2004 notarial practice

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2004 notarial practice

  1. 1. QUALIFICATIONS OF NOTARY PUBLIC <ul><li>SECTION 1. Qualifications. - xxx To be eligible for commissioning as notary public, the petitioner: </li></ul><ul><li>must be a citizen of the Philippines; </li></ul><ul><li>(2) must be over twenty-one (21) years of age; </li></ul><ul><li>(3) must be a resident in the Philippines for at least one (1) year and maintains a regular place of work or business in the city or province where the commission is to be issued; </li></ul>
  2. 2. <ul><li>(4) must be a member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines; and </li></ul><ul><li>(5) must not have been convicted in the first instance of any crime involving moral turpitude.( RULE III ) </li></ul>
  3. 3. <ul><li>SEC. 4. Summary Hearing on the Petition . - The Executive Judge shall conduct a summary hearing on the petition and shall grant the same if: </li></ul><ul><li>(a) the petition is sufficient in form and substance ; </li></ul><ul><li>(b) the petitioner proves the allegations contained in the petition; and </li></ul>
  4. 4. <ul><li>(c) the petitioner establishes to the satisfaction of the Executive Judge that he has read and fully understood these Rules. </li></ul><ul><li>The Executive Judge shall forthwith issue a commission and a Certificate of Authorization to Purchase a Notarial Seal in favor of the petitioner. </li></ul>
  5. 5. <ul><li>REQUIREMENT OF PUBLICATION OF SUMMARY HEARING </li></ul><ul><li>SEC. 5. Notice of Summary Hearing. - (a) The notice of summary hearing shall be published in a newspaper of general circulation in the city or province where the hearing shall be conducted and posted in a conspicuous place in the offices of the Executive Judge and of the Clerk of Court . </li></ul>
  6. 6. <ul><li>JURISDICTION AND TERM </li></ul><ul><li>SEC. 11. Jurisdiction and Term. - A person commissioned as notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of two (2) years commencing the first day of January of the year in which the commissioning is made, unless earlier revoked or the notary public has resigned under these Rules and the Rules of Court. </li></ul>
  7. 7. <ul><li>POWERS OF A NOTARY PUBLIC </li></ul><ul><li>SECTION 1. Powers. - (a) A notary public is empowered to perform the following notarial acts: </li></ul><ul><li>(1) acknowledgments; </li></ul><ul><li>(2) oaths and affirmations; </li></ul>
  8. 8. <ul><li>( 3) jurats; </li></ul><ul><li>(4) signature witnessing; </li></ul><ul><li>(5) copy certifications; and </li></ul><ul><li>(6) any other act authorized by these Rules. ( RULE IV) </li></ul>
  9. 9. <ul><li>DIFFERENT NOTARIAL ACTS THAT A NOTARY PUBLIC MAY PERFORM </li></ul><ul><li>( RULE II ) </li></ul><ul><li>ACKNOWLEDGMENT </li></ul><ul><li>SECTION 1. Acknowledgment. - &quot;Acknowledgment&quot; refers to an act in which an individual on a single occasion: </li></ul><ul><li>(a) appears in person before the notary public and presents an integrally complete instrument or document; </li></ul>
  10. 10. <ul><li>(b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and </li></ul><ul><li>(c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity . </li></ul>
  11. 11. Example of “ACKNOWLEDGMENT” <ul><li>REPUBLIC OF THE PHILIPPINES) </li></ul><ul><li>CITY OF CEBU ) S.s. </li></ul><ul><li>BEFORE ME A NOTARY PUBLIC, for the City of Cebu, personally came and appeared MATEO CABALUNA, whose identity is proven by his Non-Professional Driver’s License No. 12345 valid until September 2009 and presented his CTC No. 7545 issued on 1/2/06 at Cebu City, Philippines, and who acknowledged to me that the same is his free and voluntary act and deed. </li></ul>
  12. 12. Necessity to present CTC <ul><li>NOTE: IS COMMUNITY TAX STILL REQUIRED TO BE STATED IN THE JURAT OR ACKNOWLEDGMENT? </li></ul><ul><li>ANSWER: YES </li></ul><ul><li>BASIS: </li></ul><ul><li>SEC. 163 [ Local Government Code of 1991 ]. </li></ul><ul><li>  </li></ul>
