WA Senate Bill 5081 | NNA
Law

WA Senate Bill 5081

Notary Law Update: WA Senate Bill 5081

State: Washington

Summary:

Senate Bill 5081 enacts the Revised Uniform Law on Notarial Acts (RULONA), including a new journal requirement.

Signed:  May 10, 2017

Effective:  July 01, 2018

Chapter: 281

Affects:

Amends Sections 9.97.020, 18.235.010, 18.235.020, 19.34.340, 19.154.060, 43.24.150, 64.08.060, and 64.08.070 of; adds a new chapter to Title 42; and repeals Sections 42.44.010, 42.44.020,442.44.030, 42.44.050, 42.44.060, 42.44.070, 42.44.080, 42.44.090,542.44.100, 42.44.110, 42.44.120, 42.44.130, 42.44.140, 42.44.150,642.44.160, 42.44.170, 42.44.180, 42.44.190, 42.44.200, 42.44.210,742.44.220, 42.44.221, 42.44.900, 42.44.901, and 42.44.903 of the Revised Code of Washington.

Changes:

Definitions

  1. Adds new definitions for the following terms used in the Act: “acknowledgment,” “electronic,” “electronic signature,” “electronic records notary public,” “in a representative capacity,” “notarial act,” “notary public,” “notarial officer,” “official stamp,” “person,” “record,” “sign,” “signature,” “stamping device,” “state” and “foreign state” (see Section 14) and “verification on oath or affirmation.”
  2. 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 Department of Licensing.
  3. Clarifies that “official stamp” means the physical image affixed to or embossed on 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.
  4. Uses the term “record” to refer to either 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.

Qualifications; Commissioning; Electronic Records Notary Public

  1. 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 Washington; (d) be able to read and write English; and (e) not be disqualified to receive a commission by any of the grounds authorizing the Department of Licensing to refuse to grant a commission.
  2. Requires an individual to execute an oath of office prior to being issued a commission by the Department of Licensing.
  3. Requires an applicant for a Notary Public commission to submit to the Department of Licensing an “assurance” in the form of a surety bond in an amount established by the Director in rule.
  4. States that the assurance must cover acts performed during the commission term of the Notary and must be in the form prescribed by the Department of Licensing.
  5. Requires the surety or issuing entity of the assurance to provide notification to the Department of Licensing within 30 days after paying out a claim on the assurance.
  6. Clarifies that a Notary may perform notarial acts only during the period that a valid assurance is on file with the Department of Licensing.
  7. Clarifies that a Notary commission does not provide a Notary any immunities or benefits conferred by law on public officials or employees.
  8. Provides that an individual qualified for a Notary commission may apply for a commission as an electronic records Notary Public.
  9. Provides that an applicant for electronic records Notary Public commission shall comply with and provide the information required by rules established by the Director of Licensing and pay the relevant application fee.
  10. Requires an applicant for an electronic records Notary Public commision must hold a commission as Notary Public.
  11. Provides that an electronic records Notary Public commission may take the form of an endorsement to the Notary commission if deemed appropriate by the Director.

Authority to Perform or Refuse to Perform Notarizations

  1. 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.
  2. Permits a notarial officer to refuse to perform a notarial act unless the refusal is prohibited by law other than the new chapter.
  3. Clarifies that a notarial officer may note a protest of a negotiable instrument only if the notarial officer is licensed to practice law in Washington, acting under the authority of an attorney who is licensed to practice law in Washington or another state or acting under the authority of a financial institution regulated by Washington, another state or the federal government.

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

  1. Requires a signer of a record, including an electronic record, to personally appear before the notarial officer at the time of notarization for an acknowledgment or verification on oath or affirmation. Note: the new law does not require an individual requesting a copy certification to appear before the notarial officer.
  2. 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.
  3. 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 valid 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 notarial officer who presents a form of ID listed in subsection (a) above and who verifies under oath or affirmation that the witness knows the individual.
  4. Permits a notarial officer to require an individual to provide additional information or identification credentials to assure the officer that the individual has the identity claimed.
  5. 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).”

Recognition of Authority to Perform Notarial Acts

  1. Recognizes the notarial acts performed by the following officers of another state as having the same effect under Washington law as if performed by an Washington notarial officer: (a) a Notary of that state; (b) a judge, clerk or deputy clerk of a court of that state and (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 are prima facie evidence that the signature is genuine and that the individual holds the designated title, and the signature and title of a notarial officer described in sections (a) and (b) conclusively establish the authority of the notarial officer to perform the notarial act.
  2. Recognizes the notarial acts performed by the following officers of a federally-recognized American Indian tribe as having the same effect under Washington law as if performed by an Washington notarial officer: (a) a Notary of that tribe; and (b) 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 are prima facie evidence that the signature is genuine and the individual holds the designated title, and the signature and title of a notarial officer described in sections (a) and (b) conclusively establish the authority of the notarial officer to perform the notarial act.
  3. Recognizes the notarial acts performed by the following officers under federal law as having the same effect under Washington law as if performed by an Washington notarial officer: (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 notarial officer by the United States Department of State for performing notarial acts overseas; and (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 the signature and title of a notarial officer described in sections (a) and (b) and (c) conclusively establish the authority of the notarial officer to perform the notarial act.
  4. 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, a notarial act has the same effect under Washington law as if performed by a Notary of Washington.
  5. Provides 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 conclusively established.
  6. Provides that the signature and official stamp of an individual holding an office described 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 the 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.

