OR House Bill 2834 | NNA
Law

OR House Bill 2834

Notary Law Update: OR House Bill 2834

State: Oregon

Summary:

Oregon becomes the third state to enact the Revised Uniform Law on Notarial Acts (RULONA). HB 2834 comprehensively rewrites all of Oregon’s Notary Statutes, pulling in existing law and supplementing it with the new RULONA provisions.

Signed:  May 23, 2013

Effective:  September 01, 2013

Chapter: 219

Affects:

Adds as yet uncodified sections to the Oregon Revised Statutes; amends Sections 73.0505, 132.320, 177.065, 194.980, 194.985, 194.990 and 205.320; and repeals Sections 194.005, 194.010, 194.012, 194.014, 194.020, 194.022, 194.024, 194.028, 194.031, 194.040, 194.043, 194.047, 194.052, 194.063, 194.070, 194.090, 194.100, 194.130,194.150, 194.152, 194.154, 194.156, 194.158, 194.162, 194.164, 194.166, 194.168, 194.200, 194.330, 194.335, 194.505, 194.515, 194.525, 194.535, 194.545, 194.555,194.558, 194.565, 194.575, 194.578, 194.582, 194.585, 194.595 and 194.700

Changes:
Definitions
  1. Adds a new definition of “Clerk of a court of this state” and “Judge” (Sec. 2[2] and [7]).
  2. Adopts the Uniform Electronic Transactions Act (UETA) definitions of “Electronic,” “Electronic Signature” and “Record” (Sec. 2[4], [5] and [14]).
  3. Adds a new definition of “Person” (Sec. 2[3]).
  4. Adds new definitions of “Sign” and “Signature” (Sec. 2[15] and [16]).
  5. 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 Secretary of State (Sec. 2[9] and [10]).
  6. Clarifies that “Official stamp” means the physical image affixed to on a tangible record or an electronic image attached to or logically associated with an electronic record, and that “Stamping device” means the tool that creates the physical or electronic image (Sec. 2[12] and [17]).
  7. Defines “State” (Sec. 2[18]).
Authority to Perform or Refuse to Perform Notarial Acts
  1. Prohibits a notarial officer from performing a notarial act if the officer or officer’s spouse is a party to the notarial act, or if the officer or officer’s spouse has a direct beneficial interest (Sec. 3[2]).
  2. Declares that a notarial act performed by a notarial officer for the officer’s spouse or in which the notarial officer or officer’s spouse has a direct beneficial interest is voidable (Sec. 3[2]).
  3. 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 (Sec. 7[1][a] and [b]).
  4. Permits a notarial officer to refuse to perform a notarial act if an individual has not provided sufficient information or identification credentials necessary to confirm the identity of the individual (Sec 7[1][c]).
  5. Permits a notarial officer to refuse to perform a notarial act unless refusal is prohibited by law other than sections 1-50 of the Act (Sec. 7[2]).
Appearance and Identification of Signer
  1. Expressly states that if a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or signing the record must personally appear before the notarial officer at the time of notarization for an acknowledgment or verification on oath or affirmation (Note: This would apply to the taking of an acknowledgment, verification upon oath or affirmation and signature witnessing.). By inference, an individual requesting a copy certification does not need to appear before the notarial officer. (Sec. 5)
  2. Defines “personal knowledge” of the identity of an individual to mean that the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed (Note: the definition in repealed section ORS 194.515[7] requires the interactions between the Notary and signer must eliminate every reasonable doubt that the person has the identity claimed.) (Sec. 6[1]).
  3. Clarifies that a notarial officer has satisfactory evidence of the identity of an individual if the individual presents an identity credential that is current or not expired by more than 3 years. The types of ID that may be presented are unchanged from current law (Sec. 6[2]).
  4. Clarifies that a credible witness who verifies the identity of an individual may present an identity credential (U.S. passport, officially-recognized foreign passport, driver’s license or identification card from Oregon or another state, military ID, ID issued by a federally-recognized Indian tribe or other ID issued by the federal government or a state, county or local government that is current or not expired by more than 3 years), instead of having to be personally known to the Notary (Sec 6[2][a]).
  5. 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 (Sec. 6[3][b]).
Signers with Disabilities
  1. 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 notarial 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)” (Sec. 8).
  2. Clarifies that “Sign” means to “execute or adopt a tangible symbol” (Sec. 2[15); thus, a notarial officer may notarize a person who signs by mark as if the person had made a full handwritten signature.
