MT Senate Bill 306 | NNA
Law

MT Senate Bill 306

Notary Law Update: MT Senate Bill 306

State: Montana

Summary:

Montana enacts the Revised Uniform Law on Notarial Acts (RULONA) and is the second state to allow some notarizations to be performed using audio-visual technology.

Signed:  May 04, 2015

Effective:  October 01, 2015

Chapter: 391

Affects:

Amends MCA Sections 1-5-601, 1-5-602, 1-5-603, 1-5-604, 1-5-605, 1-5-606, 1-5-607, 1-5-608, 1-5-609, 1-5-610, and 1-5-611; and repeals MCA Sections 1-5-401, 1-5-402, 1-5-403, 1-5-404, 1-5-405, 1-5-406, 1-5-407, 1-5-408, 1-5-409, 1-5-415, 1-5-416, 1-5-417, 1-5-418, 1-5-419, and 1-5-420.

Changes:

General

  1. Defines “electronic,” “electronic signature,” “notary public,” “official stamp,” “person,” record,” “sign”, “signature,” “stamping device,” and “state” from the published version of the Revised Uniform Law on Notarial Acts.

Commissioning

  1. Requires an applicant for a Notary commission to be a citizen or permanent resident of the United States, be a resident or have a place of employment in Montana and be able to read and write English. (Note: Consistent with current rules, an applicant for a commission must also be 18 years of age or older.)
  2. No longer requires an applicant for a Notary commission to have been a resident of Montana for at least 30 days prior to appointment or reappointment.
  3. No longer considers removal from the state as vacating the office of Notary Public.
  4. Requires applicants who do not hold a Montana Notary commission to pass an examination administered by the Secretary of State or an entity approved by the Secretary.
  5. No longer requires first-time applicants for a Notary commission or Notaries whose commissions expired more than 30 days earlier to take a course of study as a requirement to obtain a commission, but requires the Secretary of State or an entity approved by the Secretary to offer regularly a course of study to applicants who do not hold a Notary commission.
  6. No longer requires a Notary against whom a complaint has been filed or the Secretary of State has received evidence of improperly notarized documents notarized by the Notary to take an education course prior to being recommissioned as a Notary.
  7. Clarifies that the course of study offered by the Secretary of State or an entity approved by the Secretary of State must cover the laws, rules, procedures and ethics relevant to notarial acts.
  8. Requires a Notary to obtain a $10,000 “assurance in the form of a surety bond or its functional equivalent.” Prior law allowed only a surety bond.
  9. Requires a surety or issuing entity of the “assurance” to notify the Secretary of State not later than 30 days after making a payment to a claimant under the assurance.
  10. Clarifies that a Notary may perform notarial acts in Montana only during the period that a valid assurance is on file with the Secretary of State.
  11. Requires an applicant to submit the application, bond, and nonrefundable filing fee to the Secretary of state within 30 days before or after the effective date of the surety bond or the expiration of the previous commission. (Note: current law requires these to be submitted within 30 days before or after the effective date of the bond.)
  12. Clarifies that a Notary commission does not provide the Notary any immunity or benefit conferred by the laws of Montana on public officials or employees.

Notarial Acts

  1. Adds certifying or attesting a transcript of an affidavit or deposition as an authorized notarial act, clarifies that in performing this notarial act a notarial officer must certify to the matters set forth by Montana’s Notary laws, other laws, or the court of jurisdiction, and authorizes notarial officers to perform this notarial act only if they are knowledgeable of the applicable legal requirements.
  2. Clarifies that in making an acknowledgment, an individual declares to a notarial officer that the individual has signed the record willingly.
  3. Authorizes a notarial officer to perform a protest of a negotiable instrument only if the officer is knowledgeable of the applicable legal requirements of a protest.