Notarial Certificates and Official Stamp

  1. Requires a notarial act to be evidenced by a certificate of the notarial act.
  2. Requires a notarial certificate to be executed contemporaneously with the performance of the notarial act.
  3. Requires a notarial certificate to include (a) the jurisdiction in which the notarial act is performed, (b) the title of the notarial officer and (c) the date of expiration of the Notary’s commission.
  4. Requires a notarial certificate to be in English or in dual languages, one of which must be English.
  5. Requires a notarial certificate to be signed by a Notary with the Notary’s signature in the same manner as on file with the Department of Licensing.
  6. Requires the Notary to affix or emboss the Notary’s official stamp on the notarial certificate of a tangible record.
  7. Permits, but does not require, a notarial officer other than a Notary Public to affix or emboss 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.
  8. Requires a Notary to attach or logically associate an official stamp on a notarial certificate on an electronic record.
  9. Permits, but does not require, a notarial officer other than a Notary Public to attach or logically associate an official stamp on the notarial certificate of an electronic record if the certificate contains the signature of the notarial officer, date of notarization, jurisdiction where the notarial act was performed and the title of the notarial officer.
  10. Clarifies that the text of a notarial certificate is sufficient if it meets the requirements of Sections 5, 6 and 7 of the new law (requiring the signer to be physically present and identified on the basis of personal knowledge or satisfactory evidence).
  11. Prohibits a notarial officer from signing a notarial certificate on a tangible or electronic record until the notarial act has been performed.
  12. Requires a notarial certificate to be affixed to, or logically associated with, the electronic record according to any standards established by the Department of Licensing if standards have been published.
  13. Updates the short-form notarial certificates by replacing the words “instrument” and “document” with “record” where applicable.
  14. Prescribes the elements for the Notary’s official stamp. (Note: the informational elements remain the same as current law, but adds that the Department of Licensing may require other information to be included in the seal.)
  15. Requires the official stamp must be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated (that is, on an electronic record).
  16. Requires the seal or stamp used at the time that a notarial act is performed must be the seal or stamp evidencing the Notary's commission in effect as of such time, even if the Notary has received the seal or stamp evidencing his or her next commission.
  17. 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.
  18. Clarifies the seal or stamp should be kept in a locked and secured area, under the direct and exclusive control of the Notary.
  19. 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.
  20. 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.
  21. Requires a Notary or Notary’s personal representative to notify promptly the Department of Licensing if the Notary’s stamping device is lost or stolen.
  22. Requires any replacement official stamp to contain a variance from the lost or stolen seal or stamp.

Journal

  1. Requires a Notary to keep a journal of notarial acts for all notarial acts the Notary performs.
  2. Exempts an attorney licensed to practice law in Washington from keeping a journal if the attorney maintains documentation of the notarial act that is otherwise maintained by professional practice.
  3. Permits the journal maintained by a Notary to be kept on a tangible medium or electronic format, but permits only one tangible journal to be kept at a time, and permits an electronic journal to be kept concurrently with the tangible journal.
  4. 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 Department of Licensing.
  5. Requires a Notary to record a journal entry contemporaneously with the performance of the notarial act.
  6. Prescribes the following entries for each journal record: (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 address of each individual for whom a notarial act is performed; and (e) any additional information as required by the Director of Licensing in rule.
  7. Requires the journal to be kept in a locked and secured area, under the direct and exclusive control of the Notary, and clarifies that a failure to do so may be cause for the Director of Licensing to take administrative action against the commission held by the Notary.
  8. Requires a Notary to notify promptly the Department of Licensing if the Notary’s journal is lost or stolen.
  9. Requires a Notary to store all journals for 10 years after the performance of the last notarial act chronicled in the journal and is to be destroyed as required by the Director of Licensing in rule thereafter.
  10. Requires a Notary to inform the Department of Licensing where the Notary’s journal(s) are located on resignation from, or revocation or suspension of, the Notary’s commission.

