info

Also, have a question regarding how many States accept laser generated signatures on documents. This has come into question recently in regards to assignments that have been sent to NH for recording and have been refused because of the laser signatures. I know this has been discussed at the NACRC meetings but can't seem to get my hands on the info...The NH Registers of Deeds Assn. took a vote a few years ago Not to accept the laser signatures. NH Law requires original documents and with that, we assume it to also mean original signatures. Any help on this would also be appreciated.

Thanks.

Mail to: Kathi L. Guay, Register

Merrimack County Registry of Deeds

PO Box 248

Concord, NH. 03302-0248

Thank You! That's a good question. I will have my staff (Liz, that's you) conduct a survey and get back to you and other states' recorder associations with an answer for each state.

The general form of the question we will use is,

"What form of signature do your recorders accept:

(1) Original only (as determined by recorder)

(2) Original and (check acceptable ones)

(a) stamp of signature

(b) laser printed signature

(c) a mark (e.g. X)

(d) what else? _______________________________

(3) Anything, as long as properly notarized

If (1), how do you determine what an "original signature" is?

If (2)(b), how do you tell what is a "laser" signature?"

I am told by my attorney friends that it is accepted law that the concept of "signature" is not what you and I as laymen think it is. It is not just the cursive, written in ink name we think of.

The argument that the definition of "original document" includes a concept of "original signature" probably does not hold up under careful scrutiny. It might be better to consider the concept of original document as tied in with the legal requirement for acknowledgement of signatures by a notary. Looking at the issue that way, you could say that any document that meets the requirement of the notary statute is an original document. Then, the issue of the form of the signature goes away altogether!

Here are some questions for your recorders to ask themselves regarding this issue.

(1) How do you know that a signature is the "original?" There are people passing millions of dollars of fake paper money in the US today who have used laser printers and copy machines to make the money. Is your staff expert in determining the real thing from a "copy."

(2) Let's say that all of your staff has taken a course in "original signature detection." Are you as a recorder then placing yourself in the position of being a legal guarantor that the signature is original? Do you want to be in such a position?

(3) Let's say that the course tells you, as some recorders I am told now do, to wet you finger and run it over the signature to see if it smudges. (This is probably the only go way to do the test.) But smudging a signature is altering a document. What gives a recorder the right to alter a document? What is the document later ends up in court and it is decided that the smudged signature is invalid because of your action?

(4) During this refinance boom, do you think that a bunch of bank Vice Presidents are sitting at their desks signing the 10 million new mortgages, assignments and releases that will be recorded this year? That's a lot of writer's cramp.

(5) Assuming the "signature" is properly notarized, how can you justify rejection in any case?

(6) Whose job do you think it is to define what an original document or an original signature is? Yours? The courts?

I'd be interested in the reaction of your recorders to this issue at their annual meeting, and whether they are willing to officially change their position on original signatures.

To: Members of the Standards Committee of the Property Records Industry Joint Task Force I am finishing up the second drafts of the papers discussed at our very successful meeting on October 8-more than 20 people attended and discussion of issues was lively-and will make the new drafts available on the web site in a few days. I'll let you know when they are available for review. One of our purposes is to encourage communication of issues among members of the standards committee and the Task Force. I received the following message today from a recorder in New Hampshire and thought it was timely enough to share my response to her with all of you. I encourage anyone-public or private sector-who has a view on the "signature issue" to reply with their thoughts to me by 11/15. I will put together your thoughts, share them with the whole committee, and if you wish, put together a paper on the issue for the whole Task Force to consider.

See my response below the message.

Carl:

As a elected county clerk/recorder with almost 17 years in office it

amazes me how many officials want to serve as judge, jury and

executioner. As a recorder, our responsibility is generally ministerial with some quasi-gatekeeper authority. The answer to your question in my county is (3), that is,

Anything, as long as properly notarized. Under Texas law most documents recorded do not have to be originals (copies are acceptable), do not have to bear an original signature or mark as long as it is properly acknowledged. I leave the "original signature" issue to a court of law. My staff accepts all documents that follow statutes (Texas is a minimal state according to Carl's standards).

