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MS Administrative Rules (2007)

Rule/Regulation

State: Mississippi

Effective: July 01, 2007

Summary

Mississippi adopts comprehensive administrative rules for Notaries Public based upon the Model Notary Act.

Affects

Amends Title 1, Part III and Chapter 14 of the Mississippi Administrative Regulations.

Changes

Notary Commission

  1. Creates several new forms for the appointment and administration of Notaries.
  2. Allows acceptance of current forms in use prior to the effective date of the final rules if received prior to October 31, 2007, and the applicant meets the qualifications for a commission as stated in Sections 103 and 104.
  3. Adds the following new qualifications for a Notary commission: (a) An applicant must read and write English; and (b) An applicant must not have been convicted of a felony.
  4. Provides that when an application is received without a bond accompanying the application, the Secretary shall provide a “pre-commission” document to the applicant with starting and ending dates for purposes of purchasing a bond.
  5. States 5 grounds upon which the Secretary of State may deny an application.
  6. Provides for the appeal of a denied application if filed with the Secretary within 45 days after denial, except that an applicant may not appeal if the Secretary has denied or revoked any previous application, commission or license or made a finding that grounds for revocation of the applicant’s commission existed.
  7. Provides that upon commissioning, the Secretary shall issue each Notary an identification number with a written commission stating the starting and ending dates of the commission. For a new commission, the date of the commission shall be the date the completed application was received by the Secretary; for a renewal commission, the date of the new commission shall be the date immediately after the expiration of the current commission.
  8. Prescribes that a current Notary may submit an application for reappointment 90 days prior to the expiration of the current commission.
  9. Stipulates that if a Notary’s $5,000 bond has been exhausted by claims paid out by the surety, the Secretary may suspend that Notary’s commission until a new bond is obtained by the Notary and the Secretary determines that the Notary is fit to serve the remainder of the term.

Status Changes

  1. Requires a Notary to send the Secretary of State a signed notice of a change of residence, business or mailing address, giving both the old and new addresses, within 30 days and prescribes a form for reporting address changes.
  2. Requires a Notary who changes his or her name due to court order or marriage to send the Secretary a signed notice of name change, giving both the old and new names, with a copy of the authorization for name change and prescribes a form for reporting name changes.
  3. Prescribes that a Notary who resigns the commission shall send a signed resignation notice to the Secretary of State and prescribes a form for reporting a resignation.
  4. Directs a Notary who reports a name change to use the former name in performing notarial acts until: (a) the formal signed notice of name change has been delivered or transmitted; (b) the Notary receives a confirmation from the Secretary of State and a replacement commission; (c) the Notary obtains a new seal in the new name; and  (d) the surety for the Notary’s bond has been informed in writing.
  5. Directs that when a commission expires without a renewal or is resigned or revoked, a Notary: (a) shall as soon as reasonably practicable, destroy or deface the Notary’s seal; and (b) shall send the circuit clerk of the Notary’s county of appointment all Notary journals and records within 30 days.
  6. Clarifies that a Notary whose commission expires but who intends to be recommissioned need not deliver the journal and records within 30 days after commission expiration as long as the previous commission or application was not revoked or denied. (Note: the journals and records must be delivered within 6 months after expiration if the Notary is not recommissioned.)
  7. Directs the Notary’s personal representative in the event of the Notary’s death to: (a) notify the Secretary of State in writing; (b) destroy or deface the Notary’s seal as soon as is practicable; and (c) deposit the Notary’s journals and records with the circuit court of the Notary’s county within 6 months of death.

Notarial Acts

  1. Authorizes a Notary to perform the notarial act of “signature witnessing” and defines the act.
  2. Prescribes standards for a signature by mark: (a) the signer must affix the mark in the presence of 2 witnesses unaffected by the document in addition to the Notary; and  (b) the Notary must write below the mark, “Mark affixed by (name of signer by mark) in the presence of (names and addresses of 2 witnesses) and undersigned notary.”
  3. Prescribes procedures for a person who cannot sign or make a mark: (a) the person must directs the Notary to sign on his or her behalf in the presence of the person and 2 witnesses unaffected by the document; and (b) the Notary must write below the signature, “Signature affixed by notary in presence of (names and addresses of the person and 2 witnesses).”

