IN Senate Bill 539 | NNA
Law

IN Senate Bill 539

Notary Law Update: IN Senate Bill 539

State: Indiana

Summary:

Senate Bill 539 comprehensively revises Indiana's Notary Public statutes effective July 1, 2018.

Signed:  April 21, 2017

Effective:  July 01, 2018

Chapter: Public Law No. 128

Affects:

Adds new Chapters 0.5, 9, 10, 12, 13, 14, 15 and 16 to Title 33, Article 42 to and repeals Sections 33-42-1, 33-42-1, 33-42-2, 33-42-3, 33-42-4, 33-42-8, 33-42-9, 35-52-33-5, 35-52-33-6, 35-52-33-7 of the Indiana Code

Changes:

Definitions

  1. Defines “acknowledgment,” “credential.” “in a representative capacity,” “notarial act,” “notarial officer,” “Notary Public,” “official seal,” “person,” “principal,” “record,” “sign,” “signature,” “stamping device,” “state,” and “verification upon oath or affirmation.”

Notarial Acts

  1. Requires a notarial officer who attests or certifies a copy of a record or item to verify that the copy is an accurate, full, and true reproduction or transcription of the record or item.
  2. Provides that if a notarial act relates to a statement made in or a signature executed on a record, the declarant or signatory shall appear personally before the notarial officer.
  3. Requires a notarial officer who takes an acknowledgment or verification upon oath or affirmation and who attests or witnesses a signature to determine, from personal knowledge or satisfactory evidence, that the individual appearing before the officer has the identity claimed and that the signature on the record is the signature of the individual.
  4. Clarifies that a notarial officer has personal knowledge of an individual’s identity if the individual is personally known to the notarial officer or the notarial officer has transacted sufficient, prior business with the individual to know the individual’s identity.
  5. Provides that if a notarial officer does not have personal knowledge of the identity of an individual, the officer may verify the individual’s identity by means of satisfactory evidence.
  6. Clarifies that a notarial officer has satisfactory evidence through one of the following means: (a) inspection of one of the following IDs that are not expired by more than 3 years: a passport, driver’s license, government-issued ID, credential that is not a passport, driver’s license or government-issued ID that is government issued and contains a photograph of the individual. (b) verification upon oath or affirmation of a credible witness who personally appears before the notarial officer and is personally known to the notarial officer or is identified by a credential listed in (a) above.
  7. Allows a notarial officer to require an individual to provide additional identification or information before performing a notarial act.
  8. Allows a notarial officer to refuse to perform a notarial act if the officer is not satisfied that (a) the individual executing the record is competent or (b) the individual’s execution of a record is being done knowingly or voluntarily.
  9. Allows a notarial officer to refuse to perform a notarial act unless the refusal is prohibited by law.
  10. Allows a principal to appoint or direct another individual to sign a record if the principal is physically unable to do so, provided the notarial officer notes the principal’s use of the other individual to sign the record by clearing labeling the appointee or designee’s signature, clearly labeling the name of the principal and including or using language that conveys the principal’s intent to use an assigned or designated signatory.

Recognition of Notarial Acts

  1. Clarifies that the signature and title of notarial officer authorized under Indiana law to perform notarial acts is prima facie evidence of the genuineness of the officer’s signature and title.
  2. Provides that the notarial acts performed by the following officers of another state are presumed valid and have the same effect under Indiana law as if performed by an Indiana 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.
  3. Provides that the notarial acts performed by the following officers of a federally-recognized Indian tribe are presumed valid and have the same effect under Indiana law as if performed by an Indiana 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.
  4. Provides that the notarial acts performed by the following officers under federal law are presumed valid and have the same effect under Indiana law as if performed by an Indiana 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.
  5. 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 is presumed valid and has the same effect under Indiana law as if performed by a Notary of Indiana.
  6. 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 comparable listing, the authority of an officer with that title to perform notarial acts is conclusively established; and further provides that the signature and official seal 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 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 when affixed or attached to the record associated with the executed notarial act conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