Such issues involving originality, effectiveness, timeliness, etc. should remain a matter for the court's not $5-$10 an hour full or part time recorder employees. By following the written law and not creating extra interpretations puts recorders on the safer side of due diligence that carries less liability. If the written law places a burden on the recorder to be a handwriting expert, that state recorder's association should lobby to take that liability off its shoulders. Why would they want that responsibility anyway? And please, no courses in "original signature detection." We used all of our spit to survive the drought this summer! However, this month we have plenty of floodwater to wet lots of fingers but the only smudging we do is the embossed notary seal.

Hope my comments help to open the gates of some recording fiefdoms.

Dianne Wilson, County Clerk/Recorder, Fort Bend County, Texas

Carl,

With regard to signatures for the Standards Committee, I have no strong opinion about their being required on UCC filings. Since the filing is a notice, and not a recording of the original debt and security instruments, and since there are provisos for corrections by both secured party and debtor, I don't see that signatures are all that important. On the other hand, signatures as a condition to access the filing system electronically, might prove useful . . . especially electronic or digital signatures. I will reserve my discussion on signatures for standards on recordings at the county recorder level.

As to the NH message attached, states differ on these facsimile signatures. In fact, that differs within states. Florida, for example, does not approve facsimile signatures for notaries unless the notary has some disability that would prevent her from signing. State officers are specifically empowered to use facsimile signatures. The 1996 Digital Signature Act defines electronic signatures as any combination of letters, characters or symbols a signer attaches to a document with the intent to authenticate it. That language is very close to the language used in the UCC statutes (both Florida's and the model act). I believe NC modified its notary act this summer and specifically rejected non-original signatures, while authorizing digital signatures in dealings with the government. GA, UT, VA and WI recently passed legislation authorizing use of digital signatures by notaries.

An original signature and an original document are two different things. An original document does not necessarily require an original signature. I refer members to Benjamin Wright's book: "The Law of Electronic Commerce." He devotes several chapters to signatures and documents.

I think anyone attempting to come to terms with signatures needs to first understand what one is and why we use them. The most important thing for Ms. Guay, and recorders in other states, is what do the laws and court cases in NH or your respective states say about signatures.

John L. Jones

Carl: I have to agree with my colleague in the great state of Texas (Dianne Wilson). As long as the document is acknowledged, if needed, then my obligation is to record, not to "spit" test it, x-ray it, drop kick it or anything else. The UCC (specifically under negotiable instruments) gives ample support for the fact that a signature can be made manually, by machine or device or as a word, mark or symbol "by a person with present intention to authenticate a writing." (3-401) The burden of contesting a signature is also covered by the UCC under 3-308. If most states have adopted some form of the UCC, then I guess those particular recorders will have to follow their state's direction. (After all, we have to admit that even though the UCC is supposed to be "uniform" it never will be as long as we have 50 states who have their own particular interests.) In Colorado we also rely on the Uniform Recognition of Acknowledgments Act (found just before a rousing discussion on Outfitters and Guides) to provide further direction. As a Recorder I don't have the time to gaze into my crystal ball to figure out if someone intended to sign a document manually, digitally, or mechanically.

(A thoughtful recorder from Michigan, takes the other side of the signature issue:)

The italicized text is Mr. Ernst?s original notes. Joyce responds to each item:

The argument that the definition of "original document" includes a concept of "original signature" probably does not hold up under careful scrutiny. It might be better to consider the concept of original document as tied in with the legal requirement for acknowledgement of signatures by a notary. Looking at the issue that way, you could say that any document that meets the requirement of the notary statute is an original document. Then, the issue of the form of the signature goes away altogether!

Wouldn't the notary be acknowledging that they had before them a copy? Could they really be able to acknowledge a "signature" when no one was signing in the immediate instance. Would we need to change the "acknowledgement" language and form? How 'bout the following:

Yup, that's a copy!

If this is getting so difficult, maybe we could demand that blue ink be used. It would show up really nice - especially if the ink on the printed form is black.

If you can't stand the heat, stay out of the records vault.

You don't toss a bucket of water on the signature and rub like you're removing denture stains. If you are obliterating the signature, you are doing it wrong!