Identification Standards

  1. Provides that a notarial officer has personal knowledge of the identity of an individual appearing before the notarial officer if the individual is personally known to the notarial officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
  2. No longer allows a Notary to identify an individual for a notarial act on the basis of a current identification document or documents with a photograph and signature of the individual.
  3. Allows a notarial officer to accept one of the following identification documents from an individual if it is current or not expired by more than 3 years: a passport, driver's license, or government-issued nondriver identification card, or another form of government identification, which contains the signature or a photograph of the individual and is satisfactory to the notarial officer.
  4. Allows a notarial officer to identify an individual by verification on oath or affirmation of a credible witness personally appearing before the notarial officer whom the notarial officer can identify on the basis of a passport, driver's license, or government-issued nondriver identification card, if it is current or not expired by more than 3 years. (Note: consistent with current law, a credible witness may be identified by the Notary through the Notary’s personal knowledge of the witness.)
  5. Allows a notarial officer to require an individual to provide additional information or identification credentials necessary to assure the notarial officer of the individual’s identity.

Personal Appearance and Appearance by Audio-Video Communication

  1. Provides if a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature must appear physically before the notarial officer or appear before the Notary by real-time, two-way video and audio communication technology.
  2. Authorizes a Montana Notary to perform acknowledgments or verifications on oath or affirmation by means of a real-time, two-way audio-video communication, according to the rules and standards established by the Secretary of State, if: (a) the signer is personally known to the Notary or identified by a credible witness, (b) except for a transaction that is pursuant to a proxy marriage under MCA 40-1-213 or 40-1-301, the signer is a legal resident of Montana; and (c) the transaction involves real property located in Montana, involves personal property titled in Montana; is under the jurisdiction of any Montana court, or is pursuant to a proxy marriage under 40-1-213 or 40-1-301.

Refusal to Notarize

  1. Authorizes a notarial officer to refuse to perform a notarial act if the notarial officer is not satisfied that the individual executing the record is competent or has the capacity to execute the record, or the individual executing the record is not signing knowingly or voluntarily.
  2. Authorizes a notarial officer to refuse to perform a notarial act unless refusal is prohibited by a law other than as provided in the Revised Uniform Law on Notarial Acts.

Notarization of Third Party Signature 

  1. Provides that if an individual intending to sign a record is physically unable to do so, the individual may direct another individual other than the notarial officer to sign the individual's name on the record.
  2. Provides that if a notarial officer notarizes the signature of a third party, the officer must insert the words, "Signature affixed by (name of the other individual) at the direction of (name of individual intending to execute the record)" or words with similar intent.

Notarial Certificates

  1. Requires a notarial certificate to be executed contemporaneously with the performance of the notarial act.
  2. Requires a notarial certificate to be signed by a Notary in the same manner as on file with the Secretary of State.
  3. Requires a notarial certificate signed by a Notary Public to include the Notary’s official stamp (previously, a seal was required to be affixed on notarial certificates for all notarial officers).
  4. Authorizes a notarial officer to correct any information included on or omitted from a notarial certificate signed by the officer, but does not authorize a change or correction to be made to the impression of a notarial seal or stamp.
  5. Amends the statutory “short form” certificates of a notarial act, and adds a new short form certificate for certifying a transcript of a deposition or affidavit.

Official Stamp/Stamping Device

  1. No longer requires a circular/rectangular Notary seal/stamp unit, but now requires the Notary’s official stamp to include the Notary's name, title, city of residence, commission expiration date, or other information required by the Secretary of State, and be affixed with blue or black ink as previously. The new law does not specify the  dimensions of the official stamp.
  2. Clarifies that an official stamp, whether applied to the record physically or electronically, is considered to be a seal for the purposes of admitting a document in court.
  3. Clarifies that an official stamp affixed to a tangible record by a Notary must be part of or securely affixed to the record.
  4. Permits, but does not require, a notarial officer other than a Notary to affix an official stamp to a tangible record if the certificate contains the signature and title of the officer, the date of the notarization, and the jurisdiction in which the notarization is performed.
  5. Requires any notarial officer, including a Notary, to attach or logically associate an  official stamp on an electronic notarial certificate that contains the signature and title of the officer, the date of the notarization, and the jurisdiction in which the notarization is performed.
  6. Requires a Notary or the Notary's personal representative or guardian to promptly notify the Secretary of State on discovering that the stamping device is lost or stolen.

