Until December 2008, employers of notaries public believed that under the Illinois Notary Act, an employer of a notary could only be liable for damages if:
(a) the notary public was acting within the scope of the notary’s employment at the time the notary engaged in the official misconduct; and
(b) the employer consented to the notary public’s official misconduct.
A recent development in the case of Vancura v. Katris, et al. illustrated that the generally held belief was untrue. Vancura successfully presented an alternative theory alleging that the employer of a notary should be held liable for damages caused by an improperly notarized document under a theory of negligent supervision. Vancura alleged that Kinko’s breached its duty to the public to train, supervise, and control its notary-employees to assure they were authenticating only signatures executed by properly identified persons.
Vancura sued Kinko’s, among other defendants, to recover damages he suffered as a result of a forged mortgage assignment which was notarized by Gustavo Albear (“Albear”), a Kinko’s employee. On December 20, 1995, two men entered into a Kinko’s store with a mortgage assignment which assigned Vancura’s $100,000 interest in the subject mortgage to themselves. It was undisputed that the mortgage assignment bore the notary stamp of Albear. Albear testified that the signature on the notary line of the mortgage assignment was not his, but he also testified that he did not store his notary seal in a secure location.
The court ruled there was sufficient evidence to find Kinko’s liable for negligence in its training and supervision of Albear as a notary. According to the court, the evidence showed that Kinko’s was willfully and consistently ignorant of whether Albear understood what he was supposed to do. The court concluded that a reasonably careful employer would have confirmed that notary training conveyed what a notary needed to know before allowing an employee to begin validating legal documents such as the mortgage assignment at issue in that case. In an interesting twist, however, the court refused to find Kinko’s liable under the Illinois Notary Act because there was insufficient evidence that Kinko’s consented to Albear’s misconduct. This result, no doubt, was little consolation to Kinko’s because it remained liable to Vancura due to the court’s finding of negligent supervision and training.
An Illinois employer has a duty to its employees and third parties to hire, retain, supervise, train and entrust employees such that the employees do not cause harm to others. An employer of notaries public is thus advised to closely monitor the training and supervision of its notary-employees. If you have any questions about the Illinois Notary Public Act or the obligation of Illinois employees for supervision, please contact a member of the firm.