ID House Bill 209 | NNA
Law

ID House Bill 209

Notary Law Update: ID House Bill 209

State: Idaho

Summary:

Idaho becomes the seventh state to enact the Revised Uniform Law on Notarial Acts.

Signed:  March 27, 2017

Effective:  July 01, 2017

Chapter: 192

Affects:

Repeals Title 1, Chapter 51 and Title 7, Chapter 55, and adds a new Chapter to replace repealed Chapter 51 of the Idaho Code.

Changes:

Definitions

  1. Adds new definitions for the following terms used in the Act: “Acknowledgment,” “Electronic,” “Electronic signature,” “Foreign state,” “In a representative capacity,” “Notarial act,” “Notarial officer,” “Notary public,” “Official stamp,” “Person,” “Record,” “Sign,” “Signature,” “Stamping device,” “State” and “Verification on oath or affirmation.”
  2. Adopts the Uniform Electronic Transactions Act (UETA) definitions of “Electronic,” “Electronic Signature” and “Record.”
  3. Adopts the Uniform Commercial Code Section 2 definition of “Sign.”
  4. 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.
  5. 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.
  6. 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.

Applicability; Operative Date

  1. Clarifies that the RULONA applies to notarial acts performed on or after July 1, 2017.
  2. Clarifies that Sections 5 (repeal of IC 51-117, conditions impairing validity of a notarial act), 6 (new IC 51-117, the new official stamp provisions) and 7 (new IC 51-118, related to the stamping device) take effect on October 1, 2018.
  3. Clarifies that the requirement for the course of study takes effect on July 1, 2019.

Qualifications; Commissioning; Registration to Notarize Electronic Records

  1. Prescribes the following new qualifications for a Notary commission: (a) The application must be a citizen or legal resident of the U.S. and (b) The applicant must not be disqualified to receive a commission under Section 51-123.
  2. Requires an applicant for a commission to submit a $10,000 “assurance” in the form of a surety bond or its functional equivalent.
  3. Requires the licensed surety or issuing entity providing a Notary's “assurance” to give 30 days' notice to the Secretary of State before cancelling the assurance.
  4. Requires the licensed surety or issuing entity providing a Notary's “assurance” to notify the Secretary of State if it makes a payment to a claimant under the Notary’s assurance within 30 days of making a payment.
  5. Requires the Secretary of State or an entity approved by the Secretary to regularly offer a course of instruction to applicants who do not hold a commission.
  6. Clarifies that a Notary commission does not provide a Notary any immunities or benefits conferred by law on public officials or employees.
  7. 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; Fees for Notarial Acts

  1. Authorizes Notaries Public and notarial officers to perform signature witnessings, verifications upon oath and affirmation and protests. (Note: A Notary’s authority to perform acknowledgments, administer oaths and affirmations and perform copy certifications carry over.)
  2. 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.
  3. Authorizes a notarial officer to refuse to perform a notarial act unless refusal is prohibited by other law.
  4. Raises the maximum fee Notaries may charge from $2 to $5.

Disqualifications

  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.

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, but does not require an individual to appear before the notarial officer for a 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 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. 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)” or words of similar import near the signature.

Official Stamp

  1. Until October 1, 2018, requires a Notary to use a seal with elements that conform with current law, but requires the seal to be a rubber stamp, and not a seal embosser.
  2. On October 1, 2018, no longer requires or allows the Notary’s official stamp to contain a serrated or milled edge border.
  3. On October 1, 2018, sets the dimensions for the Notary's official stamp: a maximum size of 1" x 2.25" if rectangular, or 1.75" in diameter if round, and requires the stamping device to be an inked stamp.
  4. On October 1, 2018, requires the Notary's commission identification number to appear in the stamp.
  5. Requires the Notary to affix or emboss the Notary’s official stamp on the notarial certificate a Notary completes.
  6. 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.
  7. 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.
  8. 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 on resignation from, or the revocation or expiration of, the Notary’s commission, or on the expiration of the date set forth in the stamping device.
  9. Requires, in the event of the Notary’s death or adjudication of incompetency, the Notary’s personal representative or other person knowingly in possession of the stamping device to render it unusable.
  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.

