WV House Bill 4012 | NNA
Law

WV House Bill 4012

Notary Law Update: WV House Bill 4012

State: West Virginia

Summary:

House Bill 4012 enacts the Revised Uniform Law on Notarial Acts (RULONA), comprehensively revising West Virginia’s Notary statutes. HB 4012 contains virtually all of the “stock” RULONA provisions and adds a $1,000 surety bond/errors and omissions insurance/professional liability insurance/commercial general liability insurance requirement for Notaries. HB 4012 also changes the length of the Notary’s commission from 10 years to 5 years.

Signed:  March 28, 2014

Effective:  July 01, 2014

Chapter: 133

Affects:

Repeals Sections §29-4-3, §29-4-4, §29-4-5, §29-4-6, §29-4-7, §29-4-8, §29-4-12, §29-4-13, §29-4-14, §29-4-15, §29-4-16, §29C-1-101, §29C-1-102, §29C-1-103, §29C-1-104, §29C-1-105, §29C-1-106, §29C-1-107, §29C-2-201, §29C-2-202, §29C-2-203, §29C-2-204, §29C-2-205, §29C-2-206, §29C-2-207, §29C-2-208, §29C-2-301, §29C-3-101, §29C-3-102, §29C-4-101, §29C-4-102, §29C-4-103, §29C-4-104, §29C-4-201, §29C-4-202, §29C-4-203, §29C-4-301, §29C-4-401, §29C-4-402, §29C-4-403, §29C-4-404, §29C-4-405, §29C-5-101, §29C-5-102, §29C-5-103, §29C-5-104, §29C-6-101, §29C-6-102, §29C-6-103, §29C-6-201, §29C-6-202, §29C-6-203, §29C-6-204, §29C-7-101, §29C-7-201, §29C-7-202, §29C-8-101, §29C-9-101, §39-1A-1, §39-1A-2, §39-1A-3, §39-1A-4, §39-1A-5, §39-1A-6, §39-1A-7, §39-1A-8 §39-1A-9; adds Sections §39-4-1, §39-4-2, §39-4-3, §39-4-4, §39-4-5, §39-4-6, §39-4-7, §39-4-8, §39-4-9, §39-4-10, §39-4-11, §39-4-12, §39-4-13, §39-4-14, §39-4-15, §39-4-16, §39-4-17, §39-4-18, §39-4-19, §39-4-20, §39-4-21, §39-4-22, §39-4-23, §39-4-24, §39-4-25, §39-4-26, §39-4-27, §39-4-28, §39-4-29, §39-4-30, §39-4-31, §39-4-32, §39-4-33, §39-4-34, §39-4-35 and §39-4-36; and amends and re-enacts sections §39-1-4, §39-1-5, §57-4-2, §57-5-9 and §59-1-2 of the West Virginia Code

Changes:
 