  13. 13. <ul><li>Presentation of Community Tax Certificate On Certain Occasions . – </li></ul><ul><li>(a) When an individual subject to the community tax acknowledges any document before a notary public, takes the oath of office upon election or appointment to any position in the government service; receives any license, certificate, or permit from any public authority; pays any tax or fee; receives any money from any public fund; transacts other official business; </li></ul>
  14. 14. <ul><li>or receives any salary or wage from any person or corporation, it shall be the duty of any person, officer, or corporation with whom such transaction is made or business done or from whom any salary or wage is received to require such individual to exhibit the community tax certificate. The presentation of community tax certificate shall not be required in connection with the registration of a voter. </li></ul>
  15. 15. <ul><li>b) When, through its authorized officers, any corporation subject to the community tax receives any license, certificate, or permit from any public authority, pays any tax or fee, receives money from public funds, or transacts other official business, it shall be the duty of the public official with whom such transaction is made or business done, to require such corporation to exhibit the community tax certificate. </li></ul>
  16. 16. <ul><li>AFFIRMATION OR OATH </li></ul><ul><li>SEC. 2. Affirmation or Oath. - The term &quot;Affirmation&quot; or &quot;Oath&quot; refers to an act in which an individual on a single occasion: </li></ul><ul><li>(a) appears in person before the notary public; </li></ul>
  17. 17. <ul><li>(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and </li></ul><ul><li>(c) avows under penalty of law to the whole truth of the contents of the instrument or document . </li></ul>
  18. 18. <ul><li>JURAT </li></ul><ul><li>SEC. 6. Jurat. - &quot;Jurat&quot; refers to an act in which an individual on a single occasion: </li></ul><ul><li>(a) appears in person before the notary public and presents an instrument or document; </li></ul>
  19. 19. <ul><li>(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; </li></ul><ul><li>(c) signs the instrument or document in the presence of the notary; and </li></ul><ul><li>(d) takes an oath or affirmation before the notary public as to such instrument or document. </li></ul>
  20. 20. EXAMPLE OF “JURAT” <ul><li>SUBSCRIBED AND SWORN TO BEFORE ME by MATEO CABALUNA, who is personally known to me and presented his CTC No. 7545 issued on 1/2/06 at Cebu City, Philippines, and who is the same person who personally signed before me the foregoing affidavit and acknowledged that he executed the same. </li></ul><ul><li>  </li></ul><ul><li>NOTARY PUBLIC </li></ul>
  21. 21. <ul><li>SIGNATURE WITNESSING </li></ul><ul><li>SEC. 14. Signature Witnessing. -The term &quot;signature witnessing&quot; refers to a notarial act in which an individual on a single occasion: </li></ul><ul><li>(a) appears in person before the notary public and presents an instrument or document; </li></ul>
  22. 22. <ul><li>(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and </li></ul><ul><li>(c) signs the instrument or document in the presence of the notary public. </li></ul>
  23. 23. EXAMPLE OF “SIGNATURE WITNESSING” <ul><li>BEFORE ME, a Notary Public in and for the City of Dumaguete, this 3 rd day of November 2007, personally appeared PEDRO CRUZ who presented to me ( name of document) which he voluntarily signed in my presence. </li></ul><ul><li>WITNESS MY HAND AND SEAL this_day of November 2007 at Dumaguete City </li></ul>
  24. 24. <ul><li>COPY CERTIFICATION </li></ul><ul><li>SEC. 4. Copy Certification. - &quot;Copy Certification&quot; refers to a notarial act in which a notary public: </li></ul><ul><li>(a) is presented with an instrument or document that is neither a vital record, a public record, nor publicly recordable; </li></ul>
  25. 25. <ul><li>(b) copies or supervises the copying of the instrument or document; </li></ul><ul><li>(c) compares the instrument or document with the copy; and </li></ul><ul><li>(d) determines that the copy is accurate and complete. </li></ul>