Journal of Notarial Acts

  1. Authorizes a Notary to maintain one or more journals.
  2. Authorizes a journal to be paper or electronic.
  3. Requires a paper journal to be a permanent, bound register designed to deter fraud and an electronic journal to be in a permanent, tamper-evident electronic format that complies with rules adopted by the Secretary of State.
  4. In addition to the journal entries required by existing law, requires a Notary to record the time of the notarial act for each notarial act.
  5. Clarifies that a Notary is not required to obtain the signature of the person requesting a notarial act in the journal when the Notary attests to a transcript of a deposition or performs a copy certification.
  6. Requires a Notary to promptly notify the Secretary of State on discovering that the Notary's journal is lost or stolen.
  7. No longer requires a Notary to transfer possession of the journal or journals to the Secretary of State upon resignation or removal from office, or at the expiration of the Notary’ term if the Notary is not reappointed, but requires a Notary to retain the journal or journals for 10 years after the performance of the last notarial act recorded in the journal, or allows a Notary to transmit the journal or journals to the repository approved by the Secretary of State.
  8. Requires a Notary who uses uses audio-video communication technology to perform a notarial act to keep a copy of the recording of the entire communication and a notation of the identification used for a period of 10 years from the date of the notarization or to transmit the recordings to the repository approved by the Secretary of State.
  9. Provides that a Notary must notify the Secretary of State of the location of the Notary’s journal or journals upon resignation of a commission or if the Notary's commission has been revoked or suspended.
  10. Provides that on 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 Notary's journal or journals must transmit all journals to the Secretary of State. (Note: existing law only requires a Notary’s representative to transfer possession of the journals upon the death of the Notary.)

Fees for Notarial Acts

  1. Raises the fees to $10 from $5 for performing an acknowledgment, verification upon oath or affirmation, signature witnessing, copy certification and transcript certification.
  2. Allows a Notary to charge a travel fee, as provided by rule, if the Notary explains to the person requesting the notarial act that the travel fee is in addition to the statutory maximum fee for the notarial act and is an amount not determined by law, and the requestor agrees in advance to the amount of the travel fee or the fee charged is equal to or less than the standard mileage rate allowed by the Internal Revenue Service.
  3. Requires a Notary who charges fees to post an English-language list of fees the Notary charges for notarial acts.
  4. Allows a public official to collect the fees for notarial acts performed in the course of employment by Notaries who are employed by the public body.
  5. Provides that a Notary employed by a private entity may enter into an agreement with the entity under which fees collected by the notary public under this section are collected by and accrue to the entity. 

Notarization of Electronic Records

  1. Allows a Notary to select one or more tamper-evident technologies to perform notarial acts with respect to electronic records, and does not allow a person to require a Notary to perform a notarial act with respect to an electronic record with a technology that the Notary has not selected.
  2. Requires a Notary to notify the Secretary of State that the Notary will be performing notarial acts with respect to electronic records and identify the technology the Notary intends to use prior to performing the initial notarial act.
  3. Provides that if the Secretary of State has established by rule the standards for the technology identified by the Notary with which the Notary will perform notarizations regarding electronic records, the technology must comply with the standards.
  4. Provides that if the technology identified by the Notary with which the Notary will perform notarizations regarding electronic records complies with the standards, the Secretary of State must approve the use of the technology.

Grounds for Commission Denial, Revocation, Suspension and Conditioning

  1. Repeals the former provision authorizing the Secretary of State upon 10 days’ notice to revoke the commission of any Notary for just cause.
  2. Allows the Secretary of State to deny, refuse to renew, revoke, suspend, or impose a condition on a commission as a Notary for any act or omission that demonstrates the individual lacks the honesty, integrity, competence, or reliability to act as a Notary.
  3. Names the following as grounds for the Secretary to deny, refuse to renew, revoke, suspend, or impose a condition on a commission as a Notary: (a) failure to comply with the provisions of the Revised Uniform Law on Notarial Acts; (b) a fraudulent, dishonest, or deceitful misstatement or omission in the commission application; (c) pending release from supervision, a conviction of the applicant or Notary of any felony or crime involving fraud, dishonesty, or deceit, although conviction of a criminal offense is not a complete bar to receiving a commission if the individual's full rights have been restored; (d) admission by the applicant or Notary or a finding in any legal proceeding or disciplinary action of the applicant's or Notary's fraud, dishonesty, or deceit; (e) failure by the Notary to discharge any duty required of a Notary, whether the provisions of the Revised Uniform Law on Notarial Acts, rules of the Secretary of State, or any state or federal law; (f) use of false or misleading advertising or representation by the Notary 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; (h) denial, refusal to renew, revocation, suspension, or conditioning of a Notary commission in another state; and (i) failure of the Notary to maintain an assurance.
  4. Provides that if the Secretary of State denies, refuses to renew, revokes, suspends, or imposes a condition on a commission as a Notary, the applicant or Notary is entitled to timely notice and hearing in accordance with the Montana Administrative Procedure Act.
  5. Clarifies that the authority of the Secretary of State to deny, refuse to renew, revoke, suspend, or impose a condition on a Notary commission does not prevent an individual from seeking and obtaining other criminal or civil remedies provided by law.

