Notary Kept a Copy of my Documents

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Services for Real Estate Pros


This is one I really want some notary opinions on.  

As we know, many, if not all banks, hold the bond for the notaries that they employee. Also, we know that bank notaries only notarize for that bank's customers. (That is a whole 'nuther issue for a different blog!)

 Back in October or November of 2008 I needed my own divorce papers notarized. I represented myself sui juris, my then husband had been living in another state for some time and his lawyer was an hours drive from me.

This presented the problem of locating my own notary locally.  Well, I went to my bank. I have had many things notarized there before, by the same lady. She had recorded in her notary journal the more important documents (Tennessee does not require a journal.)  However, on this particular day, AFTER I had signed, and she had notarized the Complaint for Divorce, Marital Dissolution Agreement and sundry other documents pertaining to the divorce--she informs me that she is required by the bank to keep a copy of each and every document she notarizes!  

She proceeded to copy them and placed them in a three ring, loose leaf binder!  

Now these papers have, since then, become public record as all divorces do--unless for a particular reason the judge is asked to seal the record and does so. Also, as it was an agreed divorce there was nothing particularly "bad" in the documents. Yet the question arises--What if we had reconsidered and decided not to file the divorce?   These are being kept in a loose-leaf binder, to be turned over to the bank's officials.

Tennessee Code states:    

8-16-118 Recording Fees  

A fee of one dollar ($1.00) and no more is allowed to a notary public for recording in a well-bound book, to be kept by such notary for the purpose, each of the notary's attestations, protestations, and other such instruments of publication.

 

The Secretary of State's web page states:

 

Am I required to keep records of my notarizations?

Tennessee law does not specify that you must keep record of notarizations. However, that can be inferred from the statutory provision which allows a notary to charge a fee of one dollar ($1.00) for recording in a well-bound book each of the notary's attestations, protestations, and other instruments.

 

Now this does leave some very gray areas of whether or not keeping a journal is required, but it definitely does not say that we can or should keep a copy of people's documents.

What if I had taken my will in there to be notarized?

Hypothetical Situation:

Linda makes out a will, leaving nothing to her son.

Linda then takes this will to a notary to be executed and notarized. The notary makes a copy and places it in a loose-leaf binder.

Linda's son, Albert has an affidavit to be notarized and he takes it to the same notary. Again, the document is signed and notarized, and a copy made.

As they all live in a very small town, Albert and the notary start up a conversation about the upcoming Mule Pull. Will still talking the notary pulls out her notebook and places the affidavit in it. The phone rings and she turns to answer it, leaving the notebook open--to the document last placed in it--Linda's will!

Now Albert is not a nosy person but out of boredom, his eyes fall on it, he notices, in bold lettering across the top--Last Will and Testament of Linda Jones--of course his own Mother's name catches his eye and the rest becomes a huge family rift!!!

Any thoughts on this one???

 

 

Posted by

Mary Ellen "Chakwaina" Elmore

 

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PAW Financial & Notary Services

>>>  As we know, many, if not all banks, hold the bond for the notaries that they employee. <<<

The required bond ($10,000 for TN) is "held" by the surety company that issued the bond.  Since Notaries Public are individually commissioned, the notary must individually and separately obtain and maintain their bond.  Notarial acts performed by the notary are individual acts, however, the employer may be held liable if the notarial act was performed under the employer's direction.

The following is a quote from the TN Notary Public Handbook (2006, pg 3 and 4):

Bond. After election by the county legislative body and before commencing duties or exercising powers, a notary must post bond by a surety company authorized to do business as a surety in Tennessee, or with two or more good personal sureties, approved by the county legislative body, in the amount of $10,000.00. The bond is payable to the state and conditioned on the faithful performance of the duties of a notary public. The bond must be filed in the office of the county clerk in the county of election. T.C.A. § 8-16-104. The county clerk may charge $1.50 for taking and recording the bond. T.C.A. § 8-21-701.