Notarial Certificates
  1. Requires a notarial certificate: (a) to be signed by a Notary with the Notary’s signature in the same manner as on file with the Secretary of State; and (b) to contain the name of the person for whom the notarial act is performed (Sec. 14[1]).
  2. 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 (Sec. 14[3]).
  3. Permits a notarial officer to correct any information on or omitted from a notarial certificate (Sec. 14[2]).
  4. 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 (Sec. 14[3]).
  5. Clarifies that in executing a notarial certificate the notarial officer certifies he or she made the determinations required by Sections 3, 4, 5 and 6 of the Act (not performing a notarization in which the Notary or Notary’s spouse is a party or has a direct beneficial interest, requiring the signer to be physically present and identified on the basis of satisfactory evidence) (Sec. 14[5]).
  6. Prohibits a notarial officer from signing a notarial certificate on a tangible or electronic record until the notarial act has been performed (Sec. 14[6]).
  7. Requires a notarial certificate for a tangible record must be part of or securely affixed to the record (Sec. 14[7]).
  8. Requires a notarial certificate must be affixed to, or logically associated with, the electronic record, and if any rules for attaching or logically associating a certificate have been adopted by the Secretary of State, those rules must be followed (Sec. 14[7]).
  9. Updates the short-form acknowledgment and copy certification certificates by replacing the words “instrument” and “document” with “record” where applicable (Sec. 15[1], [2] and [5] and ORS 194.575[1], [2] and [5]).
Official Stamp and Stamping Device
  1. Clarifies that a Notary is responsible for the security of the Notary’s stamping device (Sec. 17[1]).
  2. 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 (Sec. 17[3]).
  3. Requires a Notary or Notary’s personal representative to promptly notify the Secretary of State if the Notary’s stamping device is stolen (Sec. 17[4]).
Journal
  1. Permits the journal maintained by a Notary to be kept on a tangible medium or electronic format (Sec. 18[2]).
  2. Requires a journal kept on a tangible medium to be a permanent, bound register with numbered pages and a journal kept in electronic format to be in a permanent, tamper-evident electronic format complying with the rules of the Secretary of State (Sec. 18[2]).
  3. Requires a Notary to record a journal entry contemporaneously with the performance of the notarial act (Sec. 18[3]).
  4. Requires a Notary to store all journals for 10 years after the performance of the last notarial act chronicled in the journal (Sec. 18[1]) in the case when the Notary’s commission expires, is resigned or suspended (Sec 18[6]).
  5. Prescribes the following entries for each journal record in statute: (a) the date and time of the notarial act; (b) a description of the record, if any; (c) a description of the notarial act; (d) the full name and contact address of each individual for whom a notarial act is performed; (e) the method of identification used to identify the signer, consisting of a statement that identification was based upon personal knowledge, if applicable, or a description of the identification credential presented, including the date of expiration of the credential; and (f) the signature of each individual for whom the notarial act is performed; and (g) the fee, if any, for the notarial act (Sec. 18[3]). Note: OAC 160-100-210 also requires the date of the document, but does not require the address of the person whose signature was notarized.
  6. Requires a Notary to promptly notify the Secretary of State if the Notary’s journal is lost or stolen (Sec. 18[5]).
  7. Provides for a “block” entry to be made by the Notary in the journal for notarial acts involving duplicate originals of a single statement or document (Sec. 18[4][a]), different statements or documents for the same individual on the same date (Sec. 18[4][b]), and for notarial acts involving one or more statements, signatures or documents for the same individual but not on the same date (Sec. 18[4][c]). Currently, these conventions are in OAC 160-100-0220.
  8. Requires the Notary’s personal representative or any other person knowingly in possession of the journal(s) to transmit the journal(s) to the Secretary of State upon adjudication of incompetency of a current or former Notary (Sec. 18[8]).
Notarization of Electronic Records
  1. Permits a Notary to use one or more tamper-evident technologies to perform notarial acts on electronic records (Sec. 19[1]).
  2. Requires that any technology used by a Notary to perform a notarization on an electronic record must be tamper-evident (Sec. 19[1]).
  3. 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 (Sec. 19[1]).
