What is a notary?
A notary public is appointed by the state to verify the 1) signer's identity; 2) signer's willfulness; and the 3) document's authenticity.
A notary is appointed by the state to help screen out forgery and fraud.
A common "notarial act" is the acknowledgement for which the signer appears in person to positively identify herself and declare knowledge as to the signature.
Notary defects are potent defenses in collection cases, particularly debt-buyer cases, where high volumes of cases are routinely being transferred across the country.
Where do notarizations appear?
In affidavits (i.e. affidavit in support and affidavit of service), sworn complaints, or in any document where you see traditional notary language ("On the ___ day of ____ in the year ____, before me came…"). Only some states require a stamp or seal to accompany the notary. New York does not require it.
5 Notary Defects to Raise in Collection Defense Cases
- The affidavit lacks a signature to which the notary applies.
- The date on the affidavit is different than the notary date.
- The notary is located in a state other than where the person signed the affidavit ("affiant").
- The out-of-state affidavit lacks a "certificate of conformity," which affirms the notary's authority as an oath giver.
- The notary's seal or stamp reveals an expired notary license.
A notary defect may or may not be fatal. But it's a potent defense and questions the entire document to which it applies. And in collection defense, that translates into saved dollars.