Citations on Notarizing an Affidavit

citations notarizing affidavitCitations on Notarizing an Affidavit

Affidavit Procedure

If the notarized document is an Affidavit, or if the heading or preamble states that the signer, affiant or deponent is making a statement under oath, before God, affirmation, penalty of perjury, duly sworn, sworn statement, deposes or says, but there is no jurat attached:

  1. the notary may place the signer under oath or affirmation,
  2. may ask for signer’s approval to line through the acknowledgment and replace it with jurat wording, or
  3. may request written instructions if the signer requires an acknowledgment, or
  4. may decline to notarize the document if it contains an acknowledgment.

If the affidavit contains a split jurat certificate, with the venue (state and county) at the top, the notary completes the venue and any preamble or introductory statement regarding the signer being duly sworn, including the signer’s name.

Citations Regarding Notarizing an Affidavit

gavel 200x200Listed below are some citations from Colorado and other states regarding the proper notary procedure for notarizing an affidavit.

1.  Where an affidavit is called for, an acknowledgment will not suffice.” (Pina v. Simon-Pina 544 So. 2d 1161)

2.  Archie’s [**3] motion merely contains a certificate by a notary public that “the foregoing instrument was acknowledged before me this 22nd day of March 1994, by Antonio Archie, who is personally known to his attorney and who did take an oath.” An “acknowledgment,” even under oath, is nothing more than a confirmation by Archie that the signature is genuine. It is not equivalent to swearing under oath that the facts alleged are true and correct.” (Archie v. State 660 So. 2d 348)

3.  The notary public may not take an acknowledgment of execution in lieu of an oath if an oath is required. (Florida Statute F.S. 117.03, Administration of Oaths)

4.  An affidavit without a notary’s seal is not properly notarized and therefore, is defective. Venable v. State, 113 S.W.3d 797, 800 (Tex. App.- Beaumont 2003, pet. ref’d)

5.  A valid affidavit must include “a certificate by a competent officer that the writing was sworn to by the person who signed it,” known as a juratAcme Brick v. Temple Associates, Inc., 816 S.W. 2d 440, 441 (Tex. App – Waco 1991, writ denied)

6.  A document bearing a simple “acknowledgment” is not an affidavit.  An acknowledgment is merely an admission that the parties signed the document in question, and does not prove the document contains true and correct Id. factual statements.   Perkins v. Crittendon, 462 S.W. 2d at 567-568.

7.  A document bearing a notary’s attestation that “certifies” that the person who signed the document stated that it is true and correct is defective because it lacks the requisite swearing or affirmation.  State v. LeBlanc, Inc.,  399 S.W. 2d 919, 922 (Tex. Civ. App. – Houston 1966, no writ)

8.  Notary failed to verify identity and failed to place expert witness under oath for a jurat on an affidavit of merit for a medical malpractice lawsuit.  Affidavit was rejected by Court of Appeals as being defective and not considered an affidavit at all because it contained a false jurat and was not properly notarized.  Glancy v Steinberg, 2003 WL 21465239 N.W.2d-MI

9.  Colorado Supreme Court ruled that a petition that was circulated for signatures was invalid because it contained a defective affidavit, lacking the required wording that the circulator has “read and understands the laws governing the circulation of petitions”.  Loonan v. Woodley, 882 P.2d 1380 (Colo. 1994)

Colorado Law for Notarizing an Affidavit

10.  CRS 12-55-110 (1) Every notary public is empowered to:
(a) Take acknowledgments and other unsworn statements
(d) Take depositions, affidavits, verifications, and other sworn testimony or statements.

11.  CRS 12-55-119 If an oath or affirmation is administered by a notary in writing, a jurat certificate must be used, stating that the statements were made before the notary, under oath or affirmation.

12.  CRS 12-55-207 An acknowledgment certificate indicates that the signer appeared before the notary, acknowledged their signature, and executed the instrument for the purposes therein stated.  (No sworn statement is made before the notary.)

