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Rule

MT Administrative Rule (2019)

Notary Law Update: MT Administrative Rule (2019)

State: Montana

Summary:

The Montana Secretary of State has adopted new rules and repealed and amended existing rules in order to implement the requirements of House Bill 370, passed by the 2019 Montana Legislature.

Signed:  August 27, 2019

Effective:  September 07, 2019

Chapter: N/A

Affects:

Adds new rule 44.15.110 to, and amends 44.15.101, 44.15.103, 44.15.105, 44.15.106, 44.15.108, and 44.15.109 of the Administrative Rules of Montana.

Changes:

Journal Retention

  1. Requires a Notary to retain a journal at all times while holding an active commission unless the Notary has satisfied the new requirements to transfer control of the journal to the Notary's employer.
  2. Provides that a Notary who transfers control of the journal from the Notary to the Notary's employer must complete the form prescribed by the Secretary of State indicating: (a) the physical location where the journal will be kept; (b) the contact information of the journal custodian; and (c) the Notary's authorization for the custodian to release the records in accordance with existing retention requirements.
  3. Requires the form for transferring control of journals from the Notary to the Notary’s employer to be signed by the Notary and the employer.

Notary Commission Application

  1. Clarifies that a person may apply for a commission by submitting one or more of the required Notary application forms prescribed by the Secretary of State.
  2. Clarifies that the applicant's name must consist of at least one initial and the Notary's surname.
  3. Requires the applicant to provide a work email address in addition to the personal email address already required.
  4. Requires unemployed and self-employed applicants to include an alternate contact person's name, number or email address.
  5. Requires an applicant to indicate whether he or she intends to provide remote online or electronic notarization services, or both, and if so, indicate the system(s) to be used.
  6. Requires an applicant who intends to provide remote or electronic notarization services, or both, to include with the application a copy of a certificate of completion of an approved course and exam.
  7. Requires an applicant to include a sample signature, which must match the applicant's name as entered on the application and the bond, and which must be used on all notarized records.
  8. Modifies the commission application to state whether an applicant meets the residency requirement by being the spouse or legal dependent of military personnel assigned to active duty in Montana.
  9. Modifies the commission application to indicate whether applicant has pled guilty, pled no contest or has been convicted of a felony or crime involving fraud, dishonesty, or deceit in the last 10 years.
  10. Requires an applicant to affirm under oath that the information on the application is true and correct, that the applicant will support and defend the Constitutions of the United States and Montana, and that the applicant will uphold the duties of the office of Notary Public.
  11. Requires all applicants for a Notary commission to submit certification proving the applicant has completed the required education and passed a Notary Public examination approved by the Secretary of State with a score of at least 80% no more than 6 months prior to submitting the application.
  12. Provides that applicants who fail to achieve a passing score after three attempts must wait three months before retaking the exam.

Notary Bond

  1. Requires applicants to submit a 4-year $25,000 bond from an approved bonding company on the form prescribed by the Secretary of State with the application and fee.
  2. Requires bonding companies to notify the Secretary of State within 30 business days if a claim is made against the bond or if the bond is canceled or otherwise not honored.

Request for Certificate of Authority

  1. Clarifies that a person requesting a certificate of authority of a record for a foreign country must submit a $10 non-refundable fee for each certification together with a specific request form prescribed by the Secretary of State.

Change in Information or Status

  1. Requires a Notary to notify the Secretary of State within 30 calendar days of a change in the Notary’s work email address, alternate phone number or contact person, or electronic notarization system or communications technology on a form prescribed by the Secretary.
  2. Clarifies that a Notary who changes the name on file with the Secretary of State must also file an exemplar of the Notary's new official signature.
  3. Changes the number of days by which a Notary must notify the Secretary of State of being convicted of or entering a plea of guilty or no contest to a felony or crime involving fraud, dishonesty, or deceit from 14 to 30 calendar days.
  4. Requires a Notary to notify the Secretary of State within 30 calendar days on a form prescribed by the Secretary if the Notary resigns prior to the commission expiration date, no longer meets the residency requirements for a commission, or if the Notary does not intend to renew the commission.
  5. Requires Notaries who notify the Secretary of State that they will not renew the commission to provide the date on which the resignation is effective, the location where the journals are to be stored, and the Notary's future contact information if different from the information on file with the Secretary.

Remote and Remote Online Notarizations

  1. Makes technical changes to allow existing rules to apply to both remote and remote online notarizations.
  2. Requires a signer located outside the United States at the time of the remote notarization to declare in the recitation for the remote or remote online notarial act that the individual is unaware of any legal conflicts that prohibit the individual's participation in a remote notarization.
  3. No longer requires a credible witness who identifies a principal to be in the physical presence of the Notary.
  4. Requires a credible witness identifying a principal to provide a sworn statement in the recording of the remote or remote online notarization.
  5. Requires the Notary to state the two or more types of technologies used to identify the individual for whom the notarial act is being performed if the Notary used identification technologies to verify the identity of the individual.

Fees for Notarial Acts

  1. Allows a Notary to charge an additional fee for performing a notarial act using an electronic notarization system or communications technology.
  2. Allows a Notary to charge an additional fee to recover the cost of providing a journal entry or audiovisual recording.
Analysis:

The Montana Secretary of State has adopted new and amended rules to implement the requirements of House Bill 370, passed by the legislature earlier this year.

The only new rule, ARM 44.15.110, creates a process allowing a Notary to delegate his or her responsibility as legal custodian of journal records to another individual under certain conditions. This enables the Secretary of State to know the location of a Notary’s journals and to obtain the journals from the Notary’s designated custodian if necessary.  

Rule 44.15.101, pertaining to the Montana Notary Public commission application, has been amended to ensure compliance with the state’s residency, education and exam requirements, as well as the requirement to inform the Secretary of State of an applicant’s intent and qualifications to perform remote and remote online notarizations. In addition to affirming under oath that the information in the Notary Public commission application is true and correct, the amended rule also requires the applicant to affirm under oath that he or she will support and defend the Constitutions of the United States and the State of Montana and uphold the duties of the office of Notary Public.

Since House Bill 370 increased the amount of the Notary bond, rule 44.15.103 was updated to ensure that a Notary has a compliant surety bond in effect for the entire term of the Notary’s commission.

Rule 44.15.105 was amended to clarify that the $10 fee charged for a certification of authority of a record for a foreign country is not an application fee, and that a completed request form prescribed by the Secretary of State must be submitted to the Secretary along with the fee.

Rule 44.15.106 was amended to ensure the Secretary of State is informed of all relevant changes to a Notary’s name, status, and contact information in a timely manner and to ensure that the Notary remains compliant with the qualifications to serve as a Notary.

Amendments to rules 44.15.108 and 44.15.109 were necessary to implement remote and remote online notarization and allow a Notary to recover the additional costs associated with remote notarizations and making copies of journal entries or recordings.

Read the announcement of final rule in the Montana Administrative Register.

Read the new and amended rules.

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