CA Assembly Bill 75 | NNA
Law

CA Assembly Bill 75

Notary Law Update: CA Assembly Bill 75

State: California

Summary:

Assembly Bill 75 prohibits the performance of proofs of execution on a power of attorney or any other document for which a journal thumbprint is required. It also updates the statutory proof of execution certificate. It limits the performance of protests to those Notaries employed by a financial institution and who perform protests during the course of their employment and removes the statutory fees for performing a protest.

Signed:  September 07, 2011

Effective:  January 01, 2012

Chapter: 269

Affects:

Amends Government Code Sections 8205, 8208, 8211 and 27287, Civil Code Section 1195, and Commercial Code Section 3505; and creates Government Code Section 12181.

Changes:
  1. Prohibits a proof of execution on a power of attorney or any document for which a journal thumbprint is required.
  2. Modifies the statutory proof of execution certificate.
  3. Clarifies that in order to be recorded by a county recorder a power of attorney may not be proved by a subscribing witness but must be acknowledged before a Notary Public.
  4. Prohibits protests to be performed by any Notary unless the Notary is employed by a financial institution and the protest is performed during the course of employment.
  5. Removes the fees for a protest.
  6. Authorizes the Secretary of State’s office to “refuse to perform a service or refuse a filing based on a reasonable belief that the service or filing is being requested for an unlawful, false, or fraudulent purpose, to promote or conduct an illegitimate object or purpose, or is being requested or submitted in bad faith or for the purpose of harassing or defrauding a person or entity.”
Analysis:

Assembly Bill 75 is in part “clean up” legislation from the major overhaul of California’s Notary statutes in 2007 and in part new legislation aimed at curbing specific abuses and frauds. The bill prohibits a Notary from performing a proof of execution by subscribing witness on a power of attorney document. This is an excellent amendment that will protect the elderly in particular. The bill also wisely “future proofs” the statue by including a provision that a proof of execution may not be performed on any document for which a journal thumbprint is required. Should the legislature in the future add to the list of documents requiring a journal thumbprint, the new provision in Civil Code Section 1195 immediately would disallow the document from being proved by a subscribing witness. AB 75 also amends the statutory proof of execution by subscribing witness certificate, making some overdue changes. It updates the certificate wording to correctly state that the Notary identified the subscribing witness through the method of identification brought into the law way back in 2007. It also adds a brief phrase stating that the subscribing witness witnessed the principal sign or acknowledge the signature. With AB 75, California joins the states of Utah, Oregon and Nevada in cracking down on the performance of bogus protests by Notaries serving so-called sovereign citizens. Now, only those California Notaries employed by a financial institution and who protest instruments during the course of their employment may legitimately perform a protest. After January 1, 2012, any Notary who performs a protest in violation of the new law will be subject to administrative action by the Secretary of State. In updating the statute on this point, AB 75 also repeals the fees a Notary may charge for performing a protest. Presumably now a Notary protesting an instrument may charge anything he or she wants, but it is more likely that no fee will be charged for the service because banks and financial institutions protest commercial paper as a matter of normal business. AB 75 also allows the Secretary of State to refuse to issue an Apostille or certification based on a reasonable belief that the service or filing is being requested for any of a number of specified improper purposes. These improper purposes have mainly to do with the sovereign citizens, who protest mortgages, tax statements and other legitimate debt obligations in an effort to defraud lenders and taxing authorities.

Read the bill text.

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