Notarial Certificates

  1. Requires each notarial act performed to be authenticated by a certificate that: (a) is executed contemporaneously with the performance of the notarial act, (b) is signed and dated by the notarial officer, and if the officer is a Notary, signed in the manner on file with the Secretary of State for that Notary, (c) identifies the jurisdiction in which the notarial act is performed, (d) contains the notarial officer’s title, and (e) if the notarial officer is a Notary, contains the Notary’s commission expiration date and county of the Notary’s commission.
  2. Requires a Notary to affix, display or emboss the Notary’s official seal on a certificate of acknowledgment, jurat or other record unless the name of the Notary appears in printed form on the record, or appears as part of the Notary’s seal and is legible when the record is photocopied.
  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 a certificate with a Notary’s seal constitutes presumptive evidence of the facts stated in cases, where by law, the Notary is authorized to certify facts.
  5. Clarifies that a Notary’s official seal, when properly executed and affixed, associated or attached to a record, makes the record self-authenticating for the purpose of a court proceeding.
  6. Clarifies that corrections may never be made to the impression of an official seal.

Official Seal and Stamping Device

  1. In addition to the elements required in the Notary’s official seal today, requires the Notary’s official seal to contain: (a) the name of the Notary exactly as it appears on the Notary’s commission certificate, (b) the words, “commission number” followed by the Notary’s commission number; and (c) the words “my commission expires” followed by the commission expiration date.
  2. Permits other information chosen by the Notary to be included in the seal, provided the required elements are present.
  3. Clarifies that the Notary’s official seal must be capable of being copied together with the record to which it is affixed, attached, or associated.
  4. Clarifies that a Notary is responsible for the security of the Notary’s stamping device.
  5. Prohibits the Notary from allowing any other person to use the Notary’s stamping device.
  6. Requires a Notary to damage, deface, destroy, erase or secure the Notary’s stamping device in a manner that precludes any further use of the device upon the expiration, resignation or revocation of the Notary’s commission.
  7. Requires the Notary’s guardian or personal representative to damage, deface, destroy, erase or secure the Notary’s stamping device in a manner that precludes any further use of the device upon the adjudication of incompetency or death of the Notary.
  8. Requires a Notary to promptly notify the Secretary of State’s office if the Notary’s stamping device is lost or stolen.

Commissioning

  1. Requires an applicant for a Notary commission: (a) to be a citizen or permanent resident of the U.S.; (b) to either be a resident of Indiana or be primarily employed in Indiana; (c) to satisfy all educational requirements; (d) to have passed the examination; and (e) not be disqualified to receive a commission under IC 33-42-13 (relating to discipline of Notaries).
  2. Requires an applicant for a Notary commission to submit an electronic signature sample to the Secretary of State.
  3. Requires a Notary to have an “assurance” in the form of a surety bond or its functional equivalent that covers the Notary’s acts or omissions during the course of the Notary’s commission and clarifies that a Notary may perform notarial acts only during the period covered by a valid assurance on file with the Secretary of State.
  4. Raises the amount of the Notary “assurance” (bond) from $5,000 to $25,000. 
  5. Requires a Notary to submit, or have submitted by the surety on the applicant’s behalf, an electronic copy of the assurance not later than 30 days after the effective date of the assurance.
  6. Requires an applicant for a Notary commission to complete a course of education and examination administered by the Secretary of State.
  7. Requires a Notary to take a continuing education course not exceeding 2 hours administered by the Secretary of State every 2 years. 
  8. Clarifies that a Notary commission does not grant any benefit or immunity.
  9. Reduces the filing fee for a Notary commission from $11.22 to $5.
  10. Clarifies that a Notary may not have more than 1 active commission at a time.
  11. Requires an “assurance” (surety company or other entity or person providing the assurance) to notify the Secretary of a payment on the assurance not later than 30 days after issuing a payment to a claimant. 
  12. Requires a Notary to inform the Secretary of State of changes in person information, (name, residential address, mailing address, personal email address, personal telephone number, and employer’s name, address and telephone number) not later than 30 days after the change.
  13. Requires a Notary who changes his or her name to file the following documents with the Secretary of State: (a) A rider or other record issued by the Notary’s surety reflecting the change of name; and (b) an example of the Notary’s new, official signature.
  14. Requires a Notary to inform the Secretary of State of the following occurrences not later than 14 days after they occur: (a) The Notary is convicted of a felony offense involving deceit, dishonesty, or fraud; (b) The Notary is found to have acted deceitfully, dishonestly, or fraudulently in any disciplinary action or legal proceeding; and (c) The Notary has a Notary commission denied, restricted, or revoked in another U.S. state.
  15. Clarifies that the commission of a Notary who is no longer a citizen or resident of Indiana, or primarily employed in Indiana will be treated as resigned.
  16. Provides that the Secretary of State may deny, refuse to renew, revoke, suspend or impose a condition on a commission granted to a Notary for any act or omission that demonstrates a deficiency in competence, honesty, integrity, or reliability.
  17. Specifies the following grounds for the Secretary of State taking action against the commission of a Notary: (a) any failure to comply with the requirements of this article or rules adopted under Indiana’s Notary statutes; (b) any deceitful, dishonest, or fraudulent statement or omission made during the application for a commission; (c) any conviction for a felony offense or a crime involving deceit, dishonesty, or fraud; (d) an adverse ruling or admission of liability in any legal proceeding pertaining to deceit, dishonesty, or fraud; (e) any failure to discharge any duty required of a Notary; (f) any use of false or misleading advertisements; (g) use of any false or misleading statement claiming a right or privilege that the Notary public does not have; (h) any denial, refusal to renew, revocation, suspension, or conditioning of a notary public commission in another state; (i) any violation of a rule or requirement that pertains to a Notary public; and is required by the secretary of state; and (j) any failure to maintain an assurance as described in IC 33-42-12.
  18. Clarifies that if the Secretary of State takes action against the commission of a Notary or an applicant for a Notary commission, the Notary or applicant is entitled to timely notice and a hearing as described in IC 4-21.5.
  19. Provides the Secretary of State taking action against the commission of a Notary or an applicant for a Notary commission does not prevent a person from pursuing a civil or criminal cause of action against the Notary or applicant.
  20. Provides that a Notary whose commission has been revoked may not reapply for a new commission until 5 years after the revocation. 
  21. Clarifies that a Notary commission in effect on the effective date of the new laws remains in effect until its date of expiration, and also clarifies that a Notary who applies or reapplies for a commission on our after the effective date is subject to the new laws.

