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.

Authentication of an Acknowledgment of Paternity and the Notary’s Duty to Record

October 15, 2019 § 1 Comment

When Lora Ledet was 8 or 9 months pregnant, she began dating Spencer Diaz. When her son was born no father was listed on the birth certificate, and the child’s surname was that of his mother.

Lora and Spencer began living together, and, in April, 2014, an acknowledgment of paternity was filed per MCA 93-9-28 showing Spencer as the child’s father. The Department of Vital Records issued a revised birth certificate showing Spencer as the father and changing the child’s last name to Diaz.

After Lora and Spencer separated in October, 2015, DHS filed a complaint for child support. Spencer answered that the complaint was the first knowledge he had that he had been added to the child’s birth certificate, and that the acknowledgment was a forgery. He asked the court to disestablish paternity and terminate parental rights. Following a hearing, the chancellor denied him relief.

Spencer appealed, and two issues he raised were that the chancellor erroneously admitted the acknowledgment into evidence, and that its notarization was ineffective due to the notary’s failure to record the transaction.

On September 10, 2019, the COA affirmed in Diaz v. DHS and Ledet. Judge Westbrooks first laid out the standard to be applied when reviewing a trial judge’s ruling on admissibility of evidence:

¶6. “The admission of evidence is within the discretion of the chancellor, and reversal is not warranted unless judicial discretion is abused.” Sproles v. Sproles, 782 So. 2d 742, 749 (¶29) (Miss. 2001) (citing Smith v. Jones, 654 So. 2d 480, 486 (Miss. 1995)).

She then turned her attention to Spencer’s arguments on admission of the document into evidence and notary’s record-keeping:

¶7. Under Mississippi Code Annotated section 41-57-9 (Rev. 2013), “[a]ny copy of the records of birth, sickness or death, when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima facie evidence in all courts and places of the facts therein stated.”

¶8. Moreover, the simple acknowledgement of paternity form was submitted in accordance with Mississippi Code Annotated section 93-9-28. There is a method for an alleged father to voluntarily acknowledge a child as his own. In In re Estate of Farmer ex rel. Farmer, 964 So. 2d 498, 499-500 (¶4) (Miss. 2007), the Mississippi Supreme Court held that “Mississippi Code Annotated Section 93-9-28 (Rev. 2004) establishes a procedure by which the natural father of a [child born out of wedlock] may voluntarily acknowledge the child as his own.” “[T]he execution of [an] acknowledg[]ment of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child.” Id. (alteration in the original). Section 93-9-28(1) provides:

The Mississippi State Department of Health in cooperation with the Mississippi Department of Human Services shall develop a form and procedure which may be used to secure a voluntary acknowledgement of paternity from the mother and father of any child born out of wedlock in Mississippi. The form shall clearly state on its face that the execution of the acknowledgement of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child. The form shall also clearly indicate the right of the alleged father to request genetic testing through the Department of Human Services within the one-year time period specified in subsection (2)(a)(i) of this section and shall state the adverse effects and ramifications of not availing himself of this one-time opportunity to definitively establish the paternity of the child. When such form has been completed according to the established procedure and the signatures of both the mother and father have been notarized, then such voluntary acknowledgement shall constitute a full determination of the legal parentage of the child. The completed voluntary acknowledgement of paternity shall be filed with the Bureau of Vital Statistics of the Mississippi State Department of Health. The name of the father shall be entered on the certificate of birth upon receipt of the completed voluntary acknowledgement.

¶9. Here, Diaz maintains that the notary’s failure to have the parties sign the book under Mississippi Code Annotated section 25-33-5 (Rev. 2010) prohibits the admittance of the acknowledgment and reissued birth certificate. This Code section provides that “[e]very notary public shall keep a fair register of all his official acts, and shall give a certified copy of his record, or any part thereof, to any person applying for it and paying the legal fees therefor.” The statute requires only that the notary keep a record of all of [the] official acts. The section does not outline how to maintain that record. But Title 1 of the Mississippi Administrative Code, part 5, rule 5.16(B) (Nov. 30, 2011) provides that “[i]f the principal is not personally known to the notary, the notary may require, the signature of the principal . . . .” (Emphasis added).

¶10. Our Mississippi Supreme Court has held that the mere failure to strictly follow form will not render an acknowledgment void. See Estate of Dykes v. Estate of Williams, [Fn omitted] 864 So. 2d 926, 931 (¶20) (Miss. 2003); see also in re Jefferson, No. 11-51958-KMS, 2015 WL 359901, at *5 (Bankr. S.D. Miss. Jan. 26, 2015) (holding that Mississippi Code Annotated section 25-33-5 (Rev. 2010) 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).

¶11. In accordance with Mississippi caselaw, we find that lack of logbook entry does not deem the acknowledgment void. The chancery court considered all the testimony presented during the trial and followed the statutory procedures set forth in admitting the documents into evidence. Accordingly, we find no error.

A couple of thoughts:

  • Paragraph 6 is a reminder that it is awfully tough to reverse a chancellor on admission of evidence in a bench trial, which is understandable because there is no jury to protect from harmful influences.
  • The most complicated aspect of this case is the confuseration of spelling between “acknowledgment” and “acknowledgement.” Both are correct; however, the version with no “e” after the “g” is the preferred American usage, and the other is preferred in the UK, like “judgment” (American) and “judgement” (British).

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