Definitions
  1. Adds new definitions for the following terms used in the Act: “Acknowledgment,” “Electronic,” “Electronic signature,” “Foreign state,” “In a representative capacity,” “Notary public,” “Notarial officer,” “Official stamp,” “Person,” “Record,” “Sign,” “Signature,” “Stamping device,” “State” and “Verification on oath or affirmation.”
  2. Adopts the Uniform Electronic Transactions Act (UETA) definitions of “Electronic,” “Electronic Signature” and “Record.”
  3. Adopts the Uniform Commercial Code Section 2 definition of “Sign.”
  4. 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.
  5. 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.
  6. 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.
Applicability; Operative Date
  1. Clarifies that the RULONA applies to notarial acts performed on or after July 1, 2014.
  2. Clarifies that all repealed sections under the new law are operative on June 30, 2014, unless after the effective date, and prior to the operative date of June 30, 2014, the provisions of enrolled House Bill 4012 are otherwise repealed or amended or reenacted.
Qualifications; Commissioning; Electronic Notarization Registration
  1. Prescribes that a Notary commission applicant must meet the following qualifications: (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 WV; (d) be able to read and write English; (e) have a high school diploma or its equivalent; and (d) not be disqualified to receive a commission under Section 39-4-23 (Note: this could be an error: Section 39-4-21 lists grounds for which the Secretary may deny a commission).
  2. Requires an applicant for a commission to submit a $1,000 surety bond or its functional equivalent, professional liability insurance policy, errors and omissions insurance policy, commercial general liability insurance policy, or its equivalent.
  3. Provides that upon compliance with Section 39-4-20, the Secretary of State shall commission an applicant as a Notary for 5 years. (Note: The prior commission term was 10 years.)
  4. Clarifies that a Notary commission does not provide a Notary any immunities or benefits conferred by law on public officials or employees.
  5. Requires a Notary to notify the Secretary of State 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 Notarizations; Fees for Notarial Acts
  1. Authorizes Notaries Public and notarial officers to perform signature witnessings, verifications upon oath or affirmation and protests. (Note: A Notary’s authority to perform acknowledgments, administer oaths and affirmations and perform copy certifications carry over.)
  2. 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
  3. Authorizes a notarial officer to refuse to perform a notarial act unless refusal is prohibited by other law.
  4. Provides that notarial acts may be performed by (a) Notaries Public, (b) a judge, clerk, or deputy clerk of a court, or (c) any other individual authorized to perform the specific notarial act by the law of West Virginia.
  5. Re-enacts statutes related to the administration of oaths, the taking of affidavits generally and for persons in military service.
  6. Raises the maximum fee for notarizing each signature and recording the notarial act in a Notary’s journal to $5.00 for each signature notarized, $5 for a copy certification, recording the act in the journal and retaining a copy of each letter-sized page in the Notary’s file, and $5 for any other notarial act.
Disqualifications
  1. Prohibits a notarial officer from performing a notarial act if the officer or officer’s spouse is a party to or will receive a direct beneficial interest from the notarial act.
  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.
Appearance and Identification of Signer; Signature of Person Unable to Sign
  1. Requires a signer of a record to personally appear before the notarial officer for an acknowledgment, verification on oath or affirmation and signature witnessing, but does not require an individual to appear before the notarial officer for a copy certification.
  2. Clarifies that in respect to appearance of the signer, an individual making a statement or executing a signature does not appear personally if the appearance is by video or audio technology, even if the video is synchronous.
  3. 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.
  4. 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 and that is satisfactory to the notarial officer; or (c) brings a credible witness personally known to the individual who presents a form of ID listed in subsection (a) above and who verifies under oath or affirmation that the witness knows the individual.
  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.
  6. 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)” or words of similar import near the signature.
Official Stamp
  1. Requires the Notary to affix or emboss the Notary’s official stamp on the notarial certificate of a tangible record. (Note: an “official stamp” may be an inking stamp or embosser seal, but the embossment must be photographically reproducible. See #2 below.)
  2. Requires that the Notary’s 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.
  3. Prescribes the elements for the Notary’s official stamp: (a) the name of the Notary; (b) the Notary’s address; (c) the Notary’s jurisdiction; (d) the Notary’s commission number and (e) the Notary’s commission expiration date. The Secretary may require additional information to be included in the Notary’s official stamp.
  4. 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.
  5. 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.
  6. 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.
  7. 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 on resignation from, or the revocation or expiration of, the Notary’s commission, or on the expiration of the date set forth in the stamping device.
  8. Requires, in the event of the Notary’s death or adjudication of incompetency, the Notary’s personal representative or other person knowingly in possession of the stamping device to render it unusable.
  9. Requires the Notary or the Notary’s personal representative to notify the Secretary of State if the Notary’s official stamping device is lost or stolen. (Note: existing statute that is repealed under the new law required a Notary to notify the Secretary of State of a lost or misplaced seal within 30 days.)
Notarial Certificates
  1. Requires each notarial act performed to be evidenced by a certificate that: (a) is executed contemporaneously with the performance of the notarial act, (b) is signed by the notarial officer, (c) identifies the jurisdiction in which the notarial act is performed (d) contains the title of office of the notarial officer, and (e) if signed by a Notary, contains the Notary’s commission expiration date.
  2. Requires a notarial certificate to be signed by a Notary with the Notary’s signature in the same manner as on file with the Secretary of State.
  3. Prohibits a notarial officer from signing a notarial certificate on a tangible or electronic record until the notarial act has been performed.
