IA Senate File 2265 | NNA

IA Senate File 2265

Notary Law Update: IA Senate File 2265

State: Iowa

Summary:

With Senate File 2265, Iowa becomes the second state to enact the Revised Uniform Law on Notarial Acts (RULONA). SF 2265 contains most of the “stock” RULONA provisions, including new identification standards, prohibited acts, and electronic notarization rules. The RULONA does not contain the bracketed (optional) Notary bond, journal and education provisions that were in the final form of the RULONA adopted by the Uniform Law Commission. The bill takes effect on January 1, 2013.

Signed:  April 04, 2012

Effective:  January 01, 2013

Chapter: 105

Affects:

Creates new Chapter 9B and repeals Chapter 9E of the Iowa Code

Changes:
Definitions
  1. Adds new definitions for the following terms used in the Act: “Electronic,” “Electronic signature,” “Notary public,” “Official stamp,” “Person,” “Record,” “Sign,” “Signature,” “Stamping device,” “State” and “Foreign state”.
  2. Amends the definitions of “Acknowledgment” and “Verification on oath or affirmation” to emphasize that these notarial acts must be performed “before a notarial officer.”
  3. Adopts the Uniform Electronic Transactions Act (UETA) definitions of “Electronic,” “Electronic Signature” and “Record.”
  4. Adopts the Uniform Commercial Code Section 2 definition of “Sign.”
  5. Clarifies that a “Notarial officer” means a Notary Public or other individual authorized to perform a notarial act while a “Notary public” means an individual commissioned to perform a notarial act by the Secretary of State.
  6. Clarifies that “Official stamp” means the physical image affixed to or embossed on a tangible record or an electronic image attached to or logically associated with an electronic record, and that “Stamping device” means the tool which creates the physical or electronic image.
  7. Uses the term “Record” to refer to either information that is inscribed on a tangible medium (e.g., a paper document) or that is stored in an electronic or other medium and is retrievable in perceivable form.
Qualifications; Commissioning; Electronic Notarization Registration
  1. Prescribes that a Notary commission applicant must: (a) be at least 18 years of age; (b) be a citizen or legal resident of the U.S.; (c) be a resident of or have a place of employment or practice in the state of commissioning; (d) be able to read and write English; and (e) not be disqualified to receive a commission by any of the grounds authorizing the Secretary of State to refuse to grant a commission.
  2. Requires an individual to execute an oath of office prior to being issued a commission.
  3. Clarifies that a Notary commission does not provide a Notary any immunities or benefits conferred by law on public officials or employees.
  4. Authorizes the Secretary of State to appoint members of the General Assembly and employees of a state agency as Notaries Public.
  5. Authorizes the Secretary of State to appoint as a Notary a resident of a state bordering Iowa if that person’s place of work or business is within the state of Iowa. If a Notary who is a resident of a state bordering Iowa ceases to work or maintain a place of business in Iowa, the Notary’s commission expires.
  6. Requires a Notary to notify the Secretary of State of the Notary’s capability and intent to perform electronic notarizations prior to performing electronic notarizations and state the technology or technologies the Notary will use to notarize electronic signatures.
Authority to Perform or Refuse to Perform Notarizations
  1. Prohibits a notarial officer from performing a notarial act if the officer or officer’s spouse is a party to or will receive a direct beneficial interest from the notarial act.
  2. Declares that a notarial act performed by a notarial officer for the officer’s spouse or in which the notarial officer or officer’s spouse has a direct beneficial interest is voidable.
  3. Permits a notarial officer to refuse to perform a notarial act if the officer is not satisfied that the principal signer is competent or has the capacity to execute the record; or that the individual’s signature is knowingly and voluntarily made.
  4. Authorizes a notarial officer to refuse to perform a notarial act unless refusal is prohibited by other law outside Chapter 9B.
  5. Prohibits a notarial officer from conditioning the performance of notarial services upon the requirement that the person be a customer or client.
  6. Prohibits the employer of a notary public from conditioning the performing of a notarial service upon the requirement that the person served be a customer or client of the establishment by which the notary public is employed.
  7. Provides that notarial acts may be performed by (a) Notaries Public, (b) a judge, clerk, or deputy clerk of a court, (c) a person authorized to administer oaths, and (d) a registrar of vital statistics or designee of a registrar.
Appearance and Identification of Signer; Signature of Person Unable to Sign
  1. Requires a signer of a record to personally appear before the notarial officer for an acknowledgment, verification on oath or affirmation and signature witnessing. The new law does not require an to appear before the notarial officer for copy certification.
  2. States that a notarial officer has personal knowledge of the identity of a signer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
  3. States that a notarial officer has satisfactory evidence of the identity of an individual if the individual: (a) presents a passport, driver’s license or government-issued non-driver  ID card that is valid or not expired by more than 3 years; (b) presents another form of government ID that contains the individual’s signature or photograph and is currently valid or not expired by more than 3 years; or (c) brings a credible witness personally known to the individual who presents a form of ID listed in subsection (a) above and who verifies under oath or affirmation that the witness knows the individual.
  4. Authorizes the notarial officer to require an individual to provide additional information or identification credentials to assure the officer that the individual has the identity claimed.
  5. Permits an individual who is physically unable to sign a record to direct an individual other than the notarial officer to sign the individual’s name on the record and requires the notarial officer to insert the following or substantially similar words, “Signature affixed by (insert name of other individual) at the direction of (insert name of individual)” near the signature. 
Official Stamp and Notarial Certificates
  1. Requires the Notary to affix or emboss the Notary’s official stamp on the notarial certificate of a tangible record.
  2. Requires that the Notary’s official stamp must be capable of being copied together with the record to which it is affixed or attached, or with which it is logically associated.
  3. Requires a notarial certificate to be signed by a Notary with the Notary’s signature in the same manner as on file with the Secretary of State.
