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The Notary Fraud Condonation Act of 2010

posted by Adam Levitin

It looks as if the President will veto the Notary Fraud Condonation Act of 2010, formally known as Interstate Recognition of Notarizations Act of 2010.

Notary fraud is nothing new, and it's hardly foreclosure-specific. Requiring state courts to recognize out-of-state notarizations would be a significant invasion of the federal government into states' own rules of evidence. It's not equivalen to requiring recognition of other states' judgments. Some jurisdictions, like DC, recognize out-of-state notarizations, but one can easily understand why a state might not: how does a state court in Florida know what a proper Alaska or Hawaii or Vermont notarization looks like or what rules govern notaries in those jurisdictions? Is there supposed to be a seal? What does it look like? Does the signature need to be performed in the notary's presence or merely affirmed? If the notarization is fraudulent, is the out-of-state notary likely to be disciplined?


Pocket Veto..

The Act would also have encouraged a race to the bottom, where bad actors identify the states with the worst oversight of notaries and standards, and set up 'notary mills' there.

So how does my client in China sign answers to interrogatories that have to be notarized without flying back to the US to sign them?

UCT--that's a great question. I don't know what, if anything, would (or should) require a US court to give credence to a Chinese notary's notarization. That's an evidentiary question.

It is not a Chinese notary. What routinely happens is we send the client to the US embassay to get the signature notarized or have the document notarized by a US notary working at the client's company. There is no good reason why states should not be required to recognize notarizations performed in other states. If someone wants to challenge the notarization, they are free to do so, but the presumption should be that the notariztion is valid.

Good grief, Adam, who cares about this notary stuff. There are crazy (debit) interchange movements afoot that could change the payments landscape forever. The Durbin Amendment. The DOJ settlement. The TCF lawsuit. Can you please write something about this stuff? What's going on and what does it all mean?

Is this really as bad as it sounds, I know many states have really weak consumer protections, but this does not seem to be extremely bad although imperfect it can set the stage for certain recognition, recall that many states for example recognize eachother's driver licenses and in certain cases bar exams, even college and high school diplomas (which are not regulated or accredited by the feds). Official licensing and government departments already check driver license features. While true its a bit of a stretch and an intrusion, in theory it does set a great discussion.

Individual states can't even regulate this internally to get various counties to cooperate, so it's hard to envision regulating this nationally without a major overhaul, not to mention the other issues already raised.

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