Notary Fees

  1. Allows a Notary to charge the maximum fees allowed by law, a lesser fee or to waive the fee.
  2. Prohibits a Notary from discriminatorily conditioning the fee for a notarial act on the several attributes of the principal specified in Section 203, but allows a Notary to waive or reduce the fee for a notarial act for humanitarian or charitable reasons.
  3. Authorizes a Notary to charge a travel fee if the Notary and principal agree on the fee in advance of travel and the Notary explains that the fee is in addition to the maximum fee allowed for performing the notarial act and is not specified nor mandated by law.
  4. Permits Notaries to require payment of fees prior to performing a notarization.
  5. Requires a Notary who charges for notarial services to conspicuously display in his or her place of business or present to each principal outside the places of business, an English-language schedule of fees.
  6. Provides that fees for notarizations are non- refundable if the act was completed or in case of a travel fee, the act was not completed for reasons contained in Sections 201-206 of the Administrative Regulations after the Notary commenced travel.
  7. Allows an employer to prohibit an employee-Notary from charging a fee for notarizations performed on company time.

Standards for Notarial Acts

  1. Defines “personal knowledge of identity.”
  2. Defines “satisfactory evidence of identity” as identification based upon: (a) at least 1 current document issued by a federal, state or tribal government containing a signature, photograph and physical description (but allows acceptance of a passport without a physical description); (b) 1 credible witness personally known to the Notary; and (c) 2 credible witnesses unknown to the Notary but who present documentary ID.
  3. Prohibits a Notary from performing a notarial act if: (a) the principal is not in the Notary’s presence at the time of notarization; (b) the Notary cannot positively identify the principal; (c) the principal displays a demeanor which causes the Notary to have a compelling doubt about the principal’s “awareness”; (d) the principal is not acting freely and voluntarily; (e) the Notary is a party to or named in the document; (f) the Notary is a direct family member (relations specified in the rule); (g) the Notary will receive as a direct or indirect result a fee, commission, advantage, right, title, interest, cash, property or other consideration in excess of the fee for a notarial act; (h) the Notary knows or has good reason to believe that the notarial act or associated transaction is unlawful; (i) the Notary knows the notarial certificate he or she is executing contains information known or believed by the Notary to be false; (j) the document is blank or incomplete; (k) the document does not contain notarial certificate wording;  (l) the Notary is requested to certify or authenticate a photograph; (m) the Notary acts with intent to deceive or defraud; (n) the Notary influences a person either to enter into or avoid a transaction involving a notarial act by the Notary, unless the principal does not display or demonstrate sufficient “awareness” or “willingness” to enter into the transaction; and (o) the act is prohibited under the rules.
  4. Clarifies that a Notary does not have the duty or authority to investigate, ascertain or attest the lawfulness, propriety, accuracy or truthfulness of a document or transaction involving a notarial act.
  5. Defines the unauthorized practice of law as a non-attorney Notary: (a) determining the type of notarial act or certificate needed in a particular notarization; (b) assisting another person in drafting, completing, selecting or understanding a document or transaction requiring a notarial act.
  6. Permits a non-attorney Notary who is duly qualified, trained or experienced in a particular industry or professional field from engaging in actions within the field of expertise that would be normally considered the unauthorized practice of law for a non-attorney Notary without such qualifications, training or experience.
  7. Clarifies that a Notary is not disqualified from notarizing: (a) solely by being an employee or participating in an employee stock ownership or a qualified retirement plan; (b) solely by being an attorney performing a notarial act for a client; (c) solely by being a shareholder invested in a corporation/shareholder relationship.
  8. Prohibits a Notary from refusing to perform a notarial act if the refusal is predicated upon unlawful bias or discrimination as specified in the rule.
  9. Permits a Notary to refuse a request for a notarial act if: (a) the number of acts requested practicably precludes completion of all acts at once, in which case the Notary shall arrange for later completion of the remaining acts; and (b) the act is requested outside the Notary’s regular work or business hours. (Note: the rule says a Notary may, but is not required to, perform after-hours notarizations.)
  10. Prohibits a Notary from using the Notary’s title or official seal to endorse, promote, denounce or oppose any product, service, contest, candidate or other offering.