  26. 26. EXAMPLE OF “COPY CERTIFICATION” <ul><li>CERTIFICATION </li></ul><ul><li>This is to certify that I was presented with a______(name of instrument) which is neither a vital record, a public record, nor publicly recordable; that I copied/supervised the copying of the instrument; and that I compared the copied instrument with the original copy and I hereby certify that the copy is accurate and complete. </li></ul>
  27. 27. <ul><li>POWER TO CERTIFY THE AFFIXING OF SIGNATURE BY THUMB </li></ul><ul><li>(b) A notary public is authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization if: </li></ul>
  28. 28. <ul><li>(1)the thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document; </li></ul>
  29. 29. <ul><li>(2) both witnesses sign their own names in addition to the thumb or other mark; </li></ul><ul><li>(3) the notary public writes below the thumb or other mark: &quot;Thumb or Other Mark affixed by (name of signatory by mark) in the presence of (names and addresses of witnesses) and undersigned notary public&quot;; and </li></ul>
  30. 30. <ul><li>(4) the notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat, or signature witnessing. </li></ul>
  31. 31. For Example: <ul><li>( Thumbmark of Pedro Aurellano) </li></ul><ul><li>(Sgd. Maria Clara) (Sgd. Jose Abad) </li></ul><ul><li>“ Thumbmark affixed by Pedro Aurellano in the presence of Maria Clara, a resident of Cebu City, and Jose Abad, a resident of Tagbilaran City, and the undersigned Notary Public.” </li></ul><ul><li>NOTARY PUBLIC </li></ul>
  32. 32. <ul><li>POWER TO SIGN IN BEHALF OF A PERSON UNABLE TO SIGN </li></ul><ul><li>(c) A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document if: </li></ul><ul><li>(1) the notary public is directed by the person unable to sign or make a mark to sign on his behalf; </li></ul><ul><li>(2) the signature of the notary public is affixed in the presence of two disinterested and unaffected witnesses to the instrument or document; </li></ul>
  33. 33. <ul><li>(3) both witnesses sign their own names ; </li></ul><ul><li>(4) the notary public writes below his signature: &quot;Signature affixed by notary in presence of (names and addresses of person and two 2] witnesses)&quot;; and </li></ul><ul><li>(5) the notary public notarizes his signature by acknowledgment or jurat. </li></ul>
  34. 34. <ul><li>PROHIBITIONS OF A NOTARY PUBLIC </li></ul>
  35. 35. <ul><li>( RULE : Notarial Act must be performed within regular place of work or business) </li></ul><ul><li>SEC. 2. Prohibitions. - (a) A notary public shall not perform a notarial act outside his regular place of work or business ; provided, however, that on certain exceptional occasions or situations, a notarial act may be performed at the request of the parties in the following sites located within his territorial jurisdiction: </li></ul>
  36. 36. <ul><li>EXCEPTIONS : </li></ul><ul><li>(1) public offices, convention halls, and similar places where oaths of office may be administered; </li></ul><ul><li>(2) public function areas in hotels and similar places for the signing of instruments or documents requiring notarization; </li></ul>
  37. 37. <ul><li>(3) hospitals and other medical institutions where a party to an instrument or document is confined for treatment; and </li></ul><ul><li>(4) any place where a party to an instrument or document requiring notarization is under detention. </li></ul>
  38. 38. <ul><li>ADDITIONAL PROHIBITION : </li></ul><ul><li>(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document – </li></ul><ul><li>(1) is not in the notary's presence personally at the time of the notarization; and </li></ul><ul><li>(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules. </li></ul>
  39. 39. <ul><li>DISQUALIFICATIONS </li></ul><ul><li>SEC. 3. Disqualifications. - A notary public is disqualified from performing a notarial act if he: </li></ul>
  40. 40. <ul><li>(a) is a party to the instrument or document that is to be notarized; </li></ul><ul><li>(b) will receive , as a direct or indirect result, any commission , fee , advantage , right , title , interest , cash, property , or other consideration , except as provided by these Rules and by law; or </li></ul>
