CO Senate Bill 132 | NNA
Law

CO Senate Bill 132

Notary Law Update: CO Senate Bill 132

State: Colorado

Summary:

Colorado enacts the Revised Uniform Law on Notarial Acts (RULONA), effective on July 1, 2018 (see CO Senate Bill 294, which extends the effective date).

Signed:  May 18, 2017

Effective:  July 01, 2018

Chapter: TBD

Affects:

Adds Part 5 to Article 21 of Title 24 and repeals Parts 1 and 2 of Article 55 of Title 12 of the Colorado Revised Statutes

Changes:

Definitions

  1. Adds new definitions for the following terms used in the Act: “acknowledgment,” “electronic,” “electronic signature,” “electronic records Notary public,” “in a representative capacity,” “notarial act,” “Notary public,” “notarial officer,” “official stamp,” “person,” “record,” “sign,” “signature,” “stamping device,” “state” and “foreign state” (see Section 14) and “verification on oath or affirmation.”
  2. 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.
  3. 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.
  4. 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 and Commissioning

  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 Colorado; (d) be able to read and write English; (e) not be disqualified to receive a commission by any of the grounds under CRS 24-21-523; and (f) have passed the examination required under CRS 24-21-522(1).
  2. Requires an individual to execute an oath of office prior to being issued a commission by the Secretary of State.
  3. Provides that the Secretary of State shall verify the lawful presence in the United States of every applicant through the verification process under CRS 24-76.5-103(4).
  4. Clarifies that a Notary commission does not provide a Notary any immunities or benefits conferred by law on public officials or employees.
  5. Provides that an applicant for a Notary commission who does not hold a commission must pass an examination administered by the Secretary of State or an entity approved by the Secretary.
  6. Requires the examination to be based upon a course of study provided by the Secretary of State or an entity approved by the Secretary of State, and the course must cover the laws, rules, procedures, and ethics relevant to notarial acts.
  7. Authorizes the Secretary of State to enter into a contract with a private contractor or contractors to conduct Notary Public training programs, and allows the contractor or contractors to charge a fee for the training program.

Authority to Perform or Refuse to Perform Notarizations

  1. Allows Notaries to witness or attest signatures.
  2. No longer requires Notaries who certify a copy to obtain and retain the signed, written request required under current CRS 12-55-120.
  3. Prohibits a Notary from certifying a copy of a record that may be obtained from (a) a clerk and recorder of public documents; (b) the Secretary of State; (c) the state archives; or (d) an office of vital records.
  4. Prohibits a Notary from certifying a copy of a record if the record states on its face that it is illegal to copy the record.
  5. 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.
  6. Permits a notarial officer to refuse to perform a notarial act unless the refusal is prohibited by law other than the new chapter.

Appearance and Identification of Signer; Signature of Person Unable to Sign

  1. Requires a signer of a record, including an electronic record, to personally appear before the notarial officer at the time of notarization for an acknowledgment or verification on oath or affirmation. Note: the new law does not require an individual requesting a copy certification to appear before the notarial officer.
  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 1 year; (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 1 year and that is satisfactory to the notarial officer; 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. Permits a 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).”
  6. Repeals the current signature by mark procedure. (Note: Under the RULONA, a signature includes a mark or symbol, so a signature by mark procedure is not necessary.)

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 Colorado law as if performed by an Colorado 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; and further provides that 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, and 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.
  2. Recognizes the notarial acts performed by the following officers of a federally-recognized American Indian tribe as having the same effect under Colorado law as if performed by an Colorado notarial officer: (a) a Notary of that tribe; and (b) any other individual authorized by the law of the tribe to perform the notarial act; and further provides that the signature and title of an individual performing a notarial act under the authority of and in the jurisdiction of a federally recognized Indian tribe are prima facie evidence that the signature is genuine and the individual holds the designated title, and 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 Colorado law as if performed by an Colorado 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; and further provides that 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, and 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 the 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 Colorado law as if performed by a Notary of Colorado.
  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.
  7. Provides that an apostille in the form prescribed by the Hague Convention of October 5, 1961, and issued by a foreign state party to the Convention conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.
  8. Provides that a consular authentication issued by an individual designated by the United States Department of State as a notarizing officer for performing notarial acts overseas and attached to the record with respect to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

