Paul Hastings LLP (“Hastings”), a leading global law firm, found proof that a party on the other side of a lawsuit did not appear before the notary when he signed critical documents to which were attached verification certificates. They learned that the signer was 2,000 miles away from the notary on the dates in question; and evidence showed that it happened three times. When the presiding Delaware court learned of the deceit, the court made a landmark decision that will undoubtedly have an effect on legal teams who occasionally notarize documents without requiring the physical presence of signers.

This case, Bessenyei v. Vermillion, is one that most legal assistants can relate to. In the rush to respond to short deadlines or file document with the court, notarial acts can seem like insignificant, pesky formalities to many clients and attorneys. If letting a rule slide a few inches speeds up the progress of a client’s lawsuit, the client will certainly not be opposed to it. If no one is being dishonest or harming anyone and the signer’s signature is authentic, it is hard for a legal assistant to say “no”.

Until you have been in the shoes of attorneys or legal assistants, it is hard to understand how inconsequential it seems to push the rules a bit when you fully believe that you are doing it in your clients’ best interests and without intent to deceive or injure others. In fact, the presiding Delaware court noted that there was no attempt to be dishonest in this lawsuit.

As you will learn below, the case described below is about a notary notarizing for a client at the direction of her boss, who later testified that he relied upon her to determine if her notarization would be valid. This article proves that personal appearance is more than a mere technicality.

Background

In 2012, Gyorgi Bessenyei (“Bessenyei”) and Robert S. Goggin, III (“Goggin”), became plaintiffs in a Delaware lawsuit initiated against several shareholders in a company named Vermillion, Inc. (“Vermillion”).

Plaintiffs Bessenyei and Goggin were also shareholders in Vermillion; in their lawsuit, they alleged that the shareholders that they were suing (the “Defendants”) had reduced the number of board member positions, and that the action was not in the best interest of Vermillion or its shareholders. Bessenyei and Goggin claimed that the Defendants had breached their fiduciary duties.

Vermillion was incorporated under Delaware laws; therefore, Delaware was the correct jurisdiction for the filing of the lawsuit. Plaintiff Goggin, who is also a lawyer in Pennsylvania, drafted documents to be filed in a Delaware court. In Delaware, all complaints and related pleadings that are filed by plaintiffs in a lawsuit must be accompanied by a notarized verification from each plaintiff.

Notarized verifications of this type serve two purposes for Delaware courts: 1) They state that each party involved in the lawsuit swears or affirms that he or she is telling the truth to the best of his or her knowledge; and 2) they authenticate the signatures affixed to the documents.

The Smoking Gun: Venue

Bessenyei signed various documents dated May 25, June 1, and June 26, 2012, and they were accompanied by the required notarized verifications and tendered with the court’s clerk. Each of them indicated that they were “subscribed to” before Jane Doe*, a Pennsylvania notary who worked for attorney Goggin (*Jane Doe is a pseudonym).

The venue on the document also indicated that Bessenyei was in Philadelphia, Pennsylvania when the document was executed and sworn to, or affirmed, in the presence of Ms. Doe. However, a transcript from testimony in the court case reveals that during a deposition, Bessenyei made conflicting statements regarding his whereabouts during the month of June, 2012. A member of the Hastings legal team said, “He [Bessenyei] first claimed that he was not in the United States during the month of June of 2012. When confronted with the verifications, he subsequently claimed not to remember any details of its execution, whether he was in Philadelphia or whether he was in the United States.”

Statements in the transcript further show that Bessenyei changed his story and claimed to have completed the transaction through the use of an internet video conference that occurred between him (while he was visiting a Caribbean location) and the Philadelphia notary Jane Doe in Goggin’s office. The Hastings attorney countered back with a request for proof that showed that such a notarization was acceptable, but none was produced.

In addition, the Hastings attorney suggested that if Bessenyei was in the Caribbean, he should have been able to remember the occasion. The transcript reads, “…if Mr. Bessenyei, for example, purported to appear electronically before the notary by video conference, I submit it’s not necessarily an easy thing to find a video conference provider in the Caribbean. It’s something he would have remembered. We’re curious to find out the details of just where Mr. Bessenyei was when he signed these verifications.”

