ND House Bill 1136

Legislation

State: North Dakota
Signed: April 18, 2011

Effective: August 01, 2011
Chapter: 334

Summary

North Dakota becomes the first state to enact the Revised Uniform Law on Notarial Acts (RULONA) published by the National Conference of Commissioners on Uniform State Laws (NCCUSL). HB 1136 repeals prior Chapter 44-06 and several other sections containing rules pertaining to Notaries and replaces them with many of RULONA’s provisions. While the NNA is supportive of the many provisions of the RULONA adopted in this legislation, unfortunately, the journal, education and examination requirements contained in the introduced version of the bill were removed by the House of Representatives.

Affects

Adds Chapter 44-06.1 to, amends and reenacts Sections 10-19.1-84, 44-05-01, 44-08-06, and 47-19-18 in, and repeals Chapter 44-06 and Sections 47-19-14.1, 47-19-14.2, 47-19-14.3, 47-19-14.4, 47-19-14.5, 47-19-14.6, 47-19-14.7, and 47-19-14.8 of the North Dakota Century Code.

Changes

Definitions

Adds new definitions for the following terms used in the Act: “acknowledgment,” electronic,” “electronic signature,” “foreign state” (see Section 44-06.1-13), “in a representative capacity,” “notarial act” “notarial officer,” “notary public,” “official stamp,” “person,” “record,” “sign,” “signature,” “stamping device,” and “verification on oath or affirmation.”
Adopts the Uniform Electronic Transactions Act (UETA) definitions of “electronic,” “electronic signature” and “record.”
Adopts the Uniform Commercial Code Section 2 definition of “sign.”
Clarifies that a “notarial officer” means a Notary Public or other individual authorized to perform a notarial act while a “notary public” means an individual commissioned to perform a notarial act by the commissioning official.
Clarifies that “official stamp” means the physical image affixed to a tangible record or an electronic image attached to or logically associated with an electronic record, and that “stamping device” means the tool which creates the physical or electronic image.
Uses the term “record” to refer either to information that is inscribed on a tangible medium (e.g., a paper document) or that is stored in an electronic or other medium and is retrievable in perceivable form.

Notary Commission; Notification to Perform Notarial Acts on Electronic Records

Prescribes that a Notary commission applicant must: (a) be at least 18 years of age; (b) be a citizen or legal resident of the U.S.; (c) be a resident of or have a place of employment or practice in the state or must reside in a county that borders North Dakota; (d) be able to read and write English; and (e) not be disqualified to receive a commission by any of the grounds authorizing the commissioning official to refuse to grant a commission (see “Prohibited Acts; Grounds for Refusal, Denial, Renewal, Suspension, Revocation and Conditioning Commission of a Notary” below). (Note: The term of a commission – 6 years – and the fee for a commission -- $36 – remains the same.)
Requires an applicant for a Notary Public commission to submit to the commissioning official an “assurance” (either a surety bond or its functional equivalent, such as a letter of credit) in the amount of $7,500. (Note: the amount of the “assurance” remains at its current level.)
States that the assurance must cover acts performed during the commission term of the Notary and must be in the form prescribed by the commissioning official.
Requires a surety or issuing entity of the assurance to provide notification to the commissioning official within 30 days before canceling the assurance and after paying out a claim on the assurance.
Clarifies that a Notary commission does not provide a Notary any immunities or benefits conferred by law on public officials or employees.
Requires a Notary to notify the commissioning official of the Notary’s capability and intent to perform electronic notarizations prior to performing electronic notarizations and state the technology or technologies the Notary will use to notarize electronic signatures.

Authority to Perform or Refuse to Perform Notarial Acts

Provides statutory authority for a Notary to perform a copy certification and signature witnessing. (Note: prior authorization for copy certifications was conveyed through guideline on the Secretary of State’s Web site.)
Authorizes a notarial officer to refuse to perform a notarial act except as prohibited by law other than the provisions of Chapter 44 of the NDCC.
Permits a notarial officer to refuse to perform a notarial act if the officer is not satisfied that the principal signer is competent or has the capacity to execute the record; or that the individual’s signature is knowingly and voluntarily made.