As to the notary keeping a copy of the notarized document(s), it may be bank policy, but I personally would challenge that policy, citing that the bank employee has no need to keep copies of notarized documents unless those documents pertain strictly to the bank or bank business.  The Handbook makes no reference to keeping copies of notarized documents, only that a record of the act be recorded (if a fee is charged for the service).

The following is a quote from the TN Notary Public Handbook (2006, pg 8):

Records. In order to charge the statutory fee, a notary must keep a record in a well-bound book of each of his or her attestations, protestations, and other instruments of publication. A record of fees received should also be kept for income tax records. It is recommended that every notary keep a record of his or her acts in a well-bound book, which should include the following:

1. The date of the acknowledgment, affidavit or other transaction;
2. The name of the person whose signature is being notarized;
3. To whom the instrument is being executed;
4. A description, including the date, of the instrument;
5. Whether the person whose signature was notarized was a personal acquaintance or what proof was shown prior to notarizing the signature (see definition of “satisfactory evidence,” discussed later); and
6. What fee, if any, was received.

In my opinion, a record of notarial acts must be kept unless no fees are charged.  Even if no fees are charged, a record of the act should still be recorded as outlined in the handbook.  As you stated, it does not include copies of notarized documents.  (As a point of reference, Florida states in their handbook that a notary is not authorized to keep copies of notarized documents.)

Mar 14, 2009 08:59 AM #1
Rainer
27,305
Mary Ellen Elmore
Nunnelly, TN

Paul,

In Tennesee and seeral other states, anytime a bond is required, be it for notaries or any other time one is required, you do not have to use a bonding company/insurance company. You can obtain a person or business to be your surety or to file a cash bond with the state.

This is how banks do it. They become the surety/bond for the notaries they employee and I have a problem with this--as they require it for you to be a notary and an employee of theirs.

The bank is requiring the copies be kept as part of the fact that they "hold the bond".

TN laws are very spread out for lack of a better term. But the only time I know of the law stating that the bond holder can place a requirement that the notary can only notarize for their employer and that if the notary leaves their employment they MUST leave their commission and seal with the employer is if they work for the State Department of Human Services--that can be found in the codes pertaining to DHS and in the Policy & Procedure Manual for that department. In this instance the bond "is held" by the State.

I am assuming that from that particular law other bond issuere's could infer that they also can place limitations upon the notaries.

When I called the SOS office I was told that the bond holder or issuer can place whatever conditions they wish upon the person or entity they are bonding.

I also believe that all notaries should keep a notarial journal, no matter what for purposes of CYA!

I have met many others in TN that use any old book and many do not have any signatures in the book, just name of person and date. They use legal pads, wire-bound composition books, three-ring binders or loose-leaf notebook paper and just put it in a file when it gets full.

We are also suppossed to turn the journal over to the County Clerk when it becomes full. The county clerks will tell you they have no idea of why you even kept on and to just keep it.

I also have yet to meet a notary, in person, from TN that was actually sworn in. The clerks tell you, if they say anything about it all, that you are swearing by signing.

As for the SOS office, I rarely call them as the pat answer is, "We can not interpret law. You need to consult an attorney. We let the individual notaries determine those things for themselves."

Most attornies, but not all, I have asked questions of concerning notorial acts in TN, just say-yeah, I know it (the code) says that, but its been done the other way here for generations. And that will actually stand up in court--I have seen it many times.

 

Mar 14, 2009 09:58 AM #2
Rainer
27,305
Mary Ellen Elmore
Nunnelly, TN

Please forgive my atrocious spelling in my previous response.

Mar 14, 2009 10:01 AM #3
Rainer
38,976
LaShon James-Major
The Document Diva - Long Beach, CA
Long Beach Mobile Notary - 562.314.4319

There is no way I would have let her keep a copy of my documents. It may be the bank's practice but you don't have to agree with it.

Mar 14, 2009 11:32 AM #4
Rainer
27,305
Mary Ellen Elmore
Nunnelly, TN

LaShon,

It would have been too much trouble and after discussing it with her and KNOWING that this divorce would be filed and go to hearing and be granted, thereby becoming Public Record--this particular thing did not matter to me--but I will NEVER have anything else notarized there.