Notarization of Electronic Records

  1. Requires a Notary to hold a commission as an electronic records Notary Public in order to perform notarial acts on electronic records.
  2. Requires that any technology used by an electronic records Notary Public to perform a notarization on an electronic record must be tamper-evident.
  3. Permits an electronic records Notary Public to use one or more tamper-evident technologies to perform notarial acts on electronic records.
  4. Prohibits any person from requiring an electronic records Notary Public to perform a notarial act with respect to an electronic record with a technology the Notary has not selected.
  5. Clarifies that any technology the electronic records Notary Public intends to use to perform notarial acts on electronic records must comply with any standards established by the Department of Licensing if the Department of Licensing has established standards.
  6. Requires an electronic records Notary Public to notify the Department of Licensing that the Notary will be performing notarial acts with respect to electronic records and identify the technology the electronic records Notary Public intends to use prior to performing the Notary’s first notarial act on an electronic record.
  7. Requires the Director of Licensing to establish standards for approval of technology in rule and clarifies that if the technology conforms to the standards, the Director shall approve use of the technology.
  8. Requires the Department of Licensing 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 Department of Licensing that the Notary will be performing notarial acts on electronic records.
  9. Repeals a statute that provided a digital certificate issued by a certification authority may satisfy the requirements of an acknowledgment certificate.

Prohibited Acts; Grounds for Administrative Action Against the Commission of a Notary

  1. Prohibits a notarial officer from performing a notarial act if the officer or officer’s spouse or domestic partner is a party to the notarial act.
  2. Prohibits a notarial officer from notarizing in a transaction if the officer or officer’s spouse or domestic partner has a direct beneficial interest.
  3. Declares that a notarial act performed by a notarial officer for the officer’s spouse or domestic partner, or in which the notarial officer or officer’s spouse or domestic partner has a direct beneficial interest is voidable.
  4. 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; (d) receive compensation for performing the activities in (a) through (c); or (e) provide court reporting services.
  5. Prohibits a Notary from engaging in false or deceptive advertising.
  6. Prohibits a Notary, other than an attorney licensed to practice law or a Washington-licensed limited license legal technician acting within the scope of that license to use the term “notario” or “notario publico.”
  7. Prohibits a Notary from withholding access to or possession of any original record provided by a person that requests performance of a notarial act.    
  8. Prohibits a Notary, other than an attorney licensed to practice law or a Washington-licensed limited license legal technician acting within the scope of that license, from representing or advertising that the Notary may assist persons in drafting legal records, give legal advice or otherwise practice law.
  9. Requires a Notary who is not an attorney or a Washington-licensed limited license legal technician acting within the scope of that license, 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 Department of Licensing in the advertisement or representation, prominently and in each language used in the advertisement or representation: “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, nor charge a fee for 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.
  10. Prohibits a Notary from maintaining copies or electronic images of documents notarized unless the copies or images are maintained by an attorney or Washington-licensed limited license legal technician acting within his or her scope of practice for the performance of legal services or for other services performed for the client and the copies or images are not maintained solely as part of the Notary transaction.
  11. Permits the Director of Licensing to take action as provided for in RCW 18.235.110 against a commission as a Notary for conduct defined as unprofessional under RCW 18.235.130.
  12. Permits the Department of Licensing to take action against the commission of a Notary 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 the new chapter; (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 Notary, whether by the new chapter, rules of the Director of Licensing 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 of the Director regarding Notaries; (g) denial, refusal to renew, revocation, suspension or conditioning of a Notary commission in another state, (h) failure to maintain an assurance; and (i) making or noting a protest of a negotiable instrument without being properly authorized under the new chapter to do so.
  13. Provides that an applicant or a Notary is entitled to timely notice and hearing in accordance with RCW 34.05 if the Director denies, refuses to renew, revokes, suspends, imposes conditions, or otherwise sanctions a commission of an applicant or Notary.
  14. 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.

Administrative Rules

  1. Permits the Director of Licensing to adopt rules to implement the Act.
  2. Stipulates that in adopting, amending or repealing rules regarding notarial acts performed on electronic records, the Director of Licensing shall consider, so far as it is consistent with the Act the standards, practices, and customs of other jurisdictions that substantially enact the RULONA.

Miscellaneous

  1. Clarifies that except as provided in Section 4(2) of the new chapter, the failure of a notarial officer to perform the duties or meet the requirements specified in the new chapter does not invalidate a notarial act performed by the officer.
  2. Provides that the validity of a notarial act under the new chapter 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; and that the Act does not validate a purported notarial act performed by an individual who does not have the authority to perform the act.
  3. Clarifies that the Act does not affect the validity and effect of a notarial act performed before the effective date of the Act under a law repealed by the Act.
  4. 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.
  5. Clarifies that the Act 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.
  6. Provides the date of July 1, 2018, as the effective date of the new law.
Analysis:

Washington state enacts the Revised Uniform Law on Notarial Acts. Previously, Washington had enacted portions of the Uniform Law on Notarial Acts. The new laws substantively update the statute and repeal the former laws. The single greatest provision enacted in SB 5081 is a new journal requirement. The bill also creates a new "electronic records Notary Public" commission for existing Notaries who want to perform notarial acts on electronic records. SB 5081 generally contains most of the provisions of the RULONA as adopted by the Uniform Law Commission. The new law takes effect July 1, 2018.

Read the bill text.

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