Notarial Certificates and Official Stamp

  1. Requires a notarial act to be evidenced by a certificate of the notarial act.
  2. Requires a notarial certificate to be executed contemporaneously with the performance of the notarial act.
  3. Requires a notarial certificate to include (a) the jurisdiction in which the notarial act is performed; (b) the title of the notarial officer; and (c) the date of expiration of the Notary’s commission.
  4. Requires a notarial certificate to be in English or in dual languages, one of which must be English.
  5. Requires a notarial certificate to be dated and signed by a Notary with the Notary’s signature in the same manner as on file with the Secretary of State.
  6. Requires a Notary to affix or emboss the Notary’s official stamp on the notarial certificate of a tangible record.
  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. Requires a Notary to attach or logically associate an official stamp on a notarial certificate on an electronic record.
  9. Permits, but does not require, a notarial officer to attach or logically associate an official stamp on the notarial certificate of an electronic record if the certificate contains the signature of the notarial officer, date of notarization, jurisdiction where the notarial act was performed and the title of the notarial officer.
  10. Clarifies that the text of a notarial certificate is sufficient if it meets the requirements of Sections 24-21-505, 24-21-506 and 24-21-507 (requiring the signer to be physically present and identified on the basis of personal knowledge or satisfactory evidence) and further provides that by signing a notarial certificate, a notarial officer certifies he or she has complied with these sections.
  11. Prohibits a notarial officer from signing a notarial certificate on a tangible or electronic record until the notarial act has been performed.
  12. Requires a notarial certificate to be affixed to, or logically associated with, the electronic record according to any standards established by the Secretary of State if standards have been published.
  13. Prescribes short form certificates for all authorized notarial acts, including the new notarial act of signature witnessing.
  14. Prescribes the elements for the Notary’s official stamp. (Note: the informational elements remain the same as current law.)
  15. Requires the official stamp must be capable of being copied together with the record to which it is affixed or attach or with which it is logically associated (that is, on an electronic record).
  16. 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.
  17. Requires the Notary to disable the stamping device by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable upon resignation or expiration of the Notary’s commission or upon expiration of the date set forth in the stamping device.
  18. Requires the Notary’s personal representative or any other person knowingly in possession of the stamping device to disable the stamping device by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable upon the death or adjudication of incompetency of a Notary or former Notary.
  19. Requires a Notary or Notary’s personal representative to notify promptly the Secretary of State within 30 days if the Notary’s stamping device is lost or stolen.

Journal

  1. Requires a Notary to keep a journal of notarial acts for all notarial acts the Notary performs.
  2. Retains the provision in current law allowing a Notary in lieu of keeping a journal to keep the original or a copy of the record that is the subject of the notarial act if the record contains all of the information required to be kept in a journal entry and if the firm or employer retains the original or a copy of the record in the regular course of business.
  3. Permits the journal maintained by a Notary to be kept on a tangible medium or electronic format.
  4. Requires a journal kept on a tangible medium to be a permanent, bound register with numbered pages and a journal kept in electronic format to be in a permanent, tamper-evident electronic format complying with the rules of the Secretary of State.
  5. Requires a Notary to record a journal entry contemporaneously with the performance of the notarial act.
  6. Prescribes the following entries for each journal record: (a) the date and time of the notarial act; (b) a description of the record, if any; (c) the type of notarial act; (d) the full name and address of each individual for whom a notarial act is performed; and (e) the signature or electronic signature of each individual for whom the notarial act is performed; (f) a brief description of the method of identification and the type of credential presented, if any, used to identify the individual; and (g) the fee for the notarial act, if any.
  7. Requires a Notary to keep the journal in a locked and secured area, under the direct and exclusive control of the Notary and not allow any other Notary to use the journal.
  8. Provides that upon written request of any member of the public, which must include the name of the parties, the type of document, and the month and year in which a record was notarized, a Notary may certify a copy of the line item of the journal, and allows a Notary to charge the fee allowed in Section 24-21-529 for each certified copy.
  9. Requires a Notary to record each copy certification of a journal entry in the Notary's journal.
  10. Allows the Secretary of State to audit or inspect a Notary’s journal without restriction, and requires the Notary to surrender the journal to the Secretary upon receiving a written request from the Secretary.
  11. Allows a peace officer as defined in CRS 16-2.5-102 acting in the course of an official investigation to inspect a Notary’s journal without restriction.
  12. Requires a Notary to notify the Secretary of State within 30 days if the Notary’s journal is lost or stolen.
  13. Requires a Notary to store all journals for 10 years after the performance of the last notarial act chronicled in the journal.
  14. Requires a Notary to inform the Secretary of State where the Notary’s journal(s) are located on resignation from, or revocation or suspension of, the Notary’s commission.
  15. Provides that instead of retaining a journal for 10 years, a current or former Notary may (a) transmit the journal to the state archives as provided in statute; or (b) leave the journal with the Notary’s firm or employer.
  16. A Notary shall notify the Secretary of State if the Notary transmits the journal to the state archives or leaves it with an employer, and provide the contact information of the employer.
  17. Provides that on the death or adjudication of incompetency of a current or former Notary, the Notary’s personal representative or guardian, or any other person knowingly in possession of the journal shall transmit the journal to the state archives, and shall notify the Secretary of State in writing when they have done so.

