The Backdated Closing Package
James is a Delaware notary employed by a title company. On Friday, March 7, a closing package arrives from a lender. The deed was signed by the seller, Mr. Ortiz, on March 3 at his home. Ortiz is now on a cruise and cannot appear. The settlement agent tells James that the lender will fund only if the acknowledgment is dated March 3, the date Ortiz signed. The agent also suggests James can "verify" Ortiz by calling him on the phone and that the title company's errors-and-omissions policy will cover any issue. James has a valid commission, a journal, and a seal. The deed identifies Ortiz as grantor and contains a blank acknowledgment certificate. James has never met Ortiz. The closing is scheduled for 4:00 p.m., and the agent is pressing him to "do what needs to be done."
1. May James notarize the deed using a phone call and a March 3 certificate date? Explain.
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No. A notarial acknowledgment certifies that the signer personally appeared before the notary on the date shown, was identified, and acknowledged the signature. James has never met Ortiz, Ortiz is not present, and a phone call is not personal appearance. The certificate date must be the date the notarial act actually occurs, not the date the signer signed the document. Backdating to March 3 would be a false official certificate and likely notarial misconduct. The lender's funding condition and the title company's insurance do not make the act lawful. James should tell the settlement agent that Ortiz must appear before a notary with satisfactory identification and acknowledge the deed. If Ortiz cannot appear, the closing should be rescheduled or another lawful arrangement made. James should not sign a certificate claiming a personal appearance that did not happen.
2. What must happen for Ortiz to lawfully acknowledge the deed, and what should James record?
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Ortiz must personally appear before a notary-James or another lawful notary. The notary must identify Ortiz using satisfactory evidence, such as a current government-issued photo ID examined in person or reliable personal knowledge. For an acknowledgment, Ortiz must acknowledge that he signed the deed; the notary does not necessarily watch him sign, but the notary must confirm the signature and identity. James then completes the acknowledgment certificate with the actual date, signs and stamps it, and records the act in his journal: date, time, type of act, signer's name and address, identification method, and fee. If Ortiz cannot appear, James should not make a journal entry for a notarial act that did not occur. He can document the agent's request and his refusal in separate business records if appropriate.
3. How should James respond to the pressure from the settlement agent, and what are the consequences of giving in?
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James should calmly but firmly refuse. He can explain that the certificate is his official representation, not a clerical formality, and that he cannot certify an appearance or date that did not occur. Pressure from a client or employer does not override Delaware notary law. If James gives in and backdates the certificate, he risks suspension or revocation of his commission, criminal exposure for official misconduct, civil liability, and damage to the deed's enforceability. The title company's errors-and-omissions policy does not authorize a false certificate and may not cover intentional misconduct. James should suggest lawful alternatives: reschedule the closing, have Ortiz appear before another notary when he returns, or use a properly authorized remote notarization process if Ortiz qualifies. Protecting the integrity of the certificate protects James and the transaction.