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Law

MS House Bill 1156

Notary Law Update: MS House Bill 1156

State: Mississippi

Summary:

Mississippi substantively enacts the Revised Uniform Law on Notarial Acts paper and electronic notarization provisions.

Signed:  June 25, 2020

Effective:  July 01, 2021

Chapter: TBD

Affects:

Adds as yet uncodified sections to, amends Sections 25-7-1, 89-3-1, 89-3-7 and 89-5-8 of, and repeals Sections 25-7-29, 25-33-1, 25-33-3, 25-33-5, 25-33-7, 25-33-9, 25-33-11, 25-33-13, 25-33-15, 25-33-17, 25-33-19, 25-33-21, 25-33-23, 25-33-25, 25-33-27, 25-33-29, 25-33-31, 25-33-33, 89-3-3, 89-3-5, 89-3-9, 89-3-11, 89-3-13, and 89-3-15 of the Mississippi Code.

Changes:

Definitions

  1. Defines "acknowledgment", "electronic", "electronic signature", “foreign state”, "in a representative capacity", "notarial act", "notarial officer", "notary public", "official seal", "record", "sign", "signature", "stamping device", "state” and "verification on oath or affirmation".

Commission and Appointment

  1. Provides that an applicant for a commission as a Notary Public must not be disqualified to receive a commission under Section 22 of this Act.
  2. Requires the surety or issuing entity of the Notary’s assurance (bond) to give 30 days' notice to the Secretary of State before canceling the assurance.
  3. Requires the surety or issuing entity of the Notary’s assurance to notify the Secretary of State not later than 30 days after making a payment to a claimant under the assurance.
  4. Clarifies that a Notary may perform notarial acts in this state only during the period that a valid assurance is on file with the Secretary of State.
  5. Clarifies that a commission to act as a Notary Public authorizes the Notary to perform notarial acts and does not provide the Notary any immunity or benefit conferred by the laws of this state on public officials or employees.
  6. Authorizes the Secretary of State to deny, refuse to renew, revoke, suspend or impose a condition on a commission as Notary Public for any act or omission that demonstrates the individual lacks the honesty, integrity, competence or reliability to act as a Notary, including: (a) failure to comply with this Act; (b) a fraudulent, dishonest or deceitful misstatement or omission in the application for a commission as a Notary submitted to the Secretary of State; (c) a conviction of any felony, including a plea of nolo contendere, of the applicant or Notary, unless released from incarceration more than 10 years before the commission is to take effect or, if no incarceration is ordered, more than 10 years from the conviction date have passed; (d) a conviction, including a plea of nolo contendere, of the applicant or Notary for any crime determined by the Secretary of State to be of a nature incompatible with the duties of a Notary; (e) failure by the Notary to discharge any duty required of a Notary, whether required by this act, 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) failure of the Notary to maintain an assurance as provided in Section 21(4) of the Act; or (j) failure to maintain and protect the Notary's journal as required by the Act and any rules promulgated by the Secretary of State under the Act.
  7. Clarifies that the authority of the Secretary of State to deny, refuse to renew, suspend, revoke or impose conditions on a commission as a Notary Public does not prevent a person from seeking and obtaining other criminal or civil remedies provided by law.
  8. Requires the Secretary of State to maintain an electronic database of notaries public: (a) through which a person may verify the authority of a Notary to perform notarial acts; and (b) which indicates whether a Notary has notified the Secretary of State that the Notary will be performing notarial acts on electronic records.