Notarial Certificates

  1. 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 and dated by the notarial officer, (c) identifies the jurisdiction in which the notarial act is performed, and (d) contains the Notary’s commission expiration date.
  2. 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.
  3. Prohibits a notarial officer from signing a notarial certificate on a tangible or electronic record until the notarial act has been performed.
  4. Clarifies that the text of a notarial certificate is sufficient if it: (a) is in a short form contained in Section 51-116; (b) it is in a form otherwise permitted by Idaho law; (c) is in a form permitted by law applicable in the jurisdiction in which the notarial act is performed; or (e) sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of Sections 51-105, 51-106 and 51-107 (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).
  5. Clarifies that in executing a notarial certificate, a notarial officer certifies that he or she has complied with the requirements of Sections 51-105, 51-106 and 51-107 (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 and identified on the basis of personal knowledge or satisfactory evidence).
  6. Prohibits a notarial officer from signing or logically associating the signature with a certificate until the notarial act has been performed.
  7. Requires that a certificate for a paper record must be part of, or securely attached to, the record.
  8. 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.
  9. Adopts new short-form certificates for all authorized notarial acts.

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 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 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; Liability; Penalties

  1. States that a commission to perform notarial acts does not allow an individual: (a) assist persons in drafting legal records, giving legal advice or otherwise practicing 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 prohibited acts in (a), (b) or (c).
  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”; and further provides 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. Prohibits a Notary from withholding access to or possession of an original record provided by a person who seeks performance of a notarial act by the Notary.
  8. 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 51; (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 51, 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; (h) a denial, refusal to renew, revocation, suspension or conditioning of a Notary commission in another state; (i) failure of the Notary to maintain an assurance ($10,000 surety bond or its functional equivalent).
  9. 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 Chapter 52, Title 67 of the Idaho Code.
  10. 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 Idaho law as if performed by an Idaho Notary: (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 Idaho law as if performed by an Idaho Notary: (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 Idaho law as if performed by an Idaho Notary: (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 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 Idaho law as if performed by a Notary of Idaho.
  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.

Administrative Rules

  1. Permits the Secretary of State to adopt rules to implement Chapter 51.
  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.
  3. Provides that any rules adopted by the Secretary may: (a) prescribe the manner of performing notarial acts regarding tangible and electronic records; (b) include provisions to ensure that any change to or tampering with a record bearing a certificate of a notarial act is self-evident; (c) include provisions to ensure integrity in the creation, transmittal, storage or authentication of electronic records or signatures; (d) prescribe the process of granting, renewing, conditioning, denying, suspending or revoking a notary public commission and assuring the trustworthiness of an individual holding a commission as Notary; (e) include provisions to prevent fraud or mistake in the performance of notarial acts; (f) establish the process for approving and accepting surety bonds and other forms of assurance under Section 51-121(4); and (g) provide for the course of study under Section 51-122.
  4. Provides that in adopting rules about notarial acts with respect to electronic records, the Secretary shall consider: (a) the most recent standards regarding electronic records promulgated by national bodies, such as the National Association of Secretaries of State; (b) standards, practices and customs of other jurisdictions that substantially enact the RULONA; and (c) the views of governmental officials and entities and other interested persons.

Miscellaneous

  1. Clarifies that the failure of a notarial officer to perform the duties or meet the requirements specified in Chapter 51 does not invalidate a notarial act performed by the officer, that the validity of a notarial act under Chapter 51 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 this provision 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 51 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 51 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. Clarifies that a commission as a Notary in effect on July 1, 2017 continues until its date of expiration, that a Notary who applies for a commission as a notary public on or after July 1, 2017, is subject to and shall comply with the new laws, and that a Notary, in performing notarial acts on or after July 1, 2017, shall comply with the new laws.
  5. Provides that enactment of the new laws do not affect the validity or effect of a notarial act performed before July 1, 2017.
  6. Makes conforming changes.

Repealers

  1. Repeals current Chapter 51 of Title 1.
  2. Repeals Chapter 55 of Title 7.
Analysis:

Idaho becomes the seventh state to enact the Revised Uniform Law on Notarial Acts. As with most enactments in other states so far, Idaho adopts most of the uniform provisions while retaining its own unique provisions. Notably in Idaho’s enactment is the provision that the Secretary or an entity approved by the Secretary offer a regular course of study to prepare applicants for a Notary commission. Under current law, there is no provision for a course of study. The new law allows Notaries to use electronic signatures, and replaces many of the notarial certificate forms under current law with the RULONA “short form” certificates. There are Notary seal changes as well. Until October 1, 2018 (see below for a discussion of the effective date), Notaries may use a rubber stamp seal with a serrated or milled edge border containing the same seal elements required under current law. No longer may Notaries use a seal embosser as the official seal. After October 1, 2018, the seal may not contain a serrated or milled edge border, but will contain the same seal elements. Also on that date, the dimensions of the seal (called an “official stamp”) are strictly defined.

There is a staggered effective date. July 1, 2017 is the date for most of the Act. However, a seal provision that reflects the requirements of current law will be in effect until July 1, 2018. At that time two new sections will replace it. The course of study provision won’t take effect until July 1, 2019.

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