Mar 14, 2009 11:49 AM #5
Rainer
27,305
Mary Ellen Elmore
Nunnelly, TN

Also, remember, part of the problem was that all other notarizations done at this bank, by the same lady, she had never kept a copy.

This time everything was already signed and notarized before she informed me of the new policy.

I really did not want to create a scene and end up having to get the documents re-drawn because she had been instructed to retain them or destroy them. Nor did I want her to get in trouble and loose her job or her bond due to not following the bond holders/issuers instructions.

Mar 14, 2009 02:32 PM #6
Rainer
18,727
Jacqueline Dyson
Dyson's Mobile Notary Service - Sacramento, CA

So who did she charge, you or her employer?

Mar 15, 2009 06:38 PM #7
Rainer
27,305
Mary Ellen Elmore
Nunnelly, TN

She charged no one.

Mar 16, 2009 12:28 AM #8
Rainer
2,857
Ardel Richter
Arkansas Notary on Wheels - Mountain Home, AR

JMO... I think it's wrong for a notary to keep a copy of any document they've notarized.  A journal, yes--an actual copy, no.   However, the notary's employer may have taken a hit at some point and been advised by their lawyer to 'keep copies' as a CYA.  Puts the poor employee/notary in a bad position...particularly when the TN SOS's only advice is:  Consult your lawyer.  I'd guess that if enough customers complain to the bank, they would be forced to reconsider this practice.  Glad I'm not that notary!

Mar 16, 2009 09:58 AM #9
Rainer
25,907
Pamela Knight
Urban Knight Enterprises, Inc. - Phoenixville, PA

This situation is unethical.  There is no reason for the bank or notary to keep copies of your documents especially if it is recorded in a register.  If this is a true bank policy this information should be posted some where that is visible to customers.  The bank should provide written literature which explains this policy and allows the customer to give permission or not.  Your rights have been violated and you should request a copy of this policy. 

I would present this to the banking and notary commission boards of my state. In the medical industry, you are required to sign a HIPPA Disclosure Statement.  The bank should of presented you with some type of disclosure statement.     

Mar 17, 2009 09:55 AM #10
Rainer
27,305
Mary Ellen Elmore
Nunnelly, TN

Pamela,

It is not a policy of the bank as a bank. It is supposedly a requirement of the bank as a notary bond issuer.

I do agree that I should have been told, up front, of the change as it affected me--I would have went to the County Clerk's Office.

As she was "required" to keep a copy, she no longer used a journal (which isn't required in TN anyways).

See, one of the main faults here is that the notary--and most all notaries that have gotten commissioned at the request of their emloyer, is that the notaries are not reading the handbooks, reading the pertinant laws, nor exercising common sense.

As for calling the SOS, all you get is, "We let the notaries decide." or "We do not interpret law, consult an attorney."

Also, there is a case law in TN that says if a notary breaks any of the applicable codes, IN GOOD FAITH, there will no consequenses!

Not to mention TN works, in many areas, off the good ol' boy system.

Mar 17, 2009 02:10 PM #11
Rainer
27,305
Mary Ellen Elmore
Nunnelly, TN
 

Paul,

You said "The required bond ($10,000 for TN) is "held" by the surety company that issued the bond. "

I am not sure i was clear in my answer to that part of your comment so I will reply here to just that sentence--

The bank IS the bond

Mar 17, 2009 02:15 PM #14
Rainer
27,305
Mary Ellen Elmore
Nunnelly, TN

Paul and others,

Here is hte section from the Tennessee Notary Handbook on bonds. As you can see, you do NOT have to have a bonding company do it.

Bond.

After election by the county legislative body and before commencing duties or exercising powers, a notary must post bond by a surety company authorized to do business as a surety in Tennessee, or with two or more good personal sureties, approved by the county legislative body, in the amount of $10,000.00.

Hope this explains about bonds being backed or "held" by someone other than a bonding or surety company.

Mar 22, 2009 03:30 PM #15
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