  4. Prohibits a notarial officer from signing a notarial certificate on a tangible or electronic record until the notarial act has been performed.
  5. Prescribes the elements for the Notary’s official stamp: (a) the name of the Notary; (b) the words “Notarial Seal” and “Iowa”; (c) the Notary’s commission number and (e) the words “My commission expires” followed by either the Notary’s commission expiration date or a blank line. If a blank line is included in the seal, the Notary must print the Notary’s commission expiration date on the line.
  6. Exempts judicial officers defined by IC 602.1101  and a chief officer or designee of a chief officer certifying a peace officer’s verification of a uniform citation and complaint pursuant to IC 805.6(3) from having to use an official stamp when notarizing.
  7. Permits, but does not require, a notarial officer other than a Notary Public to affix or emboss an official stamp on the notarial certificate of a tangible record if the certificate contains the signature of the officer, date of notarization, jurisdiction where the notarial act was performed and the title of the notarial officer.
  8. Permits, but does not require, an official stamp to be attached to or logically associated with the notarial certificate on an electronic record if the certificate contains the signature of the Notary, date of notarization, jurisdiction where the notarial act was performed and the title of the notarial officer.
  9. Clarifies that a Notary is responsible for the security of the Notary’s stamping device and may not allow another person to use the device to perform a notarial act.
  10. Requires the Notary or the Notary’s personal representative to notify the Secretary of State if the Notary’s official stamping device is lost or stolen.
  11. Requires each notarial act performed to be evidenced by a certificate that: (a) is executed contemporaneously with the performance of the notarial act, (b) is signed by the notarial officer, (c) identifies the jurisdiction in which the notarial act is performed (d) contains the title of office of the notarial officer, and (e) if signed by a Notary, contains the Notary’s commission expiration date.
  12. Clarifies that the text of a notarial certificate is sufficient if: (a) it is in a short form contained in Chapter 9B.16; (b) it is in a form otherwise permitted by Iowa law; (c) it is in a form permitted by law applicable in the jurisdiction in which the notarial act is performed; or (e) it sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of Chapter 9B.5, 9B.6, and 9B.7 (stating the requirements for particular notarial acts and requiring the signer to be physically present and identified on the basis of personal knowledge or satisfactory evidence).
  13. Clarifies that in executing a notarial certificate, the officer certifies that he or she has complied with the requirements of Chapter 9B.4, 9B.5, and 9B.6 (affirming the Notary has authority to perform notarial acts, disallowing a disqualifying interest of the Notary or the Notary’s spouse, and requiring the signer to be physically present at the time of notarization).
  14. Prohibits a notarial officer from signing or logically associating the signature with a certificate until the notarial act has been performed.
  15. Requires that a certificate for a paper record must be part of, or securely attached to, the record.
  16. States that a notarial certificate must be affixed to, or logically associated with, an electronic record according to any standards established by the Secretary of State, if standards have been published.
  17. Updates the short-form acknowledgment and copy certification certificates by replacing the words “instrument” and “document” with “record” where applicable.
Notarization of Electronic Records
  1. Requires that any technology used by a Notary to perform a notarization on an electronic record must be tamper-evident.
  2. Permits a Notary to use one or more tamper-evident technologies to perform notarial acts on electronic records.
  3. Prohibits any person from requiring a Notary to perform a notarial act with respect to an electronic record with a technology the Notary has not selected.
  4. Clarifies that any technology the Notary intends to use to perform notarial acts on electronic records must comply with any standards established by the Secretary of State, if the Secretary of State has established standards.
  5. Requires a Notary to notify the Secretary of State that the Notary will be performing notarial acts with respect to electronic records and identify the technology the Notary intends to use prior to performing the Notary’s first notarial act on an electronic record.
  6. Requires the Secretary of State to maintain an electronic database of Notaries Public through which a person may verify the authority of a Notary to perform notarial acts and which indicates whether a Notary has notified the Secretary of State that the Notary will be performing notarial acts on electronic records.
Prohibited Acts; Grounds for Refusal, Denial, Renewal, Suspension, Revocation and Conditioning Commission of a Notary
  1. States that a commission to perform notarial acts does not allow an individual to perform or receive compensation for the following: (a) assisting persons in drafting legal records, giving legal advice or otherwise practicing law; (b) acting as an immigration consultant or expert; or (c) representing a person in a judicial or administrative proceeding relating to immigration to the U.S. or U.S. citizenship.
  2. Prohibits a Notary from engaging in false or deceptive advertising.
  3. Prohibits a Notary, other than an attorney licensed to practice law, from using the term “notario” or “notario publico.”
  4. Prohibits a Notary from withholding access to or possession of any original record provided by a person that requests performance of a notarial act.
  5. Prohibits a Notary, other than an attorney licensed to practice law, from representing or advertising that the Notary may assist persons in drafting legal records, give legal advice or otherwise practice law.
  6. Requires a Notary who is not an attorney and who in any manner advertises or represents that the Notary offers notarial services, whether orally or in a record, including broadcast or print media, and the Internet, to include the following statement or an alternative statement authorized by the Secretary of State in the advertisement or representation, prominently and in each language used in the advertisement or representation: “I am not an attorney license to practice law in this state. I am not allowed to draft legal records, give advice on legal matters, including immigration, nor charge a fee in regard to those activities.” If the form of advertisement or representation is not broadcast and print media, or the Internet, and does not permit the inclusion of the statement due to size, the statement must be prominently displayed or provided at the place of performance of the notarial act before the act is performed.