(4) During this refinance boom, do you think that a bunch of bank Vice Presidents are sitting at their desks signing the 10 million new mortgages, assignments and releases that will be recorded this year? That's a lot of writer's cramp.

Why should recording officials be the only ones experiencing pain from the refinancing boom? With the points they charge, the least I should be able to expect is a real signature from my banker. I work for my money, shouldn't they for theirs? If I cry too much over their writer's cramp, I won't have enough moisture left to spit on their signature!

(5) Assuming the "signature" is properly notarized, how can you justify rejection in any case?

QUESTION:

What is the notary doing saying that someone personally appeared before them and executed a document if they didn't observe a real person whose identity they have checked applying a pen to the paper? Do any states have "Laser Notaries" and do they resemble Luke Skywalker or Princess Leah? Will the "Laser Notary" sign by laser imprint or will their signature need to be an original? Is a laser signature better than a rubber stamp? Why should anyone sign? Couldn't we just use a thumb print or is that too messy? Will I be able to sleep tonight with these weighty matters running through my head?

(6) Whose job do you think it is to define what an original document or an original signature is? Yours? The courts?

If you could record copies, several copies of deeds would get recorded and clutter up the record. If there is a discrepancy between the several copies of the deed that got recorded, which would be the acceptable one...once it is microfilmed or scanned, you can't tell from the image which is the deed that contained the original signature. The one with the original signature would have a greater probability of being the version that the seller signed, but you couldn't tell from the images which was which. In our county, judges have enough to do keeping criminals behind bars. While attorneys have every right to earn money any way they can, they are the only ones who would benefit from the situation I have described. Checking for an original signature is relatively simple and is a much better use of my tax dollars than having highly paid judges listen to highly paid attorneys argue over which image is the real one!

However, I will take these questions to the Registers in Michigan and see if they react in a more kindly fashion.

(Alaska is the only state with this designation. I asked Sharon to summarize how the recording system works in Alaska so you can understand her unique situation. She wrote):

The recording system in Alaska is operated by the State of Alaska. We do not have counties; while there are a number of organized boroughs within the state, recording functions do not operate through them. Instead the state has created thirty-four separate "recording districts" that encompass the entire state, and these form the jurisdictional boundaries for all documents required or permitted to be recorded in a specific district. We have fourteen offices throughout the state, so many of these offices process documents for multiple recording districts. There are district recorders at each office, and recorder managers who supervise three regions within the state. As state recorder, I oversee all of the state's recording operations, as well as the UCC central file system in Alaska. This is often a daunting task, given the fact that Alaska is such a huge state (it's more than 1100 miles from my office in Anchorage to our Nome location and nearly 800 miles in the other direction to our most southerly location in Ketchikan!).

With that background, here are her comments on the signature issue:

Carl, I concur with the discussions relative to accepting the document when the document is acknowledged, even if the signature may not meet the recorder's subjective view of what is "original."

Here in Alaska, our statutes do require, as they do in many, if not most, other jurisdictions, that every document submitted for recording contain an "original signature". Our statutes also delineate the few specific document types that are required to be acknowledged (conveyances, powers of attorney, etc.). In these instances, the notary attests that the document was executed in his/her presence and we accept that fact as confirming that the signor's signature meets the requirement of being an original signature.

For document types not required to be acknowledged, our recorders still attempt to determine originality of signature (based on color of ink, impression into paper, or the infamous "smudge" test), because our statute requires that an original signature must appear on the document before it can be recorded. Our customers are familiar with this requirement and because of this, we rarely reject a document for this reason.

When our recording statutes were liberalized a few years ago to eliminate the many ambiguities and conflicts that historically forced Alaska's recorders into the role of operating as "document police", the original signature requirement was one requirement that the legislature left intact. However, in today's world of rapid technological advances, determining whether a signature is "original" is as difficult as distinguishing between diamonds and cubic zirconia with the naked eye! The faster that recording jurisdictions move away from document policing activities such as this, the better the public will be served.