Appearance and Identification of Signer; Signature of Person Unable to Sign

Requires a signer of a record (which includes an eNotarization by definition) to personally appear before the notarial officer at the time of notarization for an acknowledgment or verification on oath or affirmation. The Act does not require an individual requesting a copy certification to appear before the notarial officer.
States that a notarial officer has personal knowledge of the identity of a signer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
States that a notarial officer has satisfactory evidence of the identity of an individual if the individual: (a) presents a passport, driver’s license or government-issued non-driver ID card that is current or not expired by more than 3 years; (b) presents another form of government ID that contains the individual’s signature or photograph and is currently valid or not expired by more than 3 years; or (c) brings a credible witness personally known to the individual who presents a form of ID listed in subsection (a) or (b) above and who verifies under oath or affirmation that the witness knows the individual.
Authorizes the notarial officer to require an individual to provide additional information or identification credentials to assure the officer that the individual has the identity claimed.
Permits an individual who is physically unable to sign a record to direct an individual other than the notarial officer to sign the individual’s name on the record and requires the officer to insert the following or substantially similar words, “Signature affixed by (insert name of other individual) at the direction of (insert name of individual).”

Certificate of Notarial Act

Requires a notarial certificate to be executed contemporaneously with the performance of the notarial act, signed by a Notary with the Notary’s signature in the same manner as on file with the Secretary of State and completed with the name of the jurisdiction in which the notarial act is performed and the expiration date of the Notary’s commission, if the officer is a Notary.
Clarifies that the text of a notarial certificate is sufficient if it: (a) is in a short form set forth in NDCC 44-06.1-19; (b) is in a form otherwise permitted by North Dakota law; (c) is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed; or (d) sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of NDCC 44-06.1-04, 44.6.1-05 and 44-06.1-06 or other law.
Prohibits a notarial officer from signing a notarial certificate on a tangible or electronic record until the notarial act has been performed.
States that a notarial certificate must be affixed to, or logically associated with, the electronic record according to any standards established by the Secretary of State, if standards have been published.
Clarifies that by executing a certificate of a notarial act, a notarial officer has complied with the requirements and made the following determinations: (a) the signer has appeared in the presence of the officer for the notarial act; (b) the officer has identified the signer using personal knowledge or satisfactory evidence; and (c) the officer has satisfied the specific requirements for an acknowledgment, verification upon oath or affirmation, signature witnessing, copy certification or protest in NDCC Sections 44-06.1-05.

Official Stamp; Stamping Device

Requires the Notary to affix the Notary’s official stamp on the notarial certificate of a tangible record.
Permits, but does not require, a notarial officer other than a Notary Public to affix an official stamp on the notarial certificate of a tangible record if the certificate contains the signature of the officer, date of notarization, jurisdiction where the notarial act was performed and the title of the notarial officer.
Permits, but does not require, an official stamp to be attached to or logically associated with the notarial certificate on an electronic record if the certificate contains the signature of the Notary, date of notarization, jurisdiction where the notarial act was performed and the title of the notarial officer.
Requires a Notary to affix the Notary’s seal to each verification on oath or affirmation or acknowledgment at the time of performing the notarial act.
Prescribes that the Notary’s official seal must be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated.
Prescribes the elements for the Notary’s official stamp: (a) the name of the Notary; (b) the jurisdiction of the Notary; (c) the Notary’s commission expiration date; (d) and any other information required by the Secretary of State.
Clarifies that a Notary is responsible for the security of the Notary’s stamping device and may not allow another person to use the device to perform a notarial act.
Requires the Notary to disable the stamping device by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable upon resignation or expiration of the Notary’s commission or upon expiration of the date set forth in the stamping device.
Requires the Notary’s personal representative or any other person knowingly in possession of the stamping device to disable the stamping device by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable upon the death or adjudication of incompetency of a Notary or former Notary.
Clarifies that the Notary’s stamping device is the property of the Notary only and may not be retained or used by any person, including an employer, even if the employer purchased the device.
Requires a Notary to keep the stamping device in the Notary’s direct and exclusive control at all times during the Notary’s commission.
Requires a Notary or Notary’s personal representative to notify the Secretary of State promptly if the Notary’s stamping device is lost or stolen.