Furthermore, a court memo indicates that the dates on the June 1 and June 26 notarizations were incorrect. The May 25 notarization was performed after Hungarian national Bessenyei asked Goggin, a Pennsylvania attorney, whether it was possible for Goggin to notarize the verification because Bessenyei was “down in the islands and did not know where he could get anything notarized.”

The same memo shows that Ms. Doe defended her position to go forward with the notarization while Bessenyei was out of the country. She said that she researched the question using Google before agreeing to notarize the signature on the documents in the absence of Bessenyei’s physical presence. She could not remember, however, if she had researched Pennsylvania notary law exclusively, or notary laws in general.

The plaintiffs also claimed that Doe relied upon a “credible witness” exception in Pennsylvania notary law, and that she consulted a colleague to make sure that she understood the law. This source also notes that the “credible witness” exception is for use in identifying a signer if he or she does not have another form of ID available for the presiding notary. It does not allow for notarizing during video conferencing without physical presence of the signer.

The court concluded that Ms. Doe did not consult or seek guidance from her notary public administrator, her Pennsylvania notary handbook, or a notary association.

Ms. Doe testified that she performed the three notarizations in question at the direction of Goggin, her employer. The court’s memorandum explains why Goggin says that he asked her to do so:

“Goggin, one of the Plaintiffs in this action and a practicing attorney in Philadelphia, claims that, although he had previously only seen notarizations performed when the signer was actually in the presence of the notary, he approached [Ms. Doe] about notarizing Bessenyei’s signature and relied on her determination that notarizing the document of someone outside her presence was permitted. As a Pennsylvania attorney, Goggin ought to have known better.”

The unexpected result of this case is that the court dismissed Bessenyei v. Vermillion with prejudice, meaning that the matter is over and final and that the plaintiffs have no recourse. In other words, this important lawsuit was dismissed on a technicality that resulted from a notary’s decision to go along with her boss and his client, and in opposition to a cornerstone legal requirement of proper notary conduct.

Next Steps

Now that this decision has become well-known due to its publication on legal media sites such as Martindale.com and Lexology.com, it is not a stretch to expect that attorneys will use this strategy in the future.

Spread the word and share this article with those who can benefit from reading it. Legal assistants have shared specific examples in which attorneys and clients might be inclined to ask them to notarize documents without meeting the requirement of personal appearance. We have listed a few below.

-For instance, if a client works long hours and cannot get to the office during business hours to sign before the notary, an attorney might suggest that the client simply sign and drop the document in the mail slot after he or she gets off work. Upon receipt of the signed document, a legal assistant could be expected to notarize the document.

-Also, if a client drops in during a morning when a legal assistant has taken personal time off to take his or her child to the doctor, he or she might be requested to notarize the client’s signature after the doctor’s appointment.

-An attorney who works late before leaving on a two-week vacation might leave an affidavit in the legal assistant’s inbox with a request that he or she notarize the document and file it with the court the next day in order to meet a deadline. Or, suppose another legal assistant presents a document that has been signed by his or her brother to a co-worker and asks him or her to notarize the document because the brother cannot make it into the law office during office hours.

We can all agree that these situations are not brought to notaries by attorneys out of deceit or fraud. They are events that some might see as a means to hasten progress. The ruling in Bessenyei v. Vermillion will undoubtedly be a wakeup call for those who have marginalized the requirement of personal appearance. Feel free to pass along links to this article via email, or share it on your social media pages. We hope it is 100% that a signer must personally appear in front of notary for notarization to be valid!

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Notice of Disclaimer: The information provided herein is not intended to be an authoritative statement of law. Notary laws differ from jurisdiction to jurisdiction and may be interpreted or applied differently depending on your state’s statutes or situations. By providing this information, we are not acting as your attorney. We are providing this information based on long-established and recognized notarial standards and practices. If you have legal questions regarding acts or conduct as a notary public, please consult with an attorney or refer to your state’s statutes or other appropriate legal resources.