Massachusetts is notorious for having hyper-technical rules about notarization. The trouble started in 2009 with the bankruptcy case of Matthew H. Giroux. Mr. Giroux signed a mortgage in front of a notary public. He acknowledged to the notary public that he signed the mortgage voluntarily for its stated purpose. The notary public signed where he was supposed to, affixed his notarial seal, and inserted the expiration of his commission. The mortgage was then recorded in the appropriate registry of deeds. The notary public, however, forgot to insert Mr. Giroux’s name in the certificate of acknowledgement (the notary block on the mortgage); so it said: “[B]efore me personally appeared _____________ to me known to be the person (or persons) described in and who executed the foregoing instrument . . . .” The bankruptcy court didn’t like that and invalidated the mortgage.
Ok, lesson learned. Notaries—don’t forget to fill in the name of the person who signed the mortgage.
Then, in 2013, an appellate bankruptcy court muddied the waters even further in the case of Shawn and Annemarie Kelley. The court invalidated the Kelleys’ mortgage that was signed under a power of attorney because the certificate of acknowledgement indicated that the individual who signed the mortgage on behalf of Mr. and Mrs. Kelley acknowledged that she did so as her own free act (i.e., the free act of the person who physically put pen to paper). The court found that the acknowledgement should have said that she signed it as the free act and deed of the persons on whose behalf she was signing (i.e., the Kelleys). Not only that, but the certificate of acknowledgement on the offending mortgage mirrored (more or less) the form certificate of acknowledgement contained in an Executive Order issued by the Governor of Massachusetts (which effectively served as the Massachusetts manual for notaries public). The court didn’t care, and essentially found that the form used (i.e., the form that the Governor ordered that all notaries should use) was incorrect.
The court invalidated the Kelleys’ mortgage that was signed under a power of attorney…
Well, I can only guess that the Massachusetts legislature thought this state of affairs was a little silly (as do I, if you couldn’t tell from the tone of the preceding paragraph). On October 6, 2016, a new statute was passed in Massachusetts called “An Act Regulating Notaries Public to Protect Consumers and the Validity and Effectiveness of Recorded Instruments.” The statute seeks to accomplish a few very important things. First of all, it essentially replaces the old notary law with the Executive Order referenced above (the one that the court said had incorrect notarial forms). In other words, the legislature deleted the old statute and (more or less) copied and pasted the Executive Order in its place. Now there can be almost no argument (but you know us lawyers and our wacky arguments) that the forms promulgated by the Governor are not sufficient—the Executive Order and the statutory forms are almost identical. Second, the Act is explicit that notaries public may use the new statutory forms, but that the existence of those forms “shall not preclude the use of any other forms lawfully used as required or authorized by any general or special law or any regulation or executive order regulating notaries public.” Third, the new law explicitly states that the certificate of acknowledgement is not invalid if it acknowledges “the voluntary act of an individual executing a document in a representative capacity [presumably including persons acting under power of attorney as well as officers/members/managers signing on behalf of a corporation or limited liability company] but fail[s] to acknowledge the deed or instrument as the voluntary or free act of the principal or grantor,” directly overruling the holding in the Kelley case.
The new statute comes into effect on or about January 4, 2017.
So, the moral of this story is (a) the Massachusetts legislature just gave us some wiggle room when it comes to notarizing mortgages and deeds (but just a little wiggle room; note, for example, the new statute does not necessarily solve the problem noted in the introductory paragraph above) and (b), Massachusetts has new statutory forms for acknowledgements, oaths (jurats), etc. These new statutory forms may or may not be consistent with many banks’ current forms, depending whether they use the old forms from the Executive Order (which are mostly, but not entirely, identical), whether they use the old statutory forms (which remain acceptable for use), or whether they use some hybrid (which some banks may have adopted in the wake of Kelley and related cases).