13.  CRS 18-8-503. Perjury in the second degree.
(1) A person commits perjury in the second degree if, other than in an official proceeding, with an intent to mislead a public servant in the performance of his duty, he makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law.
(2) Perjury in the second degree is a class 1 misdemeanor.

14.  To make a valid oath, for the falsity of which perjury will lie, there must be in some form, in the presence of an officer authorized to administer it, an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath. Rogers v. People, 161 Colo. 317, 422 P.2d 377 (1966).

15.  No presumption of oath-taking is held to apply where the notary’s testimony was equivocal on the issue of whether the oath was taken. Rogers v. People, 161 Colo. 317, 422 P.2d 377 (1966). [perjury conviction overturned where notary probably did not administer oath]

Colorado Secretary of State Affidavit Definition

16.  Colorado Notary Law Monograph, Michael L. Shea, JD, pg 10, Notarial Duties: Based on Rogers v. People (1966), the Colorado Supreme Court expects a notary to administer an oath or affirmation where the principal “swears” to the truthfulness of the statement.

17.  Colorado Notary Handbook, Definitions:
– A written declaration made under oath or affirmation before a notary public or other authorized officer, in which the signer swears or affirms that the statements or declarations in the document are true.

Colorado Notary Law Primer

18. Colorado Notary Law Primer, 3rd ed., National Notary Association (NNA)

pg. 29, Depositions and Affidavits: An affidavit is a signed statement made under oath or affirmation by a person called an affiant, and it is used for a variety of purposes, both in and out of court. For both a deposition and an affidavit, the Notary must administer an oath or affirmation and complete some form of jurat, which the Notary signs and seals.

pg. 30,  In an affidavit, the Notary’s certificate typically sandwiches the affiant’s signed statement, with the venue and affiant’s name at the top of the document and the jurat wording at the end.  The Notary is responsible for the venue, affiant’s name, and any notarial text at the beginning and end of the affidavit. The affiant is responsible for the signed statement in the middle.

pg. 30,  Depositions and affidavits require jurat certificates.

pg. 31,  A jurat requires the principal to take an oath or affirmation.

Colorado Rules of Civil Procedure

19.  Colorado Rules of Civil Procedure (CRCP) Rule 108
Affidavits– An affidavit may be sworn to either within or without this state before any officer authorized by law to take and certify the acknowledgment of deeds conveying lands.  
Cross references: For officers authorized to take acknowledgments of deeds, see § 24-12-104, 24-12-105, and 38-30-126 to 38-30-135, C.R.S.

20.  Colorado Rules of Civil Procedure (CRCP) Rule 110
(a) Amendments. No writ or process shall be quashed, nor any order or decree set aside, nor any undertaking be held invalid, nor any affidavit, traverse, or other paper be held insufficient if the same is corrected within the time and manner prescribed by the court, which shall be liberal in permitting amendments.

Dictionary Definition of Affidavit

21. Black’s Law Dictionary: Affidavit– a written or printed declaration or statement of facts, made voluntarily and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath.

22.  Merriam-Webster Dictionary:
– a sworn statement in writing made especially under oath or an affirmation before an authorized magistrate or officer. Origin: Medieval Latin, he has made an oath, from affidare.

Citations from Other States Regarding Affidavits

23.  Removal from office for certifying affidavit without administering an oath.  No notary public shall certify to the affidavit of a person without administering the appropriate oath or affirmation to the person.  Ohio Statute 147.14

24.  Trial court rejected lien notice document because it contained an acknowledgment certificate, but statute required a verification or sworn statement.  HAMS Company v Electrical Contractors of Alaska, Inc., 563 P.2d 258, 262 (Alaska 1977)

25.  Lien was rejected because it was not sworn or verified by affidavit as required by state law.  Tefco Construction Co. Inc. v Continental Community Bank & Trust Co., 829 N.E.2d 860 (Ill App Ct 2005)

Disclaimer: This information is for educational purposes only, and is not to be considered or used as legal advice.  For legal advice, contact an experienced attorney.

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[Last-Modified Date 2017-04-03] add new image

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