  41. 41. <ul><li>(c) is a spouse , common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree . ( SECTION 3, RULE IV) </li></ul>
  42. 42. <ul><li>UNDER WHAT CIRCUMSTANCES MAY A NOTARY PUBLIC REFUSE TO NOTARIZE A DOCUMENT? </li></ul><ul><li>SEC. 4. Refusal to Notarize. –xxx xxx </li></ul>
  43. 43. <ul><li>(a) the notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral ; </li></ul><ul><li>(b) the signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act; and </li></ul><ul><li>(c) in the notary's judgment, the signatory is not acting of his or her own free will . </li></ul>
  44. 44. <ul><li>ANOTHER INSTANCE : </li></ul><ul><li>FALSE AND INCOMPLETE CERTIFICATE </li></ul><ul><li>SEC. 5. False or Incomplete Certificate. - A notary public shall not: </li></ul><ul><li>(a) execute a certificate containing information known or believed by the notary to be false. </li></ul><ul><li>(b) affix an official signature or seal on a notarial certificate that is incomplete. </li></ul>
  45. 45. <ul><li>IMPROPER INSTRUMENTS OR DOCUMENTS </li></ul><ul><li>SEC. 6. Improper Instruments or Documents. - A notary public shall not notarize: </li></ul><ul><li>(a) a blank or incomplete instrument or document; or </li></ul><ul><li>(b) an instrument or document without appropriate notarial certification. </li></ul>
  46. 46. <ul><li>REQUIREMENT TO KEEP A NOTARIAL REGISTER </li></ul><ul><li>WHAT IS A NOTARIAL REGISTER? </li></ul><ul><li>SEC. 5. Notarial Register. - &quot;Notarial Register&quot; refers to a permanently bound book with numbered pages containing a chronological record of notarial acts performed by a notary public. </li></ul>
  47. 47. <ul><li>SECTION 1. Form of Notarial Register. - (a) A notary public shall keep, maintain, protect and provide for lawful inspection as provided in these Rules, a chronological official notarial register of notarial acts consisting of a permanently bound book with numbered pages. </li></ul><ul><li>( RULE VI) </li></ul>
  48. 48. <ul><li>ENTRIES IN THE NOTARIAL REGISTER </li></ul><ul><li>(1) the entry number and page number; </li></ul><ul><li>(2) the date and time of day of the notarial act; </li></ul><ul><li>(3) the type of notarial act; </li></ul><ul><li>(4) the title or description of the instrument, document or proceeding; </li></ul>
  49. 49. <ul><li>(5) the name and address of each principal; </li></ul><ul><li>(6) the competent evidence of identity as defined by these Rules if the signatory is not personally known to the notary; </li></ul><ul><li>(7) the name and address of each credible witness swearing to or affirming the person's identity; </li></ul>
  50. 50. <ul><li>(8) the fee charged for the notarial act; </li></ul><ul><li>(9) the address where the notarization was performed if not in the notary's regular place of work or business; and </li></ul><ul><li>(10) any other circumstance the notary public may deem of significance or relevance.( SECTION 2) </li></ul>
  51. 51. <ul><li>REQUIREMENT OF SIGNING NOTARIAL REGISTER BY PRINCIPAL AND WITNESSES </li></ul><ul><li>SEC. 3. Signatures and Thumbmarks. - At the time of notarization, the notary's notarial register shall be signed or a thumb or other mark affixed by each: </li></ul><ul><li>(a) principal; </li></ul><ul><li>(b) credible witness swearing or affirming to the identity of a principal; and </li></ul><ul><li>(c) witness to a signature by thumb or other mark, or to a signing by the notary public on behalf of a person physically unable to sign. </li></ul>
  52. 52. RELEVANT CASES <ul><li>ROSALINDA BERNARDO VDA DE ROSALES, complainant, vs. ATTY. MARIO G. RAMOS, respondent A.C. No. 5645.  July 2, 2002 </li></ul>
  53. 53. RELEVANT CASES <ul><li>“ The notary public is further enjoined to record in his notarial registry the necessary information regarding the document or instrument notarized and retain a copy of the document presented to him for acknowledgment and certification especially when it is a contract . The notarial registry is a record of the notary public's official acts.  Acknowledged documents and instruments recorded in it are considered public documents.  </li></ul>
