Notarizations Outside the United States

We’ve all been there. A lender emails you with a question regarding an upcoming refinance transaction. The borrower(s) are off galivanting in [insert foreign country of choice here] … while you are stuck behind your desk. The borrower(s) are having too much fun and will not be back in the U.S. before the loan closes. The lender wants to make sure that you can record, and the title company will insure a loan where the documents have been signed in a foreign country.

Is there a problem insuring this loan with a mail-away closing notarized in a foreign country?

Here’s the down and dirty for having a document notarized in a foreign country.

First, it is important to note that there is a possibility that a foreign notary may attempt to use a notarization form written in a foreign language. Generally, the notary acknowledgment should always be written in (or have been translated into) the English language, including the notary seal. The only exception to this general rule is where an apostille written in English is attached to the acknowledgment written in a foreign language. See footnote *** below for a brief description of apostilles.

Second, an acknowledgment on documents dealing with Mississippi land must be compliant with Mississippi statutes on notarizations taking place outside the United States.

• Are “military notaries” that otherwise appear regular on their face acceptable?

Yes. Miss. Code Ann. § 25-33-23* recognizes as valid those notary acknowledgments performed before military notaries. Those documents will typically bear a “Federal Notary” seal. Military notaries can include commissioned officers, enlisted paralegals, judge advocates or civilian lawyers working as legal assistance attorneys and licensed to practice law in the United States. Federal law does not require military notaries to use a seal. Their signature and title alone is sufficient. However, the military recommends the use of a seal because it enhances the acceptability of a notarized document. If a seal is used, it should contain a reference to the federal statute regarding military notaries: Title 10 U.S.C. 1044a.

• Are notary acknowledgments from U.S. foreign service officers and consular officers acting within their appointed jurisdictions acceptable?

Yes. Miss. Code Ann. § 89-3-13** recognizes as valid those notary acknowledgments performed by foreign service officers or consular officers of the United States if those acknowledgments are performed within the jurisdiction of their appointed country by (1) any commissioner residing in such country who may be appointed by Mississippi’s governor; or (2) any ambassador, foreign minister, secretary of legation, or consul of the United States to the foreign country in which the party or witness may reside or be. The acknowledgment language must show that the party (borrower), or the party (borrower) and witness, were identified before the officer, and that the party acknowledged the execution of the instrument, or that the execution was duly proved by the witness.

• Are foreign notary acknowledgments that relies solely on the laws of the foreign jurisdiction to be valid acceptable?

No, not unless the acknowledgment is accompanied by a duly executed apostille. Miss. Code Ann. § 89-3-13 recognizes as valid those notary acknowledgments performed by authorized parties under the law of the jurisdiction where the act is performed. The statute does not expressly require an apostille for the acknowledgment to be valid. However, because of the difficulty and uncertainty in authenticating a foreign notary acknowledgment under the laws of the jurisdiction in which it was performed, underwriters in Mississippi generally require an apostille to authenticate any foreign notary acknowledgment that relies solely on the laws of the foreign jurisdiction to be valid under Miss. Code Ann. § 89-3-13. The acknowledgment language must show that the party (borrower), or the party (borrower) and witness, were identified before the officer, and that the party acknowledged the execution of the instrument, or that the execution was duly proved by the witness.

EXAMPLE:

Let’s run through a quick scenario. Let’s assume that borrower(s) are in Canada or Saudi Arabia. Unfortunately, neither Canada nor Saudi Arabia has adopted or agreed to be bound by the rules of The Hague Convention Abolishing the Requirement for Legalization of Foreign Public Documents. Therefore, in order for most underwriters to be willing to insure the transaction and issue a closing protection letter, if requested by a lender, the borrowers would need to seek out a qualified military notary, if that option is available to them, or seek out a qualified U.S. foreign service officer or consular officer of the United States (by making an appointment at the nearest Embassy).

If you are an Agent Member or Agent Staff Member and have a question regarding the notarization of a document in a foreign country, please contact an Underwriter Member for more details regarding their specific underwriting requirements!

REFERENCE:

* Miss. Code Ann. § 25-33-23. Notarial acts of commissioned officers

In addition to the acknowledgment of instruments and the performance of other notarial acts in the manner and form and as otherwise authorized by law, instruments may be acknowledged, documents attested, oaths and affirmations administered, depositions and affidavits executed, and other notarial acts performed before or by any commissioned officer in active service of the armed forces of the United States with the rank of second lieutenant or higher in the army or marine corps, or with the rank of ensign or higher in the navy or coast guard, or with equivalent rank in any other component part of the armed forces of the United States, by any person who either (a) is a member of the armed forces of the United States or the husband or wife of a member of the armed forces of the United States; or (b) is serving as a merchant seaman outside the limits of the United States included within the 48 states and the District of Columbia; or (c) is outside said limits by permission, assignment, or direction of any department or official of the United States government, in connection with any activity pertaining to the prosecution of any war in which the United States is then engaged.

Such acknowledgments of instruments, attestation of documents, administration of oaths and affirmations, executions of depositions and affidavits, and performance of other notarial acts, heretofore or hereafter made or taken, are hereby declared legal, valid, and binding, and instruments and documents so acknowledged, authenticated, or sworn to shall be admissible in evidence and eligible to record in this state under the same circumstances and with the same force and effect as if such acknowledgment, attestation, oath, affirmation, deposition, affidavit, or other notarial act had been made or taken within this state before or by a duly qualified officer or official as otherwise provided by law.

In the taking of acknowledgments and the performing of other notarial acts requiring certification, a certificate endorsed upon or attached to the instrument or documents, which shows the date of the notarial act and which states, in substance, that the person appearing before the officer acknowledged the instrument as his act or made or signed the instrument or document under oath, shall be sufficient for all intents and purposes. The instrument or document shall not be rendered invalid by the failure to state the place of execution or acknowledgment.

If the signature, rank, and branch of service or subdivision thereof, of any such commissioned officer appear upon such instrument or document or certificate, no further proof of the authority of such officer so to act shall be required, and such action by such commissioned officer shall be prima facie evidence that the person making such oath or acknowledgment is within the purview of this section.

** Miss. Code Ann. § 89-3-13. Acknowledgment in a foreign country

If the party who shall execute any conveyance of lands or personal property situated in this state, or if the witnesses thereto, reside or be in a foreign country, the acknowledgment or proof of the execution of such conveyance may be made before any court of record, or the mayor or chief magistrate of any city, borough, or corporation of such foreign country in which the party or witness resides or may be; or before any commissioner residing in such country who may be appointed by the Governor, or before any ambassador, foreign minister, secretary of legation, or consul of the United States to the foreign country in which the party or witness may reside or be; or before any notary public commissioned by the government of the foreign country or any other person authorized by said government to take oaths or acknowledgments; but the certificate shall show that the party, or the party and witness, were identified before the officer, and that the party acknowledged the execution of the instrument, or that the execution was duly proved by the witness, and it shall be as good and effectual as if made and certified by a competent officer of this state.

*** An apostille is a certificate that authenticates the seals and signatures of officials on public documents such as birth certificates, notarials, court orders, or any other document issued by a public authority so that they can be recognized in foreign countries that are parties to the Convention. In order for the apostille to be used, both the issuing and receiving countries must be a party to the 1961 Hague Convention and the proper form of apostille must be used.