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Legal Documents and Notary Acknowledgments

There are so many beautiful areas throughout Essex County, Middlesex County and the North Shore.  Raising a family, owning a home or renting an apartment, working or working out; all of these activities can result in the need to sign legal documents, Deeds, Wills and the like.  Often a signature on a legal document will require an acknowledgment from a notary public.  So just what is a notary acknowledgment?

commerce-acts-books-477966-mAccording to Revised Executive Order No. 455 (04-04) Standards of Conduct for Notaries Public a “Notary public” or “notary” means any person commissioned to perform official acts pursuant to Article IV of the Articles of Amendment of the Massachusetts Constitution and a “Notarial act” and “notarization” shall mean any act that a notary public is empowered to perform under this executive order.  An “Acknowledgment” is a notarial act in which an individual, at a single time and place: (a) appears in person before the notary public and presents a document; (b) is identified by the notary public through satisfactory evidence of identity; and (c) indicates to the notary public that the signature on the document was voluntarily affixed by the individual for the purposes stated within the document and, if applicable, that the individual had authority to sign in a particular representative capacity.

The notary acknowledgment is the same whether it is on a deed to a home, a mortgage, a Will, or even an Affidavit.  The acknowledgment is used to prove that the person who signed the instrument was the person intended to sign the instrument, that the signature is genuine, that the signor understood what they were signing and did so of their own free will and voluntarily.  It is important that the notary acknowledgment be properly completed because if not, the instrument could be rendered ineffective.  For example, as found in a recent bankruptcy case in Massachusetts (see Massachusetts Lawyers Weekly, Mortgages—Acknowledgement—Voluntariness by Tom Egan), In Re: Reznikov, Fanni (Chapter 7 Case No. 14-10589-FJB; Adversary Proceeding No. 15-1003-FJB) the Chapter 7 trustee challenged the validity of a mortgage arising from a question on the sufficiency of the notary’s acknowledgment.  The Chapter 7 trustee sought to “avoid a mortgage held by James B. Nutter & Company” granted to James B. Nutter & Company by the bankruptcy debtor, Fanni Reznikov.  The trustee argued that the “mortgage was defective under Massachusetts law because it does not express that the debtor executed the mortgage voluntarily or as “her free act and deed”.   James B. Nutter & Company as the holder of the mortgage tried to refute the trustee and argued that because the Acknowledgement stated that the Debtor ‘duly acknowledged to [the Notary] that [she] executed the [Mortgage].’ that should be “sufficient to express that the Debtor indicated to the Notary that she executed the Mortgage voluntarily or as “her free act and deed”.  The Bankruptcy Court judge disagreed and ruled that the notary acknowledgement was “materially defective because it fails to represent that the Debtor indicated to the Notary that she executed the mortgage voluntarily or as her free act and deed”.  The mortgage was deemed not a valid lien.

This decision adds another level of complexity to properly preparing a notary acknowledgment.  The acknowledgment must expressly state that the person who signed the instrument (whether it is a deed, a mortgage, a Will or an Affidavit) signed “voluntarily” for the purpose contained in the document. This language is crucial for a sufficient acknowledgment, and without it, the document may not be enforceable.  The “voluntary” language is required to provide proof that the signatory was not coerced into signing the document.

Signing any document can have legal consequences. It is always a good idea to read the entire document over before putting ink to paper and now if the signature is to be sworn to in front of a notary, it is important to use the correct acknowledgment form.