Notarial Acts on Electronic Records

Requires any technology used by a Notary to perform a notarization on an electronic record to be tamper-evident.
Permits a Notary to use one or more tamper-evident technologies to perform notarial acts on electronic records.
Prohibits any person from requiring a Notary to perform a notarial act with respect to an electronic record with a technology the Notary has not selected.
Clarifies that any technology the Notary intends to use to perform notarial acts on electronic records must comply with any standards established by the Secretary of State, if the Secretary has established standards.
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 Notary’s first notarial act on an electronic record.
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 which indicates whether a Notary has notified the Secretary that the Notary will be performing notarial acts on electronic records.

Prohibited Acts; Grounds for Refusal, Denial, Renewal, Suspension, Revocation and Conditioning Commission of a Notary

States that a commission to perform notarial acts does not allow an individual to (a) assist persons in drafting legal records, give legal advice or otherwise practice law; (b) act as an immigration consultant or expert; (c) represent a person in a judicial or administrative proceeding relating to immigration to the U.S. or U.S. citizenship; or (d) receive compensation for performing any of the activities listed above.
Prohibits a Notary from engaging in false or deceptive advertising.
Prohibits a Notary, other than an attorney licensed to practice law, to use the term “notario” or “notario publico.”
Prohibits a Notary, other than an attorney licensed to practice law, from representing or advertising that the Notary may assist persons in drafting legal records, give legal advice or otherwise practice law.
Prohibits a Notary from notarizing in a transaction if the Notary or Notary’s spouse has a direct beneficial interest.
Declares that a notarial act performed by a Notary or the Notary’s spouse or in which either individual appears as a signatory to a petition within the meaning of NDCC Section 1-01-50 (related to an election petition) is voidable.
Prohibits a Notary from withholding access to or possession of any original record provided by a person that requests performance of a notarial act.
Requires a Notary who is not an attorney and who in any manner advertises or represents that the Notary offers notarial services, whether orally or in a record, including broadcast or print media, and the Internet, to include the following statement or an alternative statement authorized by the Secretary of State in the advertisement or representation, prominently and in each language used in the advertisement or representation: “I am not an attorney license to practice law in this state. I am not allowed to draft legal records, give advice on legal matters, including immigration, nor charge a fee in regard to those activities.” If the form of advertisement or representation is not broadcast and print media, or the Internet, and does not permit the inclusion of the statement due to size, the statement must be prominently displayed or provided at the place of performance of the notarial act before the act is performed.
Permits the Secretary of State to deny, or refuse to renew a commission of a Notary, or revoke, suspend or condition a Notary commission for any act or omission that demonstrates the individual lacks the honesty, competence or reliability to act as a Notary, including: (a) failure to comply with any provision of Chapter 44-6.1; (b) fraudulent, dishonest or deceitful misstatement or omission in an application for a commission; (c) a conviction of any felony or a crime involving fraud, dishonesty or deceit; (d) a finding against, or admission of liability by, the applicant or Notary in any legal proceeding or disciplinary action based on the applicant’s or Notary’s fraud, dishonesty or deceit; (e) failure by a Notary to discharge any duty or responsibility required of a notarial officer, whether by a provision of Chapter 44-6.1, rules of the Secretary or any state or federal law; (f) the use of false or misleading advertising or representations by the Notary that the Notary has duties, rights or privileges that a Notary does not possess; (f) violation of a rule promulgated by the Secretary regarding Notaries; (g) denial, refusal to renew, revocation, suspension or conditioning of a Notary commission in another state, (h) and failure to maintain an assurance (bond or its functional equivalent).
Clarifies that an administrative action taken against the commission of a Notary does not prevent an aggrieved person from seeking and obtaining other remedies provided by law, whether criminal or civil.