Sharon Young, State Recorder, Alaska

-------------------------------------

Name: Sharon Young

E-mail: Sharon Young <sharony@dnr.state.ak.us>

Date: 11/03/98

Time: 10:50:08

-------------------------------------

Response from Walt Wileman

Orion Financial Group, Inc.

Sharon, thanks you for your thoughts on e-signatures. In Texas, if the notary "has knowledge" that the signature is valid it is not necessary to "appear before". Most recorders have been very receptive to e-signatures, but some still do the "smudge" test you mentioned. Thanks again for your comments.

(Our UCC guru on the Standards Committee, will admit to being an attorney. He has been involved in the discussion of signatures with respect to the Uniform Commercial Code for the past 6-7 years, and is also an independent observer of our discussions of real estate related matters. Here is his contribution.)

I have read with interest the dialogue regarding signatures on recorded documents. My thoughts (for what they are worth - i.e., priceless to those who agree with me and worthless to those that don't) are as follows:

There is a major distinction (maybe) between signatures on most recorded documents and those on UCC financing statements. UCC filings are merely notice filings. They are not documents that create legal rights between parties.

Yes, it is true that the filing of a financing statement serves to perfect a security interest and protects the secured party from the bankruptcy trustee and from subsequent creditors, but the operative document that creates the security interest is the security agreement which still must be "signed" by the debtor. [I add quotation marks because revised Article 9 speaks in terms of an authenticated record, not a signed writing, thereby enabling electronic commerce - which raises the same issues raised by signature requirements for other recordable documents like mortgages and deeds - more to follow.]

The financing statement is merely a notice to the world that a secured party may have a security interest in the described collateral. It does not inform the searcher as to the nature of the underlying deal or the amount or type of obligation that is secured.

Accordingly, Revised Article 9 takes the position that debtor signatures on financing statements can and should be eliminated. The burden of checking signatures (and they are not notarized so how can the filing office to anything to verify them?) outweighs the possibility that such checking could eliminate unauthorized filings (it cannot do so). Revised Article 9 provides other procedures to solve the unauthorized filing problem by allowing for correction statements to be filed, by having all filings remain of record for one year after they lapse, by allowing filings to be readily amended, by giving statutory damages to debtors when secured parties fail to terminate filings where there is no outstanding obligation and no obligation to make future advances, and by calling for states to ensure (through other law) that unauthorized filing activity is criminal.

Real estate documents are operative documents and the recording system, by requiring the original to be recorded, offers searchers a full set of information as to the nature and scope of the underlying transaction. There is also a title searching mechanism inherent in the system. The UCC filing system makes no attempt to be a record of who owns what personal property.

Accordingly, I hope we would all agree that however important signatures are in the real estate world, they need not be important in the UCC world.

I also do not purport to argue how recorders should act under current law. Each state has its own laws governing recording and those laws are necessarily upheld by recorders. Those laws may be more or less rational, or not rational at all, but until changed they are the laws to be followed. But let's focus on the question of what should the law be.

Once upon a time, it was thought by many that recording offices could serve as repositories of the definitive information as to ownership of real property and the nature and extent of other interests (such as liens and claims) therein. Some states made unrecorded conveyances completely ineffective (at least outside of equity - courts always seem to find a way to do rough justice when inequitable conduct has occurred). But such laws led to "races to the courthouse" when unscrupulous owners would try to sell identical or overlapping interests to more than one party.

Other state s thought to have the recording system act as a notice system or some combination of the "race" and "notice" functions.

Regardless of purpose, the fact remains that the recording office cannot ensure that its records will always reflect what is the legal outcome of priority and ownership disputes. There are always matters of equity that will never be reflected in the system. Even the most scrupulous signature checking cannot stop forgery.

I am certain that no recorder wishes to take responsibility of representing that all recorded documents are genuine and are in fact what they purport to be.

Given that documents may have been forged or that copies as opposed to originals may have been erroneously accepted for recording and the fact that microfilm records do not inform a searcher as to the apparent validity of a document, it seems that the only position a searcher can take is to assume that everything that appears of record is genuine and a potential encumbrance on title.