Certificate of Notarial Act; Signature; Seal

  1. Provides statutory acknowledgment, jurat and signature witnessing certificates and requires Notaries to use these or substantially similar forms when notarizing.
  2. Requires that when notarizing a paper document, a Notary shall: (a) sign by hand on the notarial certificate exactly and only in the name indicated on the Notary’s commission; (b) not sign with a facsimile stamp or an electronic or other printing method; and (c) only sign the official signature at the time the notarial act is performed.
  3. Requires a Notary to affix a sharp, legible, permanent and photographically reproducible seal on each paper document notarized. (Note: Mississippi law previously required seal use, but did not specify that the seal must be photographically reproducible.)
  4. Prescribes the format and elements of the seal as follows: (1) (NEW) the seal must be circular in shape with a border no larger than 2½ inches in diameter surrounding the required words; (2) the seal must contain the Notary’s name exactly as on the commission, (NEW) the Notary’s identification number, the words “Notary Public” and “State of Mississippi [insert county of residence] County” and (NEW) “My commission expires (commission expiration date).”
  5. Allows a Notary to type or print illegible information within a seal impression adjacent to but not within the impression.
  6. Permits use of a non-photographically reproducible embosser in addition to but not in lieu of the official photographically reproducible seal.
  7. Provides model sample seals that meet the requirements of the new rules but also notes that other valid seal formats that meet the requirements may be used.
  8. Permits Notaries commissioned prior to July 1, 2007, to use an official seal that does not comply with Section 403.02 of the rules (points 40-43 above) as long as the seal conforms to MCA 25-33-3.
  9. Prescribes that the seal may only be affixed at the time the notarization is performed.
  10. Stipulates that the seal is to be the exclusive property of the Notary and is not to be possessed or used by any other person nor surrendered to an employer upon termination of employment.
  11. Requires a Notary to notify the appropriate law enforcement agency of a stolen seal and then notify the Secretary of State within 10 days on a form prescribed for the purpose, including a copy or number of the police report, if any; and requires a Notary to notify the Secretary if the seal is lost within 10 days.

Journal of Notarial Acts

  1. Requires a Notary to keep, maintain, protect and provide for lawful inspection a chronological official journal. (Note: the journal requirement predated the new rules, but the requirements are greatly expanded).
  2. Specifies the entries for a Notary’s journal, including: (a) the date and time of the notarial act; (b) the type of act; (c) the type, title or a description of the document or proceeding; (d) the printed name and address of each principal; (e) the fee charged, if any; (e) the address where the notarization was performed, if not the Notary’s business address; and (g) if the person is not personally known to the Notary, the Notary may require the principal to sign the journal and record the type of satisfactory evidence used to identify the signer.
  3. Prohibits a Notary from recording a Social Security or credit card number in the journal.
  4. Stipulates that to inspect a journal entry, the following procedures must be followed:(a) the requester must be personally known to the Notary or produce satisfactory evidence of identity; (b) The requester must affix a signature in the journal in a separate, dated entry; (c) the requester must specify the month, year, type of document and name of the principal for the notarial act or acts; and (d) The Notary must only show the entry or entries requested.
  5. Requires a Notary to record in the journal the circumstances of any request to inspect or photocopy an entry in the journal and any reasons for refusal of the request.
  6. Authorizes a Notary to refuse a journal entry inspection request if the Notary has a reasonable and explainable belief that the requester bears a criminal or harmful intent in inspecting the journal.
  7. Requires a Notary to notify the appropriate law enforcement agency of a stolen or vandalized journal, and notify the Secretary of State of a stolen, lost, destroyed or damaged journal within 10 days by certified mail, electronic transmission or any means providing a tangible receipt, including a copy or number of the police report, if any.