  54. 54. RELEVANT CASES <ul><li>If the document or instrument does not appear in the notarial records and there is no copy of it therein, doubt is engendered that the document or instrument was not really notarized, so that it is not a public document and cannot bolster any claim made based on this document .  Considering the evidentiary value given to notarized documents, the failure of the notary public  to  record  the  document in his notarial registry is tantamount to falsely making it appear that the document was notarized when in fact it was not.” </li></ul>
  55. 55. <ul><li>RESIGNATION OF NOTARY PUBLIC </li></ul><ul><li>SEC. 2. Resignation. - A notary public may resign his commission by personally submitting a written, dated and signed formal notice to the Executive Judge together with his notarial seal, notarial register and records . Effective from the date indicated in the notice, he shall immediately cease to perform notarial acts. In the event of his incapacity to personally appear, the submission of the notice may be performed by his duly authorized representative. ( SECTION 2, RULE X) </li></ul>
  56. 56. <ul><li>REVOCATION OF NOTARIAL COMMISSION </li></ul><ul><li>SECTION 1. Revocation and Administrative Sanctions. - (a) The Executive Judge shall revoke a notarial commission for any ground on which an application for a commission may be denied. </li></ul>
  57. 57. <ul><li>OTHER GROUNDS: </li></ul><ul><li>(b) In addition, the Executive Judge may revoke the commission of, or impose appropriate administrative sanctions upon, any notary public who: </li></ul>
  58. 58. <ul><li>(1) fails to keep a notarial register; </li></ul><ul><li>(2) fails to make the proper entry or entries in his notarial register concerning his notarial acts; </li></ul><ul><li>(3) fails to send the copy of the entries to the Executive Judge within the first ten (10) days of the month following; </li></ul>
  59. 59. <ul><li>(4) fails to affix to acknowledgments the date of expiration of his commission; </li></ul><ul><li>(5) fails to submit his notarial register, when filled, to the Executive Judge; </li></ul><ul><li>(6) fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be required by the judge; </li></ul>
  60. 60. <ul><li>(7) fails to require the presence of a principal at the time of the notarial act; </li></ul><ul><li>(8) fails to identify a principal on the basis of personal knowledge or competent evidence; </li></ul><ul><li>(9) executes a false or incomplete certificate under Section 5, Rule IV; </li></ul>
  61. 61. <ul><li>(10) knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and </li></ul><ul><li>(11) commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of commission or imposition of administrative sanction. ( SECTION 1, RULE XI) </li></ul>
  62. 62. <ul><li>PROCEDURE IN DISCIPLINING A NOTARY PUBLIC </li></ul><ul><li>(c) Upon verified complaint by an interested, affected or aggrieved person, the notary public shall be required to file a verified answer to the complaint. </li></ul>
  63. 63. <ul><li>If the answer of the notary public is not satisfactory, the Executive Judge shall conduct a summary hearing . If the allegations of the complaint are not proven, the complaint shall be dismissed. If the charges are duly established, the Executive Judge shall impose the appropriate administrative sanctions. In either case, the aggrieved party may appeal the decision to the Supreme Court for review . Pending the appeal, an order imposing disciplinary sanctions shall be immediately executory, unless otherwise ordered by the Supreme Court. </li></ul>
  64. 64. <ul><li>(d) The Executive Judge may motu proprio initiate administrative proceedings against a notary public, subject to the procedures prescribed in paragraph (c) above and impose the appropriate administrative sanctions on the grounds mentioned in the preceding paragraphs (a) and (b). </li></ul>

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