As far as I know, recorders do not examine documents to ensure that they are legally sufficient. They do not always check legal descriptions. They do not ensure that all warranties are obtained in each deed. They do not ensure that the tax escrow in a mortgage is adequate or that it complies with consumer laws. They do not ensure that all rights related to the land in question are conveyed. All these matters are left in the hands of the parties.

All recorders are doing by checking signatures (leaving aside the rare cases where they know the parties to the transaction and can recognize signatures) is verifying that the document presented is an "original" solely to the extent that it and the notarial acknowledgment were signed in ink and are not photocopies. They cannot verify a lack of fraud or forgery. They cannot verify whether the mortgage loan has been funded or the consideration for a deed in fact paid. They are merely requiring forgers to forge "originals" instead of photocopying a forgery or transmitting a facsimile of a forgery.

Fraud doesn't happen that often. That is not to say that it doesn't happen regularly, but it does not occur in the vast supermajority of real estate transactions that lead to recordings of documents. Usually the banks, attorneys, title companies and parties involved are honest.

I would estimate that, like most other situations, the biggest deterrent to fraud is not the crooks inability to forge a signature (that the recorder wouldn't recognize as a forgery anyway), but the fact that a number of people usually need to be involved in a real estate transaction due to its nature and complexity involved, a unless a forger is very capable and knowledgeable (and no one can stop such persons), it's hard to get others to be a party to a fraud. Other protections against fraud include the relative inability of a forger to get possession of a piece of property so as to be in a position to one's self out as an owner to a lender or buyer.

I believe the only reason to require original documents to be recorded is to prevent fraud. Notaries are the vehicle to try to ensure that the signatures on the document were made by the people the documents suggests made them. All the recorder can do is determine that the signatures are in smudgable ink (or is it not in smudgable laser form?). Fraud is a low-incidence event and courts are required anyway to solve the problems created by fraud. Even when fraud is on the agenda, signatures are easily forged and notary seals are easily purchased or forged. As long as we require all the formalities to be observed between the parties with respect to the original document, why require the original to be recorded?

I have no doubt that fraud is a serious problem, but I have serious doubts that the recording system can stop it.

I would be curious to know how many fraudulent documents have been discovered by recorders. If we knew the answer to that question we could compare the savings against the enormous cost of recorders' intake procedures, of rejected documents that need to be re-submitted, of the inability to handle recordings electronically or by fax (the cost to FedEx originals all over the country), and of maintaining systems and/or advisors who can respond to an ever-changing array of non-uniform procedures.

Shouldn't the recording system become more like the UCC? Shouldn't it be a notice system only? Don't the courts necessarily get involved in real estate disputes anyway and aren't they in a better position to determine whether a copy is bona fide or not?

Once upon a time, it may have true that originals were recorded and retained in the recorder's records. That would serve the purpose of allowing the original to be later examined by a court. But that advantage has disappeared in the age of microfilm and imaging.

Having rambled this far, let me assure the reader my mind is not yet made up. Real estate, unlike UCC's, is forever. Maybe there is some merit in creating the presumption in favor of the filer when the recording system assures that a purported original was reviewed by the recorder, especially as there may be no original to be found many years later when the matter is litigated. It may also be the case that the parties who could have authenticated any copy are no longer living, but we have the government's assurance of sorts that a purported original once existed. Is this really helpful? Or are we only making sure that forgers forge originals?

I think it is important here to note that no one is advocating that the recorder's office accept anything but an original document. We are talking about "signatures". I have six notaries. They all know my signature and they know it is in the computer. In Texas, you do not have to "appear before" , the notary just has to have "knowledge" of the signature.

As I have said before, once the recorder's office "copies" the document and returns the original, who knows how the signature was affixed?

I really appreciate all the help I get from most recorder's office. To date we have only encountered 102 offices that question the e-signature (which is what I call my computer signature). Maybe a temporary answer is to have an "original" on file like a power of attorney.???????