Notarial Acts

  1. Clarifies that the Act applies to a notarial act performed on or after July 1, 2021.
  2. Provides that a notarial officer may (a) certify depositions of witnesses; (b) make or note a protest of a negotiable instrument; and (c) make an affidavit regarding the truth of any witnesses or attested signatures in question along with any corrected language and, if the authenticity or correctness of language affects real property, file the same in the land records in the office of the chancery clerk where the land is located.
  3. Provides that a notarial act is voidable when the officer (a) is a party to the record being notarized, (b) is a spouse, child, sibling, parent, grandparent, grandchild, aunt or uncle, or niece or nephew, including a son or daughter-in-law, a mother or father-in-law, a stepchild or stepparent, or a half-sibling, of the person whose signature is being notarized or (c) will receive as a direct result any commission, fee, advantage, right, title, beneficial interest, cash, property or other consideration exceeding in value the fees required by rules established by the Secretary of State.
  4. Requires a notarial officer who takes an acknowledgment, takes a verification of a statement on oath or affirmation (jurat), or witnesses or attests to a signature, to determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing in person before the officer has the identity claimed and that the signature on the record is the signature of the individual.
  5. Requires a notarial officer who makes or notes a protest of a negotiable instrument to determine the matters set forth in Section 75-3-505(b).

Standards for Notarial Acts

  1. Provides that a notarial officer has personal knowledge of the identity of an individual appearing before the officer if the individual is known personally to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
  2. Provides that a notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual by means of inspecting: (a) an unexpired passport, (b) an unexpired driver's license or a driver's license that has not been expired for more than 5 years, (c) a government-issued nondriver identification card, (d) a Mississippi voter ID card or an unexpired photographic identification card issued by a federally recognized Indian tribe or nation; or (e) another form of government identification issued to an individual which is not expired, contains the signature and a photograph of the individual, and is satisfactory to the officer.
  3. Authorizes a notarial officer to require an individual to provide additional information or identification credentials necessary to assure the officer of the identity of the individual.
  4. Authorizes a notarial officer may refuse to perform a notarial act if the officer (a) knows or suspects the transaction is illegal, false or deceptive, (b) is not satisfied that the individual executing the record is competent; (c) is not satisfied that the individual executing the record has the capacity to execute the record, (d) is not satisfied that the individual's signature is knowingly and voluntarily made; or (e) is not satisfied that the notarial act is in compliance with this act or with rules issued by the Secretary of State to implement this act.
  5. Authorizes a notarial officer to refuse to perform a notarial act unless refusal is prohibited by any law other than this act.
  6. Provides that a Notary may not be required to perform a notarial act outside the Notary's regular workplace or business hours.
  7. Provides that an individual who is physically unable to sign a record may direct an individual other than the notarial officer to sign the individual's name on the record, and requires the notarial officer to insert "Signature affixed by (name of other individual) at the direction of (name of individual)" or words of similar import.
  8. Clarifies that commission as a Notary Public does not authorize an individual to: (a) assist persons in drafting legal records, give legal advice or otherwise practice law, (b) act as an immigration consultant or an expert on immigration matters, (c) represent a person in a judicial or administrative proceeding relating to immigration to the United States, United States citizenship or related matters, or (d) receive compensation for performing any of the activities listed in this subsection.
  9. Prohibits a Notary from engaging in false or deceptive advertising.
  10. Provides that except as otherwise allowed by law, a Notary may not withhold access to or possession of an original record provided by a person that seeks performance of a notarial act by the Notary.

