Many loan servicers face the daunting task of issuing affidavits for their litigation cases across the United States. For the sake of efficiency, a loan servicer may wonder whether it would be worth it to streamline the affidavit process by using uniform acknowledgment language. However, research suggests that any alteration of an affidavit that replaces the traditional oath or “sworn to statement” with acknowledgment-like language is contrary to both New York statutory and case law and would likely result in rejection by New York State courts.

The Law

The statutory authority in New York relating to affidavits and acknowledgments resides in multiple sections of New York state law (statutes). Laws related to affidavits, acknowledgments and notary authority are found in various titles and sections of New York State Executive Law, Real Property Law, and Civil Practice Law, among others. Within the statutes, any reference to an “officer authorized by law to take the acknowledgment of deeds in this state” will denote a notary, which is defined in Real Property Law §§ 298, 299, and 313.

Affirmations and oaths are defined under CPLR § 2309, with in-state affirmations and oaths required to be “administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs.” CPLR § 2309(b). Out-of-state affirmations and oaths are valid within New York State when accompanied by a certificate of acknowledgment.

An Oath Is Required

Affidavits are signed statements, duly sworn to, by the makers thereof, before a notary public or other officer authorized to administer oaths. See N.Y. Dep’t of State, Division of Licensing Services, Notary Public License Law 14 (June 2016), www.dos.ny.gov/licensing/lawbooks/ NOTARY.pdf [hereinafter Notary Public License Law]. Pursuant to General Construction Law § 36, the terms “oath” and “swear” are synonymous, and the term “swear” includes all modes of administering an oath. Additionally, General Construction Law § 12 defines an affidavit as requiring an affiant to attest to the truth of his or her statement by swearing before a notary (or other officer authorized by law to take the acknowledgment of deeds in this state). Taken together, New York statutes require that a valid affidavit include an oath by the affiant, which the New York Court of Appeals has defined as being “in some form, in the presence of an officer authorized to administer it, an unequivocal and present act, by which the affiant consciously takes upon himself the obligation of an oath.” O’Reilly v. People, 86 N.Y. 154, 161-62 (1881) (the court describing a valid oath in the context of perjury); People v. Levitas, 40 Misc. 2d 331, 333 (N.Y. Sup. Ct. 1963) (citing O’Reilly, 86 N.Y. at 161-62); see also Notary Public License Law, supra, at 14 (noting that it “is of far more importance that the affiant, the person making the affidavit, should have personally appeared before the notary and have made oath to the statements contained in the affidavit as required by law.”). Accordingly, an oath is required within an affidavit, made in the presence of a notary, in which the affiant unequivocally attests to the truth of his or her statement.

An Acknowledgment Is Insufficient

An acknowledgment merely certifies as to the identity and execution of a document. Unlike the affidavit, the acknowledgment does not require the signer to attest to the truth of the contents within the subject document, it only requires knowledge relating to the identity of the signer and executor. See N.Y. Real Prop. Law § 303 (defining an acknowledgment as requiring a notary to simply know or have “satisfactory evidence, that the person making [the statement] is the person described in and who executed such instrument”). Thus, the two are clearly not interchangeable. Garguilio v. Garguilio, 122 A.D.2d 105 (N.Y. App. Div. 2d Dep’t 1986).

In contrast to the requirement that an affiant make an “unequivocal and present act” and “consciously take[] upon himself the obligation of an oath,” an acknowledgment does not require an oath or any type of attestation to the truth of the contents within the subject document. O’Reilly, 86 N.Y. at 161-62. Although the person who executed the instrument must personally appear before the notary, he is not required to sign his name in the notary’s presence. The notary only needs to know or have proof that the person making the acknowledgment is the person described in and who executed the instrument. People ex rel. Sayville Co. v. Kempner, 49 A.D. 121 (N.Y. App. Div. 1st Dep’t 1900).

Notably, there are certain acknowledgment forms that are considered a combination of an acknowledgment and affidavit. Thus, a notary must “scrutinize each document presented” to ascertain his duties. Notary Public License Law, supra, at 14.

Conclusion

Based upon the distinctions between an acknowledgment and an affidavit, the two should not be used interchangeably by loan servicers, either by modification or merger. By definition, they are not transposable; one addresses the verification of a document’s contents while the other speaks to the identity of the party executing the document. Alteration of an affidavit’s standard language would change its character, particularly if such alteration relied on language associated with an acknowledgment. If so moved, a court could choose to reject the document, relying on the above rationale.