Carl Ernst asked the two associations representing notaries to comment on Mr. Wileman?s statements regarding "appear before" and "knowledge." Here are their responses:

Lisa summarized the notary?s duty as follows:

Carl, by now you have received John's and my email outlining some notary 101 teachings. I wanted to correct Mr. Wileman's assumption that "if the notary "has knowledge" that the signature is valid it is not necessary to "appear before." Personal appearance is the Golden Rule of a proper notarization. In a handful of states, a witness can swear they saw someone sign a document, but that is not a practice observed by Texas officials in the Secretary of State's office-the office that regulates notaries. Please pass on the Golden Rule. Thanks, Lisa Fisher.

John Jones addressed the questions put to him by Carl Ernst in some detail, as follows:

Lisa Fisher and I collaborated on the questions you asked and offer you the following... If you want to roundtable it some more, give Lisa a call at 850/671-5164.

Question: Are there differences between the states in whether the notary must use "come before" language or "known to me" language.

Answer: These are two different issues. Every state requires the person giving an acknowledgement or taking an oath to personally appear before a notary. One of the things the notary does while the person is before them is to prove identification. That's done by either producing sufficient ID or by being personally known to the notary (or in some cases, to a witness or witnesses who are also present). The "come before" is the doctrine of personal appearances.

Question: Can a facsimile signature (e.g. laser-generated) can be >used in a "Known to" state but not in the other unless the person (e.g., bank officer) comes to the notary > with a stack of laser-signed assignments and says, "All these assignments contain my > signature," in which case the notary would still be able to use the "come before" language.

Answer": If you leave out the "Know to" state reference, this is more or less correct. The issue is whether or not the signature has to be attached in the presence of the notary. For an acknowledgement the answer is no. Documents that are acknowledged are typically land records (deeds, mortgages, etc.) where the signer is stating that he is who he says he is and is acknowledging that he is signing of his own free will. In most jurisdictions it is acceptable to bring a signed document before a notary and say "that is my signature, please notarize the document." The notary gets proof of identity, which may be personal knowledge of who the person is (my boss, an employee, a friend, etc.).

On documents where the person is taking an oath, such as affidavits, the signer needs to be in the presence of the notary to take an oath. The typical language here is "Subscribed and sworn to . . ." so the notary is stating that the document was signed before him. Of course the notary could go into the office with the person whose electronic signature is being added to an electronic document and watch that process, then notarize the print-out.

Neither of these types of notarizations addresses how the signature gets added to the document. The first could certainly be the scenario you used where a group of pre-printed documents with laser signatures are handed to a notary by the person whose signature was printed on the document. Since the notary works for the person, he/she personally knows him. But he needs to be in her presence when she notarizes the documents. If the notary is a temp, say, she would need to see proof of ID, but could still notarize all the documents with him in her presence.

But that doesn't address whether or not the laser signature is legal. That answer depends on individual state statutes and case law. More and more states are formalizing signature law to include any characters, letters or symbols attached to a document with the intent to authenticate it. This is the type of language that has been in the UCC acts for years. States are also addressing the issue of what are documents, or writings. Electronic documents are showing up in both the statutes and in case law as being as valid as physical (i.e. paper) documents. If an electronic document is legal (whether by statute or by case law), and if any symbols, characters or letters attached to it with the intent to authenticate are used to sign such a document are legal (also either by statute or case law), you have a legal signature.

I'll save for another day whether the electronic document and signature are the original and the paper print-out the copy. That argument gets even more convoluted when you consider that many of today's document preparation programs may generate these printouts on-the-fly by taking boilerplate forms and merging data from a database together with the signature of the person and streaming the result to a printer without ever creating a single electronic document.

Question: If there is such a difference in the notary statutes, which states have which language?

Answer: Statutes vary and the particular language for a state's acknowledgements and oaths are frequently in the statutes. But the concepts of personal appearance and personally known are universally independent of one another.

Question: While I'm thinking about it, let me go even further: Let's say that the bank officer presents a stack of laser-signed, blank assignments to the notary and says, "I have pre-signed these assignments and I authorize my computer department to fill them in upon the authorization > of my staff." Is there anything legally wrong with the notary acknowledging the signature even though the document is not complete?