Prohibited Acts and Penalties

  1. Provides that a notarial officer who, with intent to defraud, knowingly or intentionally affixes a person's signature to a blank affidavit or certificate of acknowledgment and delivers that affidavit or certificate to another person with the intent that it be used as an affidavit or acknowledgment commits Notary fraud, a Level 6 felony.
  2. Provides that a person who knowingly or intentionally uses an affidavit or certificate described #1 above for any purpose commits notarial fraud, a Level 6 felony.
  3. Clarifies that a Notary commission does not allow a Notary to (a) provide legal advice or otherwise practice law; (b) act as an immigration consultant or provide advice on immigration matters; (c) represent a person in an administrative or judicial proceeding related to citizenship or immigration; (d) use an initial or name, other than the initial or name under which the N has been commissioned, to sign an acknowledgment; (e) at the time the Notary takes the acknowledgment or administers an oath to any person the Notary public knows to be adjudicated mentally incompetent or under a guardianship described in IC 29-3; (f) take an acknowledgment from any person who is blind without first reading the record to the person who is blind; (g) Take the acknowledgment of any person who does not speak or understand the English language unless the nature and effect of the record is translated into a language the person speaks or understands; (h) Take the acknowledgment of a record without witnessing a signature or receiving an acknowledgment from the principal that the signature is authentic; (i) Take a verification of an affidavit or oath in the absence of an affirmation of truth by the affiant; (j) Perform a notarial act for oneself, one's spouse, or any party that may directly benefit the Notary, the Notary’s spouse or any party.
  4. Prohibits a Notary from: (a) engaging in false or deceptive advertising; (b) using the term "notario" or "notario publico" unless the Notary is an attorney; advertise or represent that the Notary public can draft legal documents, provide legal advice, or otherwise practice law unless the Notary is an attorney; (c) withholding access to or possession of an original record provided by a person seeking the performance of a notarial act by a Notary.
  5. Provides that a Notary who violates the new laws chapter may have the Notary’s commission revoked by a judge with jurisdiction in the county in which the Notary resides or is primarily employed.
  6. Authorizes the Secretary of State to investigate any violation of Indiana’s Notary laws by a Notary and revoke the commission of a Notary.
  7. Provides that a Notary who has been convicted of notario publico deception may not reapply for a new commission.
  8. Provides that a person who knowingly or intentionally advertises notarial services without using the disclaimer required by law, advertises notarial services while claiming to be an expert on immigration matters without being a designated entity as described in 8 CFR 245 a.11, or accepts payment in exchange for providing legal advice or any other assistance that requires legal analysis, judgment, or interpretation of the law commits notario publico deception, a Class A misdemeanor.
  9. Clarifies that it is a defense to a prosecution for notario publico deception that a Notary is also licensed to practice law in Indiana.