Prohibited Acts

  1. Prohibits a Notary from: (a) notarizing the Notary's own signature; (b) notarizing a record in which the Notary is individually named or from which the Notary will directly benefit by a transaction involving the record, including as provided in #2 below; (c) certifying a copy of a record issued by a public entity, such as a birth, death, or marriage certificate, a court record, or a school transcript unless the Notary is employed by the entity issuing or holding the original version of the record; (d) engaging in false or deceptive advertising; (e) advertising or representing that the Notary, unless also licensed as an attorney in Montana, is able to assist persons in drafting legal records, give legal advice, or otherwise practice law; (f) except as otherwise allowed by law, withholding access to or retaining possession of an original record provided by a person that seeks performance of a notarial act by the Notary; or (g) unless the Notary is an attorney licensed to practice law in Montana, using the term "notario" or "notario publico".
  2. Prohibits a Notary who is a partner, stockholder, director, officer, or employee of a partnership or corporation and is individually named in the record or who signs a record as a representative of that partnership or corporation from notarizing the signature of any individual on that record.
  3. Clarifies that a Notary commission 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 or United States citizenship or related matters; or (d) receive compensation for performing any of the activities listed above.

Advertising Requirements

  1. Requires a Notary who is not an attorney licensed to practice law in Montana to provide in advertising or other representations regarding an offering of notarial services, whether orally or written, used in broadcast media, print media, or on the Internet the following statement as provided below or an alternate statement authorized or required by the Secretary of State: "I am not an attorney licensed to practice law in this state. I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities."
  2. Clarifies that the statement in #1 above must be prominently displayed and in each language used in the advertisement or representation.
  3. Clarifies that if the form of advertisement or representation is not broadcast media, print media, or the Internet and does not permit inclusion of the statement in #1 above because of its size, the statement must be displayed prominently or provided at the place of performance of the notarial act before the notarial act is performed.

Recognition of Notarial Acts

  1. Recognizes the notarial acts performed under the authority and in the jurisdiction of a federally recognized Indian tribe as having the same effect as if performed by a Montana notarial officer if the notarial act is performed by a Notary Public of the tribe, a judge, clerk or deputy clerk of a court of the the tribe, or any other individual authorized by the law of the tribe to perform notarial acts.
  2. Clarifies that the signature and title of an individual performing a notarial act under the authority and in the jurisdiction of a federally recognized Indian tribe are prima facie evidence that the signature is genuine and that the individual holds the designated title.
  3. Clarifies that the signature and title of any individual performing a notarial act under authorization by federal law conclusively establish the authority of the officer to perform a notarial act.
  4. Clarifies that a notarial act performed under the authority of and in the jurisdiction of a foreign state or a constituent unit of the foreign state or under the authority of a multinational or international governmental organization has the same effect under Montana law as if performed by a notarial officer of Montana, but no longer names the specific officers of the foreign state or multinational or international government who must perform the act.
  5. Clarifies that the signature and official stamp of an individual performing a notarial act under the authority of and in the jurisdiction of a foreign state or a constituent unit of the foreign state or under the authority of a multinational or international governmental organization and appearing in a digest of foreign law or in a list customarily used as a source for that information are prima facie evidence that the signature is genuine and that the individual holds the designated title.

Reciprocity

  1. Clarifies that a Montana Notary Public commission authorizes a Notary to  perform notarial acts in any state bordering Montana if the border state recognizes the Notary’s authority within that state. (Note: existing law allows any “notarial officer” to perform notarial acts in the bordering state, but the new law only allows Notaries to do this.)