Answer: Not good form even if legal. It's not legal in Florida. Typically the list of assignment references should be entered into the computer or fed from a database prior to printing. If not, the computer department should fill in the information before the notarization. But, if the notary is taking an acknowledgement, i.e. "Acknowledged before me by _____, who is personally known to me or who produced as identification _______, this ___ day of _____, 199__.", then it is sometimes done. We do NOT condone it.

Question: Is it the responsibility of a notary to determine if a document is complete or even filled in?

Answer: A notary should certainly scan a document for blank spaces. It's a protection for the signer to be sure there are no blank spaces that could be filled in later to alter the document to the signer's disadvantage. And the notary doesn't want to abet a fraudulent act by helping the signer with an "official" document later altered to the signer's advantage. Florida law requires a notary not notarize an incomplete document. Blanks make the document incomplete.

On the other hand, many documents are compound by nature. A part of a document may be notarized while the balance may have blanks to be filled in by others in the chain of processing. In those cases, the later addition of information in the blanks is not material to the act of taking an acknowledgement. An example are the spaces left for recorders to put recording information, or for a title company to enter indexing information. That does not alter the document from the point of view of what the signer acknowledged before the notary.

Question: Are there differences between the states in whether the Notary must use "come before" language or "known to me" language.

The answer is no. Personal appearance is a requirement in all states except Arkansas. Every state is operating under some uniform acknowledgement act so the language is virtually the same. Mr. Wileman's statement that signers in Texas needn't appear before the Notary and that a notarization may be based on the Notary's familiarity with a signature is a violation of the law since the Texas statutory notarial certificates clearly state that the signer must appear before the Notary at the time of the notarization. There is no obligation to SIGN in the presence of a Notary in the act of acknowledgement, but the signer must BE in the presence of a Notary.

The reliability of the signature on a document received for recording has been a long-standing issue. We believe that a statutory requirement that each signer affix a signature in the journal of notarial acts affords the Notary the valuable opportunity to compare the journal signature with that on the document and on the signer's ID cards; it also may show that the signer laboring to make a convincing forgery -- an opportunity often missed with acknowledged documents, which needn't be signed in the Notary's presence. Thus, a recorder, relying on the Notary, could be more assured that the signatures are genuine. Unfortunately, only a few states require journal signatures and legislation which proposes such a safeguard is vehemently rejected by all lending institutions, attorneys, and other organizations who believe it impedes the notarial process, takes up too much time and requires, at the very least that signers must appear before the Notary, a requirement, I might add, in every state but one. Even in cases where there are hundreds of documents to be "notarized" states with journal signature requirements accept one signature in the journal for the appropriate number of documents handed over to the Notary by the signer at that moment in time.

Request From Omaha Attorney Firm

"Enclosed is a proposed acknowledgment to be used for our client, who is no longer able to either sign nor affix his mark to a document for recording in your office.. We propose to use a facsimile stamp of a prior signature made by him.

It is my understanding that you are going to discuss this matter with the Douglas County Attorney?s office. In order to assist?we enclose a reference from 80 CJS Signatures § 7, which allows for the use of a stamp. We also enclose a copy of the case of Graff v. Graff, 179 Neb. 345, which would allow another person to sign on behalf of someone."

[Note-In the Graff decision, the court based its decision in part on the fact that "The deeds appear to be regularly acknowledged. No attempt was made to impeach the certificate of the notary."]

The Deputy County Attorney responded in an opinion to the Register of Deeds:

"?I have concluded that the deed can be recorded provided it is properly acknowledged.

Both Nebraska law and general law hold that when a grantor is not able to affix his signature to a document, a facsimile signature or the grantor?s mark can be affixed to the document. This mark or facsimile signature will generally be treated as an original signature provided that the grantor acknowledges that such mark is to be considered his original signature [my emphasis]. Of course, the acknowledgement must be properly and duly signed and be in an original form on the document to be recorded.

The circumstances in which a facsimile signature or mark other than an original signature of the grantor are rare and should not be accepted on a routine basis. Your inquiry as to the authenticity of the signature and the legality of the acceptance of the documents was the appropriate course of action and should be followed in the future.""

In another letter dated in 1989, a county attorney stated the opinion that "a ?FAX" copy should not be accepted in lieu of the original deed for recording purposes." Nor has anyone in this current exchange has suggested otherwise, since the acknowledgment would not be an original.

