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MT Administrative Rules (2015)

Rule/Regulation

State: Montana

Effective: October 30, 2015

Summary

In light of Montana’s enactment of the Revised Uniform Law on Notarial Acts (RULONA), the Montana Secretary of State has adopted new rules, and repealed and amended existing rules.

Affects

Adds new rules 44-15-106, 44-15-107, 44-15-108 and 44-15-109 to, and amends rule 44-15-101 and repeals 44-15-104 of the Montana Administrative Code Title 44, Chapter 15.

Changes

Notary Commission

  1. Repeals to prior rule related to cancelation of a Notary commission.
  2. Clarifies that an applicant must provide the applicant’s physical/residential address on an application for a commission.
  3. No longer requires an applicant for a Notary commission to provide the applicant’s employer’s email address.
  4. Requires an applicant for a commission to inform the Secretary whether the applicant intends to provide electronic notarization services, and if so, to identify the tamper-proof technology the applicant intends to use.
  5. Clarifies that an applicant for a commission must be a citizen or permanent legal resident of the United States.
  6. Clarifies that an applicant for a commission must be a resident of Montana or have employment or practice in Montana.
  7. Requires an applicant for a commission to be able to read and write English.
  8. States that an applicant must indicate on the commission application if the applicant has been convicted of a crime involving fraud, dishonesty or deceit within the past 10 years.
  9. Clarifies that an applicant must indicate on the commission application if the applicant has been convicted of a felony within the past 10 years.
  10. Requires an applicant must indicate on the commission application if the applicant has been found in any legal proceeding or disciplinary action within the past 10 years to have acted fraudulently, dishonestly or deceitfully.
  11. No longer requires an applicant must indicate on the commission application if the applicant has had a bond denied, revoked, or restricted in any state.
  12. Requires an applicant who is not currently commissioned to submit with the application a certificate proving the applicant has passed a Notary examination approved by the Secretary of State.
  13. Makes non-substantive changes.

Status Changes

  1. Requires a Notary to notify the Secretary of State within 30 calendar days of any change in information on file with the Secretary, including the Notary’s: (a) name; (b) physical/residential address; (c) mailing address; (d) personal email address; (e) personal telephone number; employer’s name, address, or telephone number; and use of electronic notarization technology.
  2. Clarifies that when a Notary changes the Notary’s name on file with the Secretary of State, the Notary must file with the Secretary: (a) a rider or other document issued by the Notary’s surety company showing the change of name; and (b) an example of the Notary’s new official signature using the form prescribed by the Secretary.
  3. Requires a Notary to notify the Secretary of State within 14 calendar days of: (a) being convicted of a felony or crime involving fraud, dishonesty, or deceit; (b) being found in any legal proceeding or disciplinary action to have acted fraudulently, dishonestly, or deceitfully; or (c) having a notary commission denied, revoked, or restricted in a state other than Montana.

Official Stamp

  1. Requires an official stamp to be affixed on a tangible (paper) or electronic record that conforms to the requirement of the rule.
  2. Provides a sample of an official stamp. Note: the specifications prescribed for the Notary’s official stamp do not change from what is now currently required.

Standards for Remote Notarial Acts

  1. Provides that remote notarizations must only be performed using technology that allows the individuals communicating to simultaneously see and speak to one another.
  2. Provides that when performing remote notarizations, the signal transmission shall be live, real time.
  3. Requires all remote notarizations to be recorded electronically.
  4. Requires a Notary, prior to performing any remote notarization, to inform all individuals participating in the notarization that the notarization will be electronically recorded.
  5. Requires a Notary to recite the following information on all recordings of remote notarizations: (a) the Notary’s name; (b) the Notary’s commission expiration date; (c) a declaration that all individuals participating in the remote notarization have been informed by the Notary that the notarization will be electronically recorded; (d) the date and time the notarial act is being performed; (e) the state and county in which the Notary is located when the notarial act is being performed; (f) the type of notarial act that is being performed; (g) the type or title of record that is being notarized; (h) whether the notarial act is being performed on a tangible or electronic record; (i) whether the individual for whom the notarial act is being performed is being identified by personal knowledge or credible witness; and (j) if a record is being executed, an acknowledgement that the person for whom the notarial act is being performed has the competency or capacity to execute the record.
  6. Requires the individual for whom the notarial act is being performed to recite the following information on all recordings of remote notarizations: (a) the individual’s name; (b) the state in which the individual legally resides; (c) a declaration that the signature made on the record being notarized is that of the individual; (d) the date the individual signed the record being notarized; and (e) a declaration that the signature made on the record being notarized was made by the individual knowingly or voluntarily.
  7. Provides that if the individual for whom the notarial act is being performed remotely is being identified by personal knowledge, the recording of the remote notarization shall include an explanation by the Notary as to how the Notary has come to know the individual for whom the notarial act is being performed and the length of time the Notary has known the individual.
  8. Provides that if the individual for whom the notarial act is being performed is being identified by credible witness: (a) the credible witness shall be in the physical presence of the Notary; and (b) the recording of the remote notarization shall include: (i) a statement by the Notary as to whether the Notary identified the credible witness by personal knowledge or satisfactory evidence; and (ii) an explanation by the credible witness as to how the credible witness has come to know the individual for whom the notarial act is being performed and the length of time the credible witness has known the individual.

Travel Fee

  1. Permits a Notary to charge a travel fee for a notarial act in accordance with Section 1-5-626, MCA.
Analysis

Exercising the rulemaking authority granted under enactment of the Revised Uniform Law on Notarial Acts, the Montana Secretary of State has promulgated new Notary rules, and amended and repealed one existing rule each. The amended rule relates to information required to be disclosed on an application for a Notary commission. The repealed rule strikes the provisions related to canceling a Notary commission.  However, it is four new rules that is the story here. Rule 44-15-106 relates to a Notary’s responsibility to keep current information on file with the Secretary of State. Rule 44-15-107 relates to the Notary’s official stamp, but the specifications for the official stamp are the same as the have been for the past few years. The only material change is a clarification that when notarizing an electronic record a Notary must include the official stamp, meaning the full graphical image in blue or black ink. Rule 44-15-108 provides rules for “remote” audio-video notarizations. It is important to clarify that under Montana’s new statutes and rule, both a paper-based and electronic notarial act may be performed in real time using audio-video technology, and not just electronic acts. For example, a paper car title may be signed by a principal signer and physically mailed to a Notary. Then the Notary and principal signer may appear before each other using audio-video technology and the Notary can notarize the paper car title. The new rule contains requirements for recitations by the Notary and signer who appear before each other remotely. These recitations are important for the recording of the session that is required. The final rule, 44-15-109 is a permission for a Notary to charge a travel fee as provided in Section 1-5-626, MCA.

Read the new and amended rules (download PDF below).

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