  4. 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 (Sec. 19[2]).
  5. 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 (Sec. 19[2]).
  6. 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 of State that the Notary will be performing notarial acts on electronic records (Sec. 23).
Prohibited Acts
  1. 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 any of the above-mentioned activities (Sec. 24[1]).
  2. Prohibits a Notary from engaging in false or deceptive advertising (Sec. 24[2]).
  3. Prohibits a Notary from withholding access to or possession of any original record provided by a person that requests performance of a notarial act unless as otherwise allowed by law (Sec. 24[7]).
  4. 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 (Sec. 18[4]).
  5. Prohibits a Notary from engaging in the unauthorized practice of law (Sec. 24[5]).
  6. Prohibits a Notary from committing any act involving dishonesty, fraud or deceit with the intent to substantially benefit the Notary or another or substantially injure another (Sec. 24[6]).
  7. 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. I am not allowed to draft legal records, give advice on legal matters, including immigration, nor charge a fee for those activities.” The notice also must contain the fees for notarial acts allowed under Section 42. 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 (Note: Existing statute repealed under this Act only requires the posting of the prescribed notice for advertisements in a foreign language.)
  8. Prohibits a Notary from engaging in the unauthorized practice of law (Sec. 24[5]).
  9. Prohibits a Notary from committing any act involving dishonesty, fraud or deceit with the intent to substantially benefit the Notary or another or substantially injure another (Sec. 24[6]).
Grounds for Refusal, Denial, Renewal, Suspension, Revocation and Conditioning Commission of a Notary
  1. Adds a violation of Sections 1-50 of the Act, any rule adopted by the Secretary to implement Sections 1-50 or any other state or federal law relating to any duty required of a Notary as grounds (Sec. 22[1][a]).
  2. Adds a fraudulent, dishonest or deceitful misstatement or omission in an application for a commission as grounds (Sec. [1][b]).
  3. Adds a conviction of a crime involving fraud, dishonesty or deceit as grounds (Sec. 22[1][c]).
  4. Adds 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 dishonesty or deceit as grounds (Sec. 22[1][d]).
  5. 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 (Sec. [3]).
Qualifications; Commissioning
  1. Requires a person applying for a Notary commission to not have been convicted of any crime involving fraud, dishonesty or deceit during the 10-year period preceding the date of application (Sec. 20[2][d]).
  2. Requires a person applying for a Notary commission to not have been disqualified on any of the grounds for which the Secretary may deny or revoke a commission under Section 22 of the Act (Sec. 20[2][f]).
  3. Clarifies that a Notary commission does not provide a Notary any immunities or benefits conferred by law on public officials or employees (Sec. 20[5]).
  4. Clarifies that the examination of a Notary may be administered by the Secretary of State or an entity approved by the Secretary (Sec. 21[1]).
  5. Clarifies that the educational course offered by the Secretary of State or an entity approved by the Secretary must cover the laws, rules, procedures and ethics relevant to notarial acts (Sec. 21[3]).
Validity of Notarial Acts
  1. Clarifies that the failure of a notarial officer to perform the duties or meet the requirements specified in the Act does not invalidate a notarial act performed by the officer (Sec. 25[1]).
  2. Clarifies 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 upon other law (Sec. 25[2]).
  3. Clarifies that the Act does not validate a purported notarial act performed by an individual who does not have the authority to perform the act (Sec. 25[3]).
Recognition of Authority to Perform Notarial Acts
  1. Authorizes a county clerk or county employee with recording responsibilities designated by the county to perform notarial acts (Sec. 9[1][c]).
  2. Authorizes any other individual authorized by Oregon law to perform a notarial act (Sec. 9[1][d]).
  3. Clarifies that a notarial act performed under federal law by an individual designated a notarizing officer by the U.S. Department of State for performing notarial acts overseas has the same effect under Oregon law as if performed by a notarial officer of Oregon (Sec. 12:1]).
Repealed and Replaced Sections
  1. Under new section 194.070, a Notary who is an officer or employee of a trust company under ORS 706.008 or an individual serving under the direct supervision of an officer or employee of a trust company may protest commercial paper (Sec. 32[1]).