Validity of Notarial Acts

  1. Clarifies that a failure by a notarial officer to perform a duty or meet a requirement under the Revised Uniform Law on Notarial Acts does not invalidate a notarial act performed by the officer. 
  2. Clarifies that the validity of a notarial act under the Revised Uniform Law on Notarial Acts 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 this state, other than this part, or the laws of the United States. This section does not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts.

Database of Notaries Public

  1. 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 whether the Notary has notified the Secretary that the Notary will be performing notarial acts on electronic records.

Administrative Rules

  1. Permits the Secretary of State to adopt rules to implement the Revised Uniform Law on Notarial Acts.
  2. Clarifies that any rules adopted by the Secretary of State regarding the performance of notarial acts with respect to electronic records or two-way audio-video communications may not require or accord legal status or effect to the implementation or application of a specific technology or technical specification.
  3. Provides that rules adopted by the Secretary of State 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 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; and (g) provide for the administration of the examination and the course of study.
  4. Requires the Secretary of state to consider the following in adopting, amending, or repealing rules about notarial acts with respect to electronic records: (a) the most recent standards regarding electronic records promulgated by national bodies, such as the National Association of Secretaries of State; (b) the standards, practices, and customs of other jurisdictions that substantially implement the provisions of this part; and (c) the views of governmental officials and entities as well as other interested persons.

Applicability

  1. Provides that the act applies to notarial acts performed on or after October 1, 2015, and to the duties of and applications to be a Notary or to renew a Notary commission on or after October 1, 2015. 
  2. Clarifies that the commission of a Notary in effect on October 1, 2015, remains in effect until the commission's date of expiration.
  3. Clarifies that the act does not affect rights and duties related to notarial acts that matured, penalties that were incurred, or proceedings that were begun before October 1, 2015.

Repealed Provisions

  1. Repeals MCA 1-5-401. Appointment.
  2. Repeals MCA 1-5-402. Qualifications -- training -- residence.
  3. Repeals MCA 1-5-403. Term of office -- limit on commissions.
  4. Repeals MCA 1-5-404. Penalties -- revocation of commission -- prosecution for violation of law.
  5. Repeals MCA 1-5-405. Bond and commission -- dates -- fees and documents.
  6. Repeals MCA 1-5-406. Liabilities on official bond.
  7. Repeals MCA 1-5-407. Certifying official character of notary.
  8. Repeals MCA 1-5-408. Fees for filing or amending commission and issuing certificates.
  9. Repeals MCA 1-5-409. Information to be filed -- amendments to commission.
  10. Repeals MCA 1-5-415. Jurisdiction.
  11. Repeals MCA 1-5-416. Powers and duties.
  12. Repeals MCA 1-5-417. Authority of notaries who are stockholders, officers, or employees of banks or other corporations.
  13. Repeals MCA 1-5-418. Maximum fees of notaries.
  14. Repeals MCA 1-5-419. Transfer of records upon termination of office.
  15. Repeals MCA 1-5-420. Powers and duties of secretary of state when records deposited.
Analysis:

Montana becomes the sixth state to enact the Revised Uniform Law on Notarial Acts. Montana’s enactment adopts many of the key RULONA provisions, and adds some provisions not in the version of the RULONA adopted by the Uniform Law Commission. Most notably, Montana will allow Notaries to perform any acknowledgment or verification upon oath or affirmation -- paper or electronic -- by allowing the signer to appear via audio and video technology. Thus, Montana joins Virginia in allowing for such “webcam” notarizations, but its rules are both more lenient and strict than Virginia. Unlike Virginia, Montana allows a paper or electronic notarization to be acknowledged or sworn to via audio-video technology, whereas Virginia requires the notarization to be electronic. Also unlike Virginia, Montana requires the signer to personally know the Notary or be identified to the Notary through a credible witness. Virginia allows the signer to be identified through additional forms of “antecedent knowledge” such as knowledge-based authentication questions. Also unlike Virginia, except for one specific type of transaction, the new law requires the signer to be a legal Montana resident. Finally, unlike Virginia, notarizations performed using audio-video technology are limited in scope to the transactions specifically named in the statute.

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