Certificate of Notarial Act

  1. Requires a notarial act to be evidenced by a certificate.
  2. Requires a certificate of notarial act to (a) be executed contemporaneously with the performance of the notarial act, (b) be signed and dated by the notarial officer and, if the notarial officer is a Notary Public, be signed in the same manner as on file with the Secretary of State,(c)identify the jurisdiction in which the notarial act is performed;(d) contain the title of office of the notarial officer, and (e) contain the expiration date of the Notary’s commission, if the notarial officer is a Notary.
  3. Provides that if a Notary performs a notarial act regarding a tangible record, the Notary's official seal must be affixed to the certificate.
  4. Provides that if a notarial officer other than a Notary performs a notarial act regarding a tangible record by and the certificate is signed by the officer, identifies the jurisdiction of the notarial act and contains the notarial officer’s title, the notarial officer's official seal may be affixed to the certificate.
  5. Provides that if a notarial act regarding an electronic record is performed by a notarial officer and the certificate is signed by the officer, identifies the jurisdiction of the notarial act and contains the notarial officer’s title, the notarial officer's official seal may be attached to or logically associated with the certificate.
  6. Clarifies that they party drafting a record that is the subject of a notarial act is responsible for the form of the certificate, its wording and legal sufficiency.
  7. Clarifies that a Notary is not required to draft, edit or amend a certificate where the record presented does not contain an acceptable certificate, and instead, the Notary must refuse to perform the notarial act with respect to the record.
  8. Provides that a certificate of a notarial act is sufficient if it meets the general requirements related to notarial certificates and it (a) is in a form otherwise permitted by the law of Mississippi, (b) is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed, or (c) sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the notarial act as provided in Sections 4 (authorized notarial acts), 5 (fees for notarial acts, 6 (identification required for certain notarial acts) and 7 (personal appearance for acknowledgments, verifications and signature witnessings) of the Act or any law of this state other than the Act.
  9. Adds new “short-form” notarial certificate forms.
  10. Updates that “long-form” notarial certificate forms in MCA 89-3-7.
  11. Provides that be executing a certificate of a notarial act, a notarial officer certifies to having complied with the requirements and made the determinations specified in Sections 4 (authorized notarial acts), 5 (fees for notarial acts, 6 (identification required for certain notarial acts) and 7 (personal appearance for acknowledgments, verifications and signature witnessings) of the Act.
  12. Prohibits a notarial officer from affixing the officer's signature to, or logically associate it with, a certificate until the notarial act has been performed.
  13. Requires that if a notarial act is performed regarding a tangible record, a certificate must be part of, or securely attached to, the record.
  14. Requires that if a notarial act is performed regarding an electronic record, the certificate must be affixed to, or logically associated with, the electronic record.
  15. Provides that if the Secretary of State has established standards under Section 20 of the Act for attaching, affixing or logically associating the certificate, the process must conform to those standards.
  16. Provides that the signature of a notarial officer certifying a notarial act may not be deemed evidence to show that the notarial officer had knowledge of the contents of the record so signed, other than those specific contents which constitute the signature, execution, acknowledgment, oath, affirmation, affidavit, verification or other act which the signature of that notarial officer chronicles.

Official Seal; Stamping Device

  1. Requires the official seal of a Notary to (a) include the Notary's name, jurisdiction, commission expiration date and other information required by the Secretary of State; and (b) be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated.
  2. Provides that the board of supervisors of every county must provide an official seal, with the inscription "Notary Public" around the margin and the image of an eagle in the center, which official seal must be kept in the office of the clerk of the circuit court.
  3. Authorizes, but does not require, a judge, chancellor, clerk or deputy clerk of a court of Mississippi, the Mississippi Secretary of State or an Assistant Secretary of State to use the official seal to perform a notarial act under Section 10(1)(b) or (c) of the Act.
  4. Provides that upon 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 official seal or stamping device must destroy or deface, as soon as reasonably practicable, all official seals of the Notary so that they may not be misused.
  5. Provides that if a Notary's stamping device is lost or stolen, the Notary or the Notary's personal representative or guardian must notify promptly the Secretary of State upon discovery that the device is lost or stolen.

Notary Journal

  1. Allows a Notary to maintain only 1 journal at a time to chronicle all notarial acts, whether those notarial acts are performed regarding tangible or electronic records.
  2. Requires a journal to be created on a tangible or electronic medium.
  3. Provides that if the journal is tangible, it must be a permanent, bound register with numbered pages.
  4. Provides that an electronic journal must conform to specifications set forth in rules by the Secretary of State.
  5. Requires an entry in a journal to be made contemporaneously with performance of the notarial act.

Notarization of Electronic Records

  1. Authorizes a Notary to perform a notarial act with respect to electronic records.
  2. Clarifies that the Secretary of State has the sole power to determine the methods by which notarial acts with respect to electronic records may be implemented in Mississippi, and that the methods must be set forth in rules promulgated by the Secretary.
  3. Requires a Notary seeking to perform notarial acts with respect to electronic records to file an additional registration with the Secretary of State subsequent to being granted a Notary commission.

