The Lapsed Commission
Kevin was commissioned as a Kansas notary effective July 1, 2020. His commission states a four-year term. In March 2024 he moved from Topeka to Overland Park and did not notify the Secretary of State. He kept using his seal and his online notary profile, which still showed his old Topeka information. His commission expired June 30, 2024. On July 8, 2024, he notarized a signature on a Kansas living will for a neighbor. On July 15, 2024, he notarized a mortgage refinance document for his brother. The title company discovered the expiration when it checked the Secretary of State's website. Kevin says, 'I didn't get a renewal notice, and I was still using my seal; everyone accepts it.' He has not applied for a new commission and has not obtained a new bond.
1. Was the July 8 living will notarization valid? Explain the effect of commission expiration.
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No. A Kansas notary commission has a fixed term, and Kevin's four-year term ended June 30, 2024. After that date he had no notarial authority, even though he still had his seal and had not received a renewal notice. A notarial act performed after the commission expires is not valid. The July 8 living will acknowledgment is defective, and the July 15 mortgage notarization is also defective. The fact that people accepted the seal does not cure the lack of commission. Kevin cannot backdate the certificate to June 30 or earlier. The living will may need to be re-executed or re-acknowledged before a currently commissioned notary, depending on the document and the advice of counsel. The mortgage will almost certainly need to be re-notarized before recording or funding.
2. What administrative problems did Kevin create by moving without notifying the Secretary of State and by continuing to use his seal?
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Kevin failed to keep his commission information current. Kansas notaries are expected to notify the Secretary of State of a change of address, and Kevin moved in March 2024 without doing so. That left the public record and his online profile inaccurate. More seriously, he continued to use his seal and to notarize after his commission expired. Using a notary seal after expiration can mislead the public into believing he still has authority. It can also violate Kansas notary law and subject him to investigation, penalties, or denial of a future commission. He should stop using the seal immediately, remove or correct the online profile, and not perform any further notarial acts until he is commissioned again. The failure to receive a renewal notice is not a defense; the notary is responsible for tracking the commission expiration date.
3. What must Kevin do to lawfully notarize again, and what should the title company do about the July 15 mortgage?
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Kevin must apply for a new Kansas notary commission through the Secretary of State. He will need to meet the eligibility requirements, submit the application and fee, obtain the required surety bond, and take any required oath. The new commission will begin when it is issued; it will not retroactively validate anything he did in July. He must use his current Overland Park address and a new commission expiration date. The title company should treat the July 15 mortgage notarization as defective and have the signer appear before a currently commissioned notary to execute a new acknowledgment. The title company should not accept a backdated certificate or a correction made by Kevin after the fact. If the mortgage has already been recorded, the title company should consult counsel about a corrective instrument or re-recording.