Recognition of Notarial Acts

Authorizes notarial acts to be performed in North Dakota by: (a) a Notary; (b) a judge, clerk or deputy clerk of any court; and (c) any other individual authorized to perform the specific act by the law of North Dakota.
Clarifies that the signature and title of an individual performing a notarial act in North Dakota are prima facie evidence that the signature is genuine and that the individual holds the designated title.
Clarifies that the signature and title of the individual named in Number 21 (a) and (b) above performing a notarial act within North Dakota conclusively establishes the authority of the officer to perform a notarial act.
Declares that a notarial act performed in another state has the same effect under North Dakota law as if performed by a North Dakota notarial officer if the act is performed by: (a) a Notary; (b) a judge, clerk or deputy clerk of a court of that state; or (c) any other individual authorized to perform the specific act by the law of the state.
Clarifies 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.
Clarifies that the signature and title of the individual named in Number 24 (a) and (b) above performing a notarial act within North Dakota conclusively establishes the authority of the officer to perform a notarial act.
Declares that a notarial act performed by an individual under the authority and in the jurisdiction of a federally recognized American Indian tribe has the same effect under North Dakota law as if performed by a North Dakota notarial officer if the act is performed by: (a) a Notary of the tribe; (b) a judge, clerk or deputy clerk of a court of that tribe; or (c) any other individual authorized to perform the specific act by the law of the tribe.
Clarifies that the signature and title of an individual performing a notarial act under the authority and in the jurisdiction of a federally recognized American Indian tribe are prima facie evidence that the signature is genuine and that the individual holds the designated title.
Clarifies that the signature and title of the individual named in Number 27 (a) and (b) above performing a notarial act within North Dakota conclusively establishes the authority of the officer to perform a notarial act.
Declares that a notarial act performed under federal law has the same effect under North Dakota law as if performed by a North Dakota notarial officer if the act is performed by: (a) a judge, clerk or deputy clerk of a court of that state; (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 U.S. Dept. of State for performing notarial acts overseas; or (d) any other individual authorized to perform the specific act by the law of the state.
Provides that a notarial act performed under authority and in the jurisdiction of a foreign state or constituent unit of the foreign state, or multinational or international government organization has the same effect under North Dakota law as if performed by a North Dakota notarial officer.
Provides that the authority of an officer to perform notarial acts is conclusively established if the title of office and indication of authority to perform notarial acts in a foreign state appear in a digest of foreign law or in a list customarily used as a source for that information.
Clarifies that the signature and official stamp of an individual holding an office described in Number 32 above are prima facie evidence that the signature is genuine and that the individual holds the designated title.
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 the notarial officer is genuine and that the officer holds the indicated title.
Provides that a consular authentication issued by an individual designated by the U.S. Dept. 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 title.

Validity of Notarial Acts

Clarifies that the failure of a notarial officer to perform the duties or meet the requirements specified in Chapter 44-6.1 does not invalidate a notarial act performed by the officer, that the validity of a notarial act under Chapter 44-6.1 does not prevent an aggrieved person form seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based upon other law; and that Chapter 44-6.1 does not validate a purported notarial act performed by an individual who does not have the authority to perform the act.
Clarifies that the provisions of Chapter 44-6.1 do not affect the validity and effect of a notarial act performed before the effective date of the Act.

Other Provisions

Clarifies that a commission as a Notary in effect on the effective date of the Act continues until its date of expiration; that a Notary who applies to renew a commission after the effective date of the Act shall comply with the provisions of Chapter 44-6.1; and that a Notary who does not comply with the provisions of Chapter 44-6.1 after the effective date of the Act is subject to refusal, revocation or suspension of a commission.
Clarifies that the RULONA modifies, limits and supersedes the federal E-SIGN Act, but does not modify, limit or supersede Section 101(c) of E-SIGN or authorize electronic delivery of any of the notices described in Section 103(b) of E-SIGN.

Rules

Permits the Secretary of State to adopt rules to implement Chapter 44-6.1 that: (a) prescribe the manner of performing notarial acts on tangible and electronic records; (b) ensure that any change to or tampering with a record bearing notarial certificate is self-evident; and (c) ensure the integrity in the creation, transmittal, storage or authentication of electronic records or signatures.
Stipulates that in adopting rules regarding the performance of notarial acts with respect to electronic records, the rules may not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification.