Official Misconduct and Remedies

  1. Defines “official misconduct, misfeasance and malfeasance” as: (a) a Notary’s performance of any prohibited act, a failure to perform a mandated act under Mississippi law or rule in connection with a notarial act; or (b) a Notary’s performance of an official act in a manner found by the Secretary to be negligent or against the public interest.
  2. Permits the Secretary of State to revoke a Notary commission for any ground on which an application may be denied.
  3. Requires the Secretary to revoke the commission of a Notary who fails to: (a) maintain a residence in Mississippi; and (b) maintain status as a U.S. legal resident.
  4. Permits the Secretary to suspend a Notary commission for actions contrary to Mississippi Notary law or other law, and the administrative rules.
  5. Requires the Secretary to inform the Notary of the basis for revocation or suspension and the effective date of the revocation or suspension unless a proper appeal is filed with the Secretary before that date.
  6. Clarifies that resignation or expiration of a Notary commission does not terminate or preclude an inquiry into the Notary’s conduct by the Secretary of State.
  7. Clarifies that in addition to any civil sanctions for misconduct, a Notary may be liable for criminal sanctions.
  8. Permits the Secretary to deliver a written Oral Warning to Cease Misconduct, Misfeasance or Malfeasance to a Notary who is in violation of Mississippi Notary law or other law, and the administrative rules at the Notary’s residence address and/or such other address as the Secretary may deem necessary.
  9. Requires the Secretary of State to regularly publish a list of persons whose Notary commissions have been revoked or suspended by the Secretary or a court.
  10. Provides that complaints against the conduct of a Notary Public shall: (a) be made in writing and under oath to the Secretary of State; and (b) state all pertinent facts and include a copy of the notarial certificate in question and the status of any pending litigation.
  11. Provides that complaints alleging violation of criminal statutes by a Notary should be made to the district attorney for the county in which the violation occurred.
  12. Enables the Secretary, in his or her sole discretion, to defer action on any complaint pending the outcome of civil or criminal litigation.
  13. Specifies the following procedures for appeals: (a) an appeal should be addressed to the Business Services Division of the Secretary of State’s office; (b) the appeal shall be in writing and made under oath; (c) the written appeal shall include copies of 3 pages of the Notary’s journal, including the pages prior to and after the entry of information surrounding the certificate under appeal; (d) an appeal will be on the record unless an oral hearing is requested; (e) oral hearings are at the sole discretion of the Secretary; (f) the Notary shall bring the original journal to any oral hearing for review by the hearing officer.

Authentications of Notarial Acts

  1. Provides for the issuance of certificates of authority and apostilles, including the forms for certificates and the apostille.

Fees and Forms

  1. Contains a list of fees to be charged by the Secretary of State’s office for services concerning Notary commissions and authentications and provides an appendix of all forms to be used by the Secretary’s office.
Analysis

The new Mississippi administrative rules are arguably the most comprehensive adoption of the Model Notary Act paper-based provisions to date, perhaps eclipsed only by North Carolina, which enacted major provisions of Article III (electronic notarization provisions). In any event, the Model Notary Act of 2002 has been substantially adopted according to three different models: (1) by legislative enactment as statute (New Mexico and North Carolina); (2) by a Governor’s executive order (Massachusetts); and (3) by administrative rule (Mississippi). One of the lessons the NNA can learn from Mississippi is to promote adoption of the MNA through the rulemaking process. It may be an easier and more effective strategy for a state to adopt the Model Notary Act through rulemaking.

The Mississippi Secretary of State is to be commended for his “never say die” determination to adopt the Model Notary Act. After seeking to have the MNA adopted by the Mississippi Legislature last year and suffering defeat, the Secretary made a brilliant strategic move of supporting a rather innocuous law passed in the Spring of 2007 giving the Secretary rulemaking authority (see New Law Alert 09-07 issued March 29, 2007), which then opened the door for adoption of the MNA through Mississippi’s Administrative Procedures Act.

To read the adopted administrative rules, click Download PDF below.

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