  2. Under new section 194.100, provides that a Notary who is a member or partner of a business entity may perform the notarial acts specified under this section unless the Notary is a party to the instrument, whether as an individual or as a representative, and defines “business entity” (Sec. 36).
  3. Provides that anyone injured by a violation of any grounds for which a commission may be revoked (Sec. 24) may pursue an action for damages as provided in Section 44(1) (Sec. 44[1]). Provides that a civil action must be commenced within six years after the cause of action accrued (Sec. 44[4]).
  4. Provides that if the person has not brought a civil action under Section 44(1), the Attorney General or the Secretary of State may bring an action as provided in Section 44[2]) and clarifies that the court may provide such equitable relief as it deems necessary or proper (Sec. 44[2]). Provides that a civil action must be commenced within six years after the cause of action accrued (Sec. 44[4]).
Application of Uniform Law
  1. Clarifies that in applying and construing the Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it (Sec. 49).
  2. Clarifies that the Acts 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 (Sec. 50).
Transition Provisions
  1. Clarifies that Notaries with a valid commission in effect on the operative date of the Act may continue to notarize under their commission until it expires (Sec. 58[1]) but must notarize in conformance with the Act (Sec. 58[3]).
  2. Clarifies that Notaries who apply for a commission on or after the operative date of the Act are subject to and shall comply with the Act (Sec 58[2]).
  3. Clarifies that notarial acts performed prior to the operative date of the Act are valid (Sec. 59).
Repealed Sections
  1. ORS 194.005 definitions, particularly “Good moral character” and “Official misconduct” (Sec. 61).
  2. ORS 194.010 and 194.052 related to the provisions for the issuance of a Certificate of Authorization to purchase a Notary Public seal (Sec. 61).
  3. ORS 194.022 and the qualification that an applicant be of “good moral character” (Sec. 61).
  4. ORS 194.022, particularly that the required education course be three-hours in length and, if the person is employed, include instruction on the performance of notarial duties in the course of employment (Sec. 61).
  5. ORS 194.031(1) related to a Notary’s seal being in black ink.
  6. ORS 194.031(3) related to the effect of a notarized document without an imprint of the Notary’s seal.
  7. ORS 194.031(7) related to the use of an embosser as an adjunct to a Notary’s official stamp seal.
  8. ORS 194.043 related to a Notary Public having statewide jurisdiction and not being able to perform notarizations in another state. Note: Section 9(1) states that Notaries Public may perform notarial acts within the state of Oregon.
  9. ORS 194.156(1) related to the Notary’s personal representative delivering the official seal to the Secretary of State upon the Notary’s death.
  10. ORS 194.158(2) related to the Notary seal not being used to indorse or promote any product, service, contest or other offering.
  11. ORS 194.166(12) related to failing to complete an acknowledgment at the time the Notary’s signature and seal are affixed to the document as grounds for revocation of a Notary’s commission.
  12. ORS 194.166(15) related to failing to give notice of change of name or address as grounds for revocation of a Notary’s commission.
  13. ORS 194.578 related to a blind or visually impaired person being able to sign using a signature stamp. However, the definition of “Sign” and “Signature” under the Act would appear to allow this continued use of signature stamps.
Analysis:
Oregon enacts the Revised Uniform Law on Notarial Acts (RULONA) published by the Uniform Law Commission. Oregon becomes the third state to enact the RULONA. Like North Dakota and Iowa, Oregon doesn’t altogether replace its Notary statutes with the RULONA, but reenacts many prior statutes that have been on the books (such as commissioning procedures, education and journal provisions, etc.) However, some of these existing statutes have been changed, such as identification provisions. Also, there have been some notable statutes removed, such as the rules for the issuance of certificates of authorization to purchase a Notary seal. However, the Secretary of State’s office has told the NNA that it plans to keep the seal issuance provisions and will be adopting administrative rules that will require Notaries to present a certificate of authorization in order to obtain a Notary seal. These rules are forthcoming. Therefore, further clarification on certain provisions of the RULONA will be made when these rules are published.
 

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