Notarization of Electronic Records

  1. Requires that any technology used by a Notary Public to perform a notarization on an electronic record must be tamper-evident.
  2. Permits a Notary Public to use one or more tamper-evident technologies to perform notarial acts on electronic records.
  3. Prohibits any person from requiring a Notary Public to perform a notarial act with respect to an electronic record with a technology the Notary has not selected.
  4. 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.
  5. Clarifies that any technology the Notary Public 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.
  6. 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.
  7. Clarifies that if the Secretary of State has established standards for approval of technology, the technology must conform to the standards; and further clarifies that the Secretary shall approve the technology if it complies with the standards.
  8. Requires the electronic signature of a Notary must contain or be accompanied by the following elements, all of which must be immediately perceptible and reproducible in the electronic record to which the Notary's electronic signature is attached: (a) the Notary's name, as it appears on the Notary's certificate of commission; (b) the Notary's identification number; (c) the words "Notary Public" and "State of Colorado"; (d) a document authentication number issued by the Secretary of State; and (e) the words "my commission expires" followed by the expiration date of the Notary's commission.
  9. Clarifies that a Notary's electronic signature must conform to any standards promulgated by the Secretary of State.
  10. 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; Advertising Requirements; Grounds for Administrative Action Against the Commission of a Notary

  1. Prohibits a notarial officer from performing a notarial act if the officer or officer’s spouse partner in a civil union, ancestor, descendant or sibling is a party to or named in the record that is to be notarized.
  2. Prohibits a notarial officer from performing a notarial act if the officer or officer’s spouse or partner in a civil union may receive directly, and as a proximate result of the notarization, any advantage, right, title, interest, cash or property exceeding in value the sum of any fee properly received for the notarial act.
  3. Declares that a notarial act performed by a notarial officer under #1 and #2 above is voidable.
  4. States that a commission to perform notarial acts does not allow an individual to (a) assist persons in drafting legal records, give legal advice or otherwise practice law; (b) act as an immigration consultant or expert; (c) represent a person in a judicial or administrative proceeding relating to immigration to the U.S. or U.S. citizenship; or (d) receive compensation for performing the activities in (a) through (c).
  5. Prohibits a Notary from engaging in false or deceptive advertising.
  6. Prohibits a Notary, other than an attorney licensed to practice law, to use the term “notario” or “notario publico.”
  7. Prohibits a Notary from withholding access to or possession of any original record provided by a person that requests performance of a notarial act, except as otherwise allowed by law. 
  8. Prohibits a Notary from performing a notarial act with respect to a record that is blank or that contains unfilled blanks in its text.
  9. Prohibits a Notary, other than an attorney licensed to practice law in Colorado, from advertising or representing that the Notary may assist persons in drafting legal records, give legal advice, or otherwise practice law.
  10. 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 licensed to practice law in the state of Colorado and I may not give legal advice or accept fees for legal advice. I am not an immigration consultant, nor am I am expert on immigration matters. If you suspect fraud, you may contact the Colorado Attorney General’s office or the Colorado Supreme Court.” 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.
  11. Prohibits a Notary from engaging in conduct that constitutes a deceptive trade practice pursuant to CRS 6-1-727.
  12. Permits the Secretary of State to take action against the commission of a Notary for (a) failure to comply with the new chapter; (b) a substantial and material misstatement or omission of fact in the application for a commission as a Notary;(c) notwithstanding section 24-5-101, a conviction of the applicant or Notary of any felony or, in the prior five years, a misdemeanor involving dishonesty; (d) a finding against, or admission of liability by, the applicant or Notary in any legal proceeding or disciplinary action based on the applicant's or Notary's fraud, dishonesty or deceit; (e) failure by the Notary to discharge any duty required of a Notary, whether by the new chapter, rules of the Secretary of state or any federal or state law; (f) use of false or misleading advertising or representation by the Notary representing that the Notary has a duty, right or privilege that the Notary does not have; (g) violation by the Notary of a rule of the Secretary of State regarding a Notary; (h) denial, refusal to renew, revocation, suspension or conditioning of a Notary commission in another state; (i) a finding by a court of Colorado that the applicant or Notary has engaged in the unauthorized practice of law; (j) failure to comply with any term of suspension or condition imposed on the commission of a Notary under CRS 23-21-523; or (k) performance of any notarial act while not currently commissioned by the Secretary of State.
  13. Authorizes the Secretary of State to investigate any violation of the new law or a signed complaint from any person.
  14. Provides that an applicant or a Notary is entitled to timely notice and hearing in accordance with the State Administrative Act if the Secretary of State denies, refuses to renew, revokes, suspends, imposes conditions on or otherwise sanctions a commission of an applicant or Notary.
  15. Authorizes the Secretary of State to take nondisciplinary action against a Notary if any investigation results in a finding of misconduct that, in the Secretary’s opinion, does not warrant initiation of a disciplinary proceeding.
  16. 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.
  17. Provides that a person whose Notary commission has been revoked pursuant to the new chapter may not apply for or receive a commission for appointment as a Notary.
  18. Provides that a Notary who knowingly and willfully violates the duties under the new chapter commits official misconduct and is guilty of a Class 2 misdemeanor.
  19. Provides that the Notary and the Notary’s surety or sureties on his or her bond are liable to all persons involved for all damages proximately caused by the Notary’s official misconduct, but clarifies that this provision does not deny a Notary the right to obtain a surety bond or insurance on a voluntary basis to provide coverage for liability.
  20. Provides that a person who acts as, or otherwise willfully impersonates, a Notary while not lawfully appointed and commissioned to perform notarial acts is guilty of a Class 2 misdemeanor and shall be punished as specified in CRS 18-1.3-501.
  21. Provides that a person who unlawfully possesses and uses a Notary's journal, an official seal, a Notary's electronic signature, or any papers, copies, or electronic records relating to notarial acts is guilty of a Class 2 misdemeanor and shall be punished as specified in CRS 18-1.3-501.

