Sunday, January 19, 2014

Notary Fraud in South Carolina Timeshare

Notary fraud is a criminal misdemeanor in South Carolina. South Carolina Code Section 26-1-95, false certification by notary, states that "[a] notary public who, in his official capacity, falsely certifies to affirming, swearing, or acknowledging of a person or his signature to an instrument, affidavit, or writing is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days. A notary public convicted under the provisions of this section shall forfeit his commission and shall not be issued another commission. The court in which the notary public is convicted shall notify the Secretary of State within ten days after conviction."

So what is a false certification? SC Code Section 26-3-40 states that "[t]he person taking an acknowledgement shall certify that (1) The person acknowledging appeared before him and acknowledged he executed the instrument; and (2) The person acknowledging was known to the person taking the acknowledgment or that the person taking the acknowledgment had satisfactory evidence that the person acknowledging was the person described in and who executed the instrument.

A document with the signature of an affiant but without a notarization, or a document with a notarization but without the signature of the affiant should strike you as odd. It would appear that notarizing a document without the affiant appearing before the notary public and notarizing a document without knowing the affiant or obtaining satisfactory evidence of the identity of the affiant otherwise would constitute a false certification.

Here is a link to a press release from the South Carolina Law Enforcement Division (SLED) relating to a Charleston County employee, page four containing the criminal charge against the employee for false certification by a notary in violation of SC Code Section 26-1-95, discussed herein above. It does appear that these acts of notary fraud are investigated and prosecuted. The South Carolina Code further provides for notification by the convicting court to the Secretary of State for permanent forfeiture of the convicted person's notary public commission. The South Carolina Secretary of State's Office directed me to complain to the Beaufort County Sheriff's Office as the proper law enforcement agency to make a report for any such activity on Hilton Head Island.

After a timeshare pitch, if you've taken advantage of the opportunity of your lifetime, someone may briskly review your documents with you (likely not actually reading the documents, just listening to the timeshare salesman explain the details and relying upon the timeshare salesman to tell you the truth about the terms). Just sign here, here, and here, and date here, and initial here. How many people are with you to witness your signature? Just one, the singular timeshare salesman.

The salesman leaves and returns with a copy of the documents you just signed (yes, all of the timeshare salesperson's handwritten notes have disappeared). Sometime later when you return home or try to use your timeshare, you review your documents and realize, among other things, that those notes must have been discarded somehow. You look closely and see that none of these terms seem familiar. And why does this particular page look incomplete?

The document is unintelligible in legalize and timeshare mumbo jumbo, but you clearly identify your signature and the signature of the timeshare salesperson who was present for your signing of the document above an incomplete section of the document reserved for the notarization of a notary public. Why did you sign a document that was required to be notarized, yet a notary public was not present for your purchase and never notarized the document? Why did the timeshare salesperson pre-complete the date, month, and year of the notary public's signature block? Did a notary public go behind you, without your knowledge, without knowing you or confirming your identity, and without you certifying your signature of the same? Does this constitute a false certification by a notary public?

I do not yet know the answer. Please do not consider any information in this particular blog post and this blog in general as legal advice. The law continues to evolve and change, and the blog posts are rather stagnant after being written. Your situation is unique, and you should consult with an attorney regarding the particular circumstances in your life. This law firm does not defend notary fraud. However, we do advocate for victims of timeshare fraud and as it may relate to notary fraud.