Recognition of Notarial Acts

  1. Provides that notarial act may be performed in Mississippi by (a) a Notary Public of Mississippi; (b) an elected judge, a clerk or deputy clerk of a court of this state; or (c) the Mississippi Secretary of State or a Mississippi Assistant Secretary of State and further provides that the signature and title of an individual performing a notarial act in Mississippi are prima facie evidence that the signature is genuine and that the individual holds the designated title and that the signature and title of a notarial officer conclusively establish the authority of the officer to perform the notarial act.
  2. Provides that a notarial act performed in another state has the same effect under the law of this state as if performed by a notarial officer of Mississippi, if the act performed in that state is performed by: (a) a Notary Public of that state, (b) a judge, a clerk or a deputy clerk of a court of that state, or (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 is prima facie evidence that the signature is genuine and that the individual holds the designated title, and that the signature and title of a Notary Public, a judge, a clerk or a deputy clerk of court of the other state conclusively establish the authority of the officer to perform the notarial act.
  3. Provides that a notarial act performed under the authority and in the jurisdiction of a federally recognized Indian tribe has the same effect under the laws of Mississippi as if performed by a notarial officer of Mississippi, if the act performed in the jurisdiction of the tribe is performed by: (a) a Notary Public authorized by the tribe; (b) a judge, a clerk or a deputy clerk of a court of that tribe; or (c) 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 is prima facie evidence that the signature is genuine and that the individual holds the designated title, and that the signature and title of a Notary Public, a judge, a clerk or a deputy clerk of court of the tribe conclusively establish the authority of the officer to perform the notarial act.
  4. Provides that a notarial act performed under federal law has the same effect under the laws of Mississippi as if performed by a notarial officer of Mississippi, if the act performed under federal law is performed by: (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 notarizing officer by the United States Department of State for performing notarial acts overseas; or (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 that the signature and title of an officer described in (a), (b) or (c) conclusively establish the authority of the 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, the act has the same effect under the law of Mississippi as though performed by a notarial officer of Mississippi.
  6. Provides that 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 established conclusively, and that the signature and official seal of the individual 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 a 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.

Validity of Notarial Acts; Transition Provisions

  1. Provides that except as otherwise provided in Section 4(2) of the Act, the failure of a notarial officer to perform a duty or meet a requirement specified in the Act does not invalidate a notarial act performed by the notarial officer.
  2. Provides that the validity of a notarial act under the Act 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 on the laws of Mississippi other than the Act or the laws of the United States.
  3. Clarifies that the validation of notarial act under the Act does not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts.
  4. Clarifies that the new chapter does not affect the validity or effect of a notarial act performed before July 1, 2021.
  5. Authorizes the Secretary of State to adopt any rules necessary to implement this chapter after complying with the Mississippi Administrative Procedures Law.
  6. Clarifies that a commission as a Notary Public in effect on July 1, 2021, continues until its date of expiration.
  7. Provides that a Notary who applies to renew a Notary commission on or after July 1, 2021, is subject to and must comply with the Act.
  8. Provides that a Notary Public must comply with the Act when performing a notarial act after July 1, 2021.
Analysis:

Mississippi becomes the latest state to enact substantive provisions from the Uniform Law Commission’s Revised Uniform Law on Notarial Acts (RULONA). The Mississippi enactment covers the portions of RULONA related to paper and electronic notarial acts only, and leaves for another day the provisions for notarizing records for remotely located individuals. House Bill 1156 brings over many requirements in existing law, such as the duty to keep a journal of notarial acts, criminal provisions, seal and commission-related laws. As with most RULONA enactments, the Secretary of State is given authority to adopt rules to implement the Act. The Mississippi Administrative Code contains lengthy existing rules. The Secretary of State has until July 2021 to write any rules needed to clarify the enacted RULONA.

Read the bill text.

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