Administrative Rules

  1. Permits the Secretary of State to adopt rules to implement the Act and provides areas in which the Secretary may publish rules.
  2. Stipulates that in adopting, amending or repealing rules regarding notarial acts performed on electronic records, the Secretary shall consider, so far as it is consistent with the Act the standards, practices, and customs of other jurisdictions that substantially enact the RULONA.

Miscellaneous

  1. Retains the current fees of $5 per notarial act and $10 for the Notary’s electronic signature that Notaries may charge under current law.
  2. Clarifies that except as provided in CRS 34-21-504(2), the failure of a notarial officer to perform the duties or meet the requirements specified in the new chapter does not invalidate a notarial act performed by the officer.
  3. Provides that the validity of a notarial act under the new chapter does not prevent an aggrieved person from 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 the Act does not validate a purported notarial act performed by an individual who does not have the authority to perform the act.
  4. Clarifies that the Act does not affect the validity and effect of a notarial act performed before the effective date of the Act under a law repealed by the Act.
  5. Clarifies that in applying and construing the Act, 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.
  6. Clarifies that the Act 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.
  7. Provides that a Notary commission in effect on the effective date of the new law continues until its date of expiration.
  8. Provides that a Notary who applies to renew a commission on or after the effective date of the new law must comply with the requirements for commissioning in the new law.
  9. Provides that a Notary, in performing notarial acts after the effective date of the new law, must comply with the new law.
  10. Prohibits the Secretary of State from certifying a signature of a Notary on (a) a record that is not properly notarized in accordance with the requirements of the new chapter; or (b) a record regarding allegiance to a government or jurisdiction; relating to the relinquishment or renunciation of citizenship, sovereignty, in itinere status or world service authority; or setting forth or implying for the bearer a claim of immunity from the law of this state or federal law.
  11. Makes conforming changes to other statutes that refer to the prior Notary statutes.
  12. Provides a sunset of the new law on September 1, 2023.

Repeals

  1. Repeals the current Notary Public Act (CRS Title 12, Article 55, Part 1)
  2. Repeals the Uniform Recognition of Acknowledgments Act (CRS Title 12, Article 55, Part 2)
Analysis:

Colorado enacts the Revised Uniform Law on Notarial Acts. The effective date of the RULONA was changed by the enactment of SB 294 from August 9, 2017 to July 1, 2018. This gives everyone more time to prepare for the new law, including the Secretary of State, who may publish new rules to implement the Act. Like most RULONA enactments, Colorado tailored SB 132 to its own needs, pulling in existing statutes from the current Notary Public Act. These include the specific provisions related to the Notary’s electronic signature containing a “document authentication number” (DAN), and the unique journal provision which allows a Notary-employee to retain the actual or a copy of the notarized document instead of keeping a journal entry, if the Notary’s firm or business retains such records in the ordinary course of business. During the legislative period, SB 132 was amended in the Senate to include so-called “remote” electronic notarization provisions which would allow a Notary to perform a notarial act using audio-video communication technology. However, these provisions were controversial and were removed from the bill in an attempt to salvage the enactment of the broader RULONA provisions.

Read the bill text.

 

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