[Note-The Nebraska statute contains a section defining what a signature is, that reads, "Generally, in the absence of a statute otherwise providing, a signature may be affixed by hand, by printing, by stamping, or by various other means." This has been further interpreted by Nebraska courts to allow typewritten, engraved, photographed, written in pencil, and even cut and pasted from one instrument to another. Thus Nebraska law is pretty clear in broadly defining signature. I?d like to hear from other states about their statute, if any, on how a signature is defined?]

Question for those who are on the "Check Signatures" side of the issue-If you had the Nebraska statute in your state, would you still check for original signatures when the acknowledgment is complete and correct? If so, why?

Our association had a very interesting discussion about computer generated signatures or facsimile signatures at our meeting on Nov. 18,1998. We reaffirmed our vote that we took Sept. 28,1995 which was NOT to accept a facsimile or computer generated signature. Our study committee will be looking at this issue as well as others that have come up, that we believe need legislative initiatives to either clarify or allow its use in NH. I will keep you posted on these events, unfortunately after a heated discussion, broken up by the reading of the numerous emails and faxes, we all enjoyed the one from Joyce Watts, the decision not to accept stands. I look forward to more discussions of this issue on the National level, if you get anymore feedback, please let me know. Thanks for all you help.

I asked Kathi what the legal basis for rejecting these signatures might be, and she responded on 11/20/98 (my emphasis):

The legal basis that our Association is using in rejecting facsimile or computer generated signatures is the lack of statutory authority to do so. The only statute covering facsimile signatures allows Public Officials Only to use those signatures in very limited situations. The statutes covering the Registers does not allow nor does it specifically mention that they can be accepted. Our interpretation of "original Documents" includes what we interpret to be a physically handwritten mark made by the person by whom the signature represents. It is made by them only. We are also relying on what our statutes require for acknowledgement, the person must appear and sign in the presence of a JP or notary. We realize that this is not the case in some of the other states. There was concern about the possibility of fraud, though it is not a direct concern of the Registers, more a consumer concern. We all realize that once a document is microfilmed or optically scanned, that it is impossible to know if it was an original signature, but, we also realize that if we make every attempt to ensure that the document conforms to our current statutory requirements "original document" to include an original signature, that we have made every effort to comply with our laws.

PS. We do not spit test signatures, we eye them only and make our best determination. We have only received a few copies of signatures. I guess bottom line agreement of our association was, until there is specific legislation that allows us to accept a facsimile or computer generated signature we can't and won't. I will circulate the questions that you sent to me and will advise you of the replies. Thanks again. I look forward to continued dialogue on these subjects.......

I will end this phase of the discussion for now the way it began, with a few questions for future consideration, based on Kathi?s notes regarding the outcome of the New Hampshire Registers? annual meeting:

1. Kathi says the New Hampshire recorders are acting based on a lack of statutory authority, that is, they cannot accept anything but an original signature because the legislature has not said they can accept anything else. Is this logical, or can it be used to allow any recorder to do anything extra-statutory just by saying, "Gee, I have to reject all left-handed signatures because there is no statute to allow me to accept such a signature?"
2. The possibility of fraud exists in all transactions recorded. That is the reason behind the laws of notary and witnesses, for example, to "assure" that signatures are genuine. But what happens when the notary is in cahoots with the fraudulent signer? Whose problem is this anyway?
3. Harking back to Walt Wileman?s comments, what recorder is to say that he does not stand with his notary by the system printer that prints his name when he prepares assignments and say to his notary, "Each of these signatures is mine?" What gives any recorder the right to say that a notary is complicit in acknowledging what the recorder thinks is an invalid signature. Should the notary be brought before the state board for expulsion?

Another, related discussion has started as of 1/23/99 regarding the need for and reasonableness of "Statutory Requirements for Document Review."

We will come back to the signature issue some time in the future as part of a white paper about the content of documents. In the meantime, this document will be posted to the Standards Committee Internet web page to help any recorders who are facing this issue in their state or county.

Future comments are of course welcome, and will be added to this document as received.