Overcoming the Notarial Presumption

March 23, 2020 § 1 Comment

Michael Matthews’s name, along with his wife’s, appeared on notes and deeds of trust against the family home. The loans purported to provide cash flow for Michael’s petroleum business.

But Michael claimed that he did not know anything about the notes or deeds of trust, even though his notarized signatures appeared on them. He denied that he had ever signed any of them, and that they were forgeries. The bank filed suit for declaratory judgment that the documents did bear his signature.

Following a trial, the chancellor ruled against Michael, and he appealed.

On August 27, 2019, the COA affirmed in Matthews v. Whitney Bank, et al. Judge Jack Wilson wrote the court’s opinion:

¶22. “When a party challenges the validity of a properly-acknowledged deed, that party must overcome several presumptions favoring the legitimacy of the document. The first presumption provides that, where a deed is properly acknowledged, the instrument is presumed to be authentic because the certificate of acknowledgment infers verity and presumptively states the truth.” Mapp v. Chambers, 25 So. 3d 1096, 1101 (¶22) (Miss. Ct. App. 2010) (citation omitted). As our Supreme Court has stated, “[i]t is presumed that the [notary] making a certificate of acknowledgment has certified to the truth and has not been guilty of a wrongful or criminal action. The presumption has been stated to be one of the strongest in the law.” Sapukotana v. Sapukotana, 179 So. 3d 1105, 1114 (¶26) (Miss. 2015) (quoting Nichols v. Sauls’ Estate, 250 Miss. 307, 165 So. 2d 352, 356 (1964)) (emphasis added). “This presumption can be overcome only by clear and convincing evidence.” Mapp, 25 So. 3d at 1101 (¶22). In this case, the chancellor found that the 2008 deed of trust was properly acknowledged and that Michael did not overcome the notarial presumption of validity by clear and convincing evidence.

¶23. Michael argues that the chancellor should not have applied the presumption of validity because “both notaries abandoned their acknowledgments and admitted their departure from proper notarial procedure.” However, Michael’s claim that Deborah Estes “abandoned” her acknowledgment of the 2008 deed of trust is not supported by the record, and we find no error in the chancellor’s application of the notarial presumption.

¶24. Deborah Estes notarized the 2008 deed of trust. She testified at trial that she did not have a specific recollection of notarizing the deed, but she had no reason to believe that she would have departed from her standard practices. In other words, she believed that Michael signed the document in her presence. Estes testified that people sometimes asked her to sign documents that they had already signed. Estes testified that her usual practice would be to insist that the principal sign the document again in her presence. On cross-examination, Estes seemed to concede that she might have, at some point in the past, notarized a document that was not signed in her presence—but only if the principal personally presented the document to her. Estes went on to testify that she would not notarize a document if it was signed outside of her presence by someone other than the person who presented it to her. Estes testified that she could not recall ever notarizing a single document under those circumstances.

¶25. Michael claims that his signature was forged on the 2008 deed of trust and that he was not present when Estes notarized the document. Estes, however, testified that it would have been contrary to her standard practices as a notary to notarize a document under such circumstances. By the time of trial, nine years after the fact, Estes did not have a specific recollection of notarizing the deed of trust. But her testimony as to her standard practices as a notary is competent evidence that she acted in conformity with those practices on this particular occasion. M.R.E. 406 (“Evidence of a person’s habit . . . may be admitted to prove that on a particular occasion the person . . . acted in accordance with the habit . . . . The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.”). Estes has been a notary since 2000, and she testified that it has always been her practice to require the principal’s physical presence. Her testimony was sufficient “to base an inference of systematic conduct and to establish [her] regular response to a repeated specific situation.” Hooker v. State, 716 So. 2d 1104, 1111 (¶24) (Miss. 1998) (applying M.R.E. 406) (quotation marks omitted). The chancellor did not clearly err by finding that Estes notarized the document and, therefore, that the notarial presumption of validity applied. See Wallace v. State, 264 So. 3d 1, 6-7 (¶¶22-25) (Miss. Ct. App. 2018) (Wilson, J., concurring in result only) (concluding that an attorney’s testimony that he always communicated plea offers to his clients was sufficient to support the trial court’s finding that he communicated a plea offer on a particular occasion).

¶26. Estes did admit that she failed to record her notarization of the deed of trust in her notarial register. Her failure to do so was contrary to Mississippi Code Annotated section 25-33-5, which provides that “[e]very notary shall keep a fair register of all his official acts[.]” Miss. Code Ann. § 25-33-5 (Rev. 2018). However, a mere “failure to strictly follow form” does not render an acknowledgment invalid when, as in this case, “the acknowledgment contains all the necessary information.” Estate of Dykes v. Estate of Williams, 864 So. 2d 926, 931 (¶21) (Miss. 2003). The statute requiring the notary to keep a register “does not indicate that a notarization not properly recorded in the notary’s log book is void. Nor does it indicate that the notarized document is rendered defectively acknowledged due to the recordation failure.” In re Jefferson, Case No. 11-51958 (Adv. No. 11-05059), 2015 WL 359901, at *5 (Bankr. S.D. Miss. Jan. 26, 2015) (citing Estate of Dykes, supra). The failure to maintain such a register could result in suspension of the notary’s commission. See Miss. Admin. Code § 1-5-7.2 (“The Secretary of State may suspend a notary commission for actions contrary to the Mississippi Notary Law . . . .”). However, it does not invalidate an otherwise proper acknowledgment. In this case, there was sufficient evidence for the chancellor to find that Estes properly acknowledged the deed of trust. Therefore, the chancellor did not clearly err by applying the notarial presumption of validity.

Some thoughts …

  • Does your office staff follow proper recording procedures? Or, let me ask it this way: is your office staff’s notary record sufficient to get you out of a bind if there is a dispute over what took place in your office? Is the recordation sufficient to keep you from having to pay a settlement or judgment? Isn’t it your responsibility to train your staff or see to it that they are trained?
  • It’s true that failure to record properly does not necessarily render the acknowledgment void, but why open yourself up to the controversy?
  • This case illustrates how, in a swearing contest, a presumption can — and usually will — decide the case.
  • MRE 406 habit evidence may not be the strongest evidence, but when it comes to instruments such as deeds, wills, and the like, often it’s the best available. I’ve seen two cases, both will contests and one a jury trial, in which habit evidence carried the day. It takes strong evidence to overcome credible habit testimony.

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§ One Response to Overcoming the Notarial Presumption

  • Janice T Jackson says:

    Our policy is to make a copy of the signor’s Drivers License for the file and scan it into the electronic file. We don’t notarize for non-clients.

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