  7. Permits the Secretary of State to deny, or refuse to renew a commission of a Notary, or revoke, suspend or condition a Notary commission for any act or omission that demonstrates the individual lacks the honesty, competence or reliability to act as a Notary, including the following acts: (a) a failure to comply with any provision of Chapter 9B; (b) a fraudulent, dishonest or deceitful misstatement or omission in an application for a commission; (c) a conviction of any felony or a crime involving fraud, dishonesty or deceit; (d) a finding against, or admission of liability by, the applicant or Notary in any legal proceeding or a disciplinary action based on the applicant’s or Notary’s fraud, dishonesty or deceit; (e) a failure by a Notary to discharge any duty or responsibility required of a notarial officer, whether by Chapter 9B, rules of the Secretary of State or any state or federal law; (f) the use of false or misleading advertising or representations by the Notary that the Notary has duties, rights or privileges that a Notary does not possess; (g) a violation of a rule; and (h) a denial, refusal to renew, revocation, suspension or conditioning of a Notary commission in another state.
  8. Clarifies that if the Secretary of State denies, refuses to renew, revokes, suspends, or imposes conditions on a commission as a Notary, the applicant or Notary is entitled to timely notice and hearing in accordance with rules adopted by the Secretary.
  9. Clarifies that an administrative action taken against the commission of a Notary does not prevent an aggrieved person from seeking and obtaining other remedies provided by law, whether criminal or civil. 
Recognition of Authority to Perform Notarial Acts
  1. Recognizes the notarial acts performed by the following officers of another state as having the same effect under Iowa law as if performed by an Iowa notarial officer: (a) a Notary of that state; (b) a judge, clerk, or deputy clerk of a court of that state and (c) any other individual authorized by the law of that state to perform the notarial act. The signature and title of an individual performing a notarial act in another state are prima facie evidence that the signature is genuine and that the individual holds the designated title. The signature and title of a notarial officer described in sections (a) and (b) conclusively establish the authority of the notarial officer to perform the notarial act. Note: The notarial act performed in another state must be performed in accordance with section 9B.6 (the signer must be physically present before the Notary).
  2. Recognizes the notarial acts performed by the following officers of a federally-recognized American Indian tribe as having the same effect under Iowa law as if performed by an Iowa notarial officer: (a) a Notary of that tribe; (b) a judge, clerk, or deputy clerk of a court of that tribe and (c) any other individual authorized by the law of the tribe to perform the notarial act. The signature and title of a notarial officer described in sections (a) and (b) conclusively establish the authority of the notarial officer to perform the notarial act.
  3. Recognizes the notarial acts performed by the following officers under federal law as having the same effect under Iowa law as if performed by an Iowa notarial officer: (a) a judge, clerk, or deputy clerk of a court; (b) an individual in military service or performing duties under the authority of military service who is authorized to perform notarial acts under federal law; (c) an individual designated a notarial officer by the United States department of state for performing notarial acts overseas; and (d) any other individual authorized by federal law to perform the notarial act. The signature and title of an individual acting under federal authority and performing a notarial act are prima facie evidence that the signature is genuine and that the individual holds the designated title. The signature and title of a notarial officer described in sections (a) and (b) and (c) conclusively establish the authority of the notarial officer to perform the notarial act.
  4. Provides that if a notarial act is performed under authority and in the jurisdiction of a foreign state or constituent unit of the foreign state or is performed under the authority of a multinational or international governmental organization, a notarial act has the same effect under Iowa law as if performed by a notarial officer of Iowa.
  5. Provides if the title of office and indication of authority to perform notarial acts in a foreign state appears in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established.
  6. Provides that the signature and official stamp of an individual holding an office described are prima facie evidence that the signature is genuine and the individual holds the designated title.
Administrative Rules
  1. Permits the Secretary of State to adopt rules to implement Chapter 9B.
  2. Clarifies that any rules adopted by the Secretary with respect to performing notarial acts on electronic records shall not require or favor one technology or technical specification over another.
Miscellaneous
  1. Clarifies that the failure of a notarial officer to perform the duties or meet the requirements specified in Chapter 9B does not invalidate a notarial act performed by the officer, that the validity of a notarial act under Chapter 9B does not prevent an aggrieved person form seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based upon other law; and that Chapter 9B does not validate a purported notarial act performed by an individual who does not have the authority to perform the act.
  2. Clarifies that in applying and construing the Chapter 9B, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.
  3. Clarifies that the Chapter 9B modifies, limits and supersedes the federal E-SIGN Act, but does not modify, limit or supersede Section 101(c) of E-SIGN or authorize electronic delivery of any of the notices described in Section 103(b) of E-SIGN.
  4. Repeals the prior Uniform Law on Notarial Acts (Chapter 9E). Notable provisions repealed in this chapter include the allowance for the Notary’s seal to be affixed by an adhesive label.
  5. Requires the Secretary of State to notify a Notary of the Notary’s commission expiration date two months prior to expiration and provide a blank application for reappointment.
  6. Clarifies that a Notary who applies to renew a commission on or after January 1, 2013, is subject to and must comply with Chapter 9B, and a Notary who performs notarial acts after January 1, 2013, must comply with Chapter 9B.
  7. Requires the Secretary of State to collect the following fees: (a) for furnishing a certified copy of any document, instrument, or paper relating to a Notary, $1 per page and $5 for the certificate; (b) for furnishing an uncertified copy of any document, instrument, or paper relating to a Notary, $1per page; and (c) for certifying, under seal of the Secretary, a statement as to the status of a Notary commission which would not appear from a certified copy of documents on file in the Secretary’s office, $5.
  8. Makes other coordinating amendments to the Iowa Code referencing Chapter 9B.
Analysis:

