The Closing Assistant Who Is Also the Grantee
Priya is a Nebraska notary who works as a closing assistant at a title company. Her husband, Dev, is selling the family's rental duplex. Dev signs a warranty deed transferring the duplex to Priya as sole grantee, and the title company asks Priya to notarize Dev's signature on the deed and on a related deed of trust. The closing is scheduled for Friday, but Dev signed the deed on Wednesday so the package could be shipped, and he will be out of state on Friday. The title officer tells Priya to write Friday's date because that is the closing date and adds that the company will pay her $25 per signature for the rush, above the normal $5 per signature it charges borrowers. Priya's manager says it is just a formality because everyone knows Dev.
1. May Priya notarize Dev's signature on the warranty deed?
Read the worked answer
No. A notary may not perform a notarial act on a record in which the notary is a party or has a direct beneficial interest. Priya is the grantee - she takes title to the duplex if the deed is effective - so she has a direct beneficial interest in the transaction.
Her husband's signature does not cure the problem; the disqualification runs to Priya herself as a party taking title. The correct solution is a disinterested notary. The manager's view that notarization is a formality is irrelevant: the conflict is a legal bar, and proceeding could expose Priya to discipline and civil liability and could create a title defect.
2. What is wrong with dating the certificate Friday when Dev signed Wednesday and will not attend the closing?
Read the worked answer
Two separate errors are being proposed.
- Backdating/posting the certificate. A notarial certificate must be dated the date the notarial act is actually performed. Writing Friday because that is the closing date makes a false certificate. Even a notary with no conflict may not do this.
- No appearance on Friday. An acknowledgment requires the signer to appear before the notary on the date of the act and acknowledge the signature. Dev signed Wednesday and will be gone Friday, so no acknowledgment can occur Friday. A notary may notarize an earlier signature only if the signer appears and acknowledges it on the date of the notarization, and the certificate is dated that date.
Because Priya is disqualified anyway, a different notary must handle Dev's acknowledgment while he is available.
3. How should Priya respond to the $25-per-signature payment and the fee charged to borrowers?
Read the worked answer
The $25 per-signature payment is not permissible as a notarial fee. Nebraska caps the fee a notary may charge for a notarial act, and a 'rush' premium per signature exceeds that cap. A notary may charge separately itemized travel or expense amounts only where the law permits them; a per-signature surcharge is not a travel expense.
Priya should decline the arrangement and should not allow her notarial commission to be used to generate an above-cap fee. Charging excessive fees is a prohibited act and can lead to discipline, required refunds, and liability. Her refusal should be documented with her employer.