Repealed Provisions

Repeals North Dakota’s Uniform Recognition of Acknowledgments Act, including the short-form acknowledgment certificates prescribed for use under the Act.
While the Act does not repeal the authority of a Notary to perform a protest, the Act repeals former sections 44-06-06, 44-06-07 and 44-06-08 which provide requirements for protesting commercial paper, serving notice, and retaining and certifying copies of records of notices.
Repeals former section 44-06-09 which requires the Secretary of State to receive and keep safely all the records and papers directed by repealed Chapter 44-06, and to provide certified copies when required.

Analysis

North Dakota becomes the first state to enact substantive provisions of the Revised Uniform Law on Notarial Acts (RULONA). After a two-year drafting process, the RULONA was approved by the National Conference of Commissioners on Uniform State Laws on July 15, 2010.

The RULONA was undertaken for a number of reasons: first, the 1982 ULONA was long overdue for a revision; second, the scope of the ULONA was very narrow and NCCUSL wanted to broaden the scope of the Act to include ethical standards for Notaries, commissioning, and mandatory education and testing; and finally, with the advent of electronic records, provisions related to the use of electronic technologies to perform notarial acts were needed. Closely related was a concern that the near unanimous adoption of NCCUSL’s Uniform Electronic Transactions Act (UETA) throughout the U.S. was not perceived as providing the legal authorization for Notaries to perform electronic notarial acts. Just as NCCUSL undertook to draft the Uniform Real Property Electronic Recording Act (URPERA) because of the confusion about whether the UETA permitted county recorders to electronically record real property documents, so NCCUSL took on the task of revising the ULONA to dispel the same confusion with respect to Notaries.

House Bill 1136 does not enact the RULONA in its entirety but it does adopt a number of prominent provisions. First, Notaries may refuse to perform a notarial act if the Notary is not satisfied that the signer is competent to sign or has not signed the document voluntarily. Second, Notaries must complete a notarial certificate contemporaneously with the performance of the notarial act and sign a certificate after the notarial act has been completed. Third, effective August 1, 2013, in performing electronic notarial acts, North Dakota Notaries must use a technology that is “tamper-evident,” that is, the technology must be able to visibly show if a record has been changed after the Notary’s signature has been affixed to the electronic record. Fourth, HB 1136 enacts the very strong prohibitions against a Notary engaging in the unauthorized practice of law. Fifth, effective August 1, 2013, the Secretary of State must create and maintain an electronic database of Notaries, particularly those with the capability of performing electronic notarial acts. Sixth, HB 1136 enacts the provision permitting a document signer with a physical limitation to direct someone other than the Notary to sign the document for the disabled signer. Of course, many of these provisions first appeared in the Model Notary Acts of 1984, 2002 and 2010, predating the RULONA.

Nevertheless, the NNA has a few issues with House Bill 1136. First, the journal, education and examination provisions which were in the introduced version of the bill were removed in the House. Second, HB 1136 retains the provision allowing a Notary to provide an “assurance” – meaning a bond or instrument of functional equivalency, such as an irrevocable letter of credit. The idea of a letter of credit is a brand new and untested concept and the drafting committee inserted it at the request of the American Bankers Association. Third, although we recognize that many senior citizens do not have current identification documents, we believe it is an unwise policy to allow an expired identification card to be presented to a Notary. Fourth, we take minor exception to the replacement of the word “seal” with “official stamp,” since the word “seal” has a long history of use in statutes and the state and federal rules of evidence, and the word “seal” more adequately encompasses both a rubber stamp and metal embossing seal. Fifth, we believe the requirement to post a prescribed notice in every advertisement to inform the public that nonattorney Notaries cannot draft legal documents, provide legal advice and counsel on immigration matters goes too far. This provision should have been limited strictly to advertisements in a foreign language, because it is the immigrant community that that has been harmed by so-called “immigration consultants.” As it stands now, this advertising provision will unnecessarily increase the cost for Notaries to advertise their services.

House Bill 1136 repeals the former Uniform Recognition of Acknowledgments Act and former Chapter 44-06. However, many of the current Notary provisions in Chapter 44-06 were brought over into newly created Chapter 44-6.1.

The electronic notarization provisions and requirement for the Secretary of State to provide a database of commissioned Notaries is effective August 1, 2013.

Read House Bill 1136.