The state of Iowa becomes the second state to enact the Revised Uniform Law on Notarial Acts (RULONA).

Senate File 2265 creates a new Chapter 9B in the Iowa Code and repeals the previous Chapter 9E. Chapter 9E included the predecessor act to the RULONA, the Uniform Law on Notarial Acts. SF 2265 contains many of the “stock” RULONA provisions including prohibited acts, grounds for administrative actions taken by the Secretary of State against the commission of a Notary, new standards for identifying document signers, and an all-important rule that all document signers must personally appear before the notarial officer for a paper-based and electronic notarial act. Interestingly, in recognizing the notarial acts of notarial officers in other U.S. states, the new law specifically states that the notarial act performed in another state must be performed with the signer must be physically present before the Notary. This means that any electronic notarizations performed under Virginia law utilizing video and audio technology will be rejected in the state of Iowa, because Iowa does not define personal appearance to include appearance by alternative technologies.

SF 2265 also includes the stock RULONA provisions allowing a Notary to refuse to perform a notarial act if the Notary is not satisfied that the signer is competent to sign or has not signed the document voluntarily and requiring a Notary to complete a notarial certificate contemporaneously with the performance of the notarial act and sign a certificate only after the notarial act has been completed. The bill also contains the RULONA prohibition against a Notary engaging in the unauthorized practice of law, the disqualification from notarizing when the Notary or the Notary’s spouse is a party to the document, and allowance for a document signer with a physical limitation to direct someone other than the Notary to sign the document for the disabled signer.

With respect to electronic notarizations, a Notary may use any technology to perform an electronic notarial act as long as it is “tamper-evident,” that is, the technology must be able to visibly show if a record has been changed after the Notary’s signature has been affixed to the electronic record.

Read the bill text. 

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