Advertising

  1. Requires a Notary who advertises notarial services to include the following statement in each advertisement: "I am not an attorney licensed to practice law in Indiana. I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities."
  2. Requires the disclaimer in #1 above to be translated into every language used in an advertisement.
  3. Clarifies that if size or space restrictions make it impossible for the disclaimer in #1 above be incorporated into an advertisement, the disclaimer described shall be prominently displayed at the site of the notarial service.
  4. Requires a display of the disclaimer in #1 above to be shown before the performance of a notarial act.
  5. Provides that these particular advertising requirements do not apply to a Notary who is licensed to practice law in Indiana.

Notary Fees

  1. Raises the fee that Notaries may charge for notarial acts from $2 to $10 for acknowledgments, oaths and affirmations, signature witnessings, verifications upon oath or affirmation, and copy certifications, and states that fees for other notarial acts not specified are negotiable. 
  2. Requires a Notary to display, in advance, a list of fees if the Notary charges a fee. 
  3. Allows a Notary to charge a reasonable fee for traveling to perform a notarial act not to exceed the federal travel fees established by the U.S. General Services Administration.
  4. Provides that fees for notarial acts performed as part of the Notary’s employment or do not require recordkeeping are subject to private agreement and are not and are not governed by the fees section. 
  5. Clarifies that a public official or deputy or appointee of a public official who provides Notary services may not charge a fee for notarizations in connection with any official business of that office or any other office belonging to the governmental unit in which the person serves, but also clarifies that this provision does not apply if another statute authorizes the individual to charge a fee. 

Apostilles

  1. Permits the Secretary of State to attest to the authenticity of the signature of a public official in Indiana, including a Notary Public.
  2. Prohibits the Secretary of State from certifying or attesting to the signature of a Notary on a document regarding: (a) allegiance to a government or jurisdiction; (b) the relinquishment or renunciation of citizenship, military status, sovereignty, or world service authority; or (c) a claim of immunity from the jurisdiction of the United States, the laws of any state of the United States, or federal law.
  3. Requires the Secretary of state to collect two dollars ($2) for each attestation of a public officer or Notary; however, no fee may be collected for an attestation pertaining to an adoption, birth certificate, death certificate, student transcript or a document prepared by the secretary of state.

Miscellaneous

  1. Requires the Secretary of State to maintain an electronic database of active Notaries Public.
  2. Clarifies that the failure of a Notary or notarial officer to perform a duty or meet a requirement specified in the new statutes does not invalidate a notarial act performed by the Notary or officer; but also clarifies this presumption of validity does not prevent an injured party from seeking to invalidate a document or record reliant upon an incomplete notarial act or to obtain any other remedy provided by the laws of Indiana or the U.S.
  3. Clarifies that the presumption of validity of a notarial act does not apply to acts performed by unauthorized individuals or described in IC 33-42-13-3(a)(10).
  4. Clarifies that the new laws do not affect the ongoing validity or effect of notarial acts performed before January 1, 2018.
  5. Authorizes the Secretary of State to promulgate rules to implement the new laws.
Analysis:

Indiana overhauls its Notary statutes effective July 1, 2018. SB 539 is particularly timely because Indiana’s statutes haven’t substantively been revised in many years. The new laws blend many provisions from the Revised Uniform Law on Notarial Acts (RULONA) with provisions unique to Indiana. Notable new provisions include the mandatory education and examination required to become a Notary, as well as the continuing education required every 2 years. The NNA understands that the required education will be handled by the Secretary of State’s office. Upon introduction, SB 539 included provisions for electronic notarization as well as “remote” electronic notarization – performing an electronic notarial act by means of audio-video communication without having to appear physically in person before a Notary. However, some industry voices pushed back over these provisions and it was decided to move forward with the expansive provisions revising “paper” notarization and to come back to the General Assembly later to add the electronic and remote provisions.

Read the bill text. 

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