  4. Clarifies that the text of a notarial certificate is sufficient if it: (a) is in a short form contained in Chapter 39-4-16; (b) it is in a form otherwise permitted by West Virginia law; (c) is in a form permitted by law applicable in the jurisdiction in which the notarial act is performed; or (e) sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of Chapter 39-4-5, 39-4-6 and 39-4-7 (stating the requirements for particular notarial acts and requiring the signer to be physically present and identified on the basis of personal knowledge or satisfactory evidence).
  5. Clarifies that in executing a notarial certificate, a notarial officer certifies that he or she has complied with the requirements of Chapter 39-4-4, 39-4-5 and 39-4-6 (affirming the Notary has authority to perform notarial acts, disallowing a disqualifying interest of the Notary or the Notary’s spouse, and requiring the signer to be physically present at the time of notarization).
  6. Prohibits a notarial officer from signing or logically associating the signature with a certificate until the notarial act has been performed.
  7. Requires that a certificate for a paper record must be part of, or securely attached to, the record.
  8. States that a notarial certificate must be affixed to, or logically associated with, an electronic record according to any standards established by the Secretary of State, if standards have been published.
  9. Adopts new short-form certificates for all authorized notarial acts.
Notarization of Electronic Records
  1. Requires that any technology used by a Notary to perform a notarization on an electronic record must be tamper-evident.
  2. Permits a Notary to use one or more tamper-evident technologies to perform notarial acts on electronic records.
  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.
  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 of State has established standards.
  5. 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; Liability; Penalties
  1. States that a commission to perform notarial acts does not allow an individual: (a) assist persons in drafting legal records, giving legal advice or otherwise practicing 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 prohibited acts in (a), (b) or (c).
  2. Prohibits a Notary from engaging in false or deceptive advertising.
  3. Prohibits a Notary, other than an attorney licensed to practice law, from using the term “notario” or “notario publico.”
  4. Prohibits a Notary from withholding access to or possession of any original record provided by a person that requests performance of a notarial act.
  5. 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.
  6. 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”; and further provides 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.
  7. Repeals the current statute allowing the Secretary of State to revoke the commission of a Notary upon stated grounds and 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 the following acts: (a) a failure to comply with any provision of Chapter 39-4-1 through 39-4-36; (b) a 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 a disciplinary action based on the applicant’s or Notary’s fraud, dishonesty or deceit; (e) a failure by a Notary to discharge any duty or responsibility required of a notarial officer, whether by Chapter 39-4-1 through 39-4-36, rules of the Secretary of State 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; (g) a violation of a rule; (h) a denial, refusal to renew, revocation, suspension or conditioning of a Notary commission in another state; (i) failure of the Notary to maintain an assurance ($1,000 bond/E&O insurance policy/professional liability policy/commercial general liability policy); (j) charging more than the maximum fees specified in Chapter 39-4-30; and (k) failure to notify the Secretary of State of an address or name change pursuant to Chapter 39-4-22(b).
  8. If the Secretary of State denies, refuses to renew, revokes, suspends or imposes conditions on a commission as a Notary, the applicant or Notary is entitled to timely notice and hearing in accordance with Article five, Chapter 29A of the West Virginia Code.
  9. 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.
  10. Repeals the existing definition of “official misconduct” and replaces it with the following: the term “official misconduct” means any act or conduct that (a) may result in the denial, refusal to renew, revocation, suspension or condition commission of a Notary pursuant to Section 39-4-21 or (b) is prohibited by Section 39-4-23.
  11. Re-enacts the current provision that provides that a Notary who knowingly and willfully commits any official misconduct is guilty of a misdemeanor and, upon conviction, shall be fined not more than $5,000 or confined in jail not more than one year, or both fined and confined.
  12. Re-enacts the current provision that provides that a Notary who recklessly or negligently commits any official misconduct is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000.
  13. Re-enacts the current provision that provides that a person who acts as or willfully impersonates, a Notary is guilty of a misdemeanor and, upon conviction, shall be fined not more than $5,000 or confined in jail not more than one year, or both fined and confined.
  14. Re-enacts the current provision that provides that a person who unlawfully possesses a Notary’s official seal or any papers or copies relating to notarial acts, is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000.
  15. Re-enacts the current provision authorizing the Attorney General, or his or her designee, an organized bar association or the Secretary of State to maintain an action for injunctive relief in circuit court against a Notary who renders, offers to render or holds himself or herself out as rendering any service constituting the unauthorized practice of the law, and permits any organized bar association to intervene in the action, at any stage of the proceeding, for good cause shown.
  16. Permits the Secretary of State to (a) investigate, upon complaint or on his or her own initiative, any alleged violations or irregularities of Chapter 39-4-1 through 39-4-36; (b) administer oaths and affirmations, issue subpoenas for the attendance of witnesses, issue subpoenas to compel the production of books, papers, records and all other evidence necessary to any investigation; (c) involve the aid of any circuit court in the execution of its subpoena power; and (d) report any alleged violations to the appropriate prosecuting attorney having jurisdiction.
  17. Requires the Attorney General, when requested, to provide legal and investigative assistance to the Secretary of State.
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 West Virginia law as if performed by an West Virginia 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 West Virginia law as if performed by an West Virginia notarial officer: (a) a Notary of that tribe; (b) a judge, clerk, or deputy clerk of a court of that tribe and (c) 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 West Virginia law as if performed by an West Virginia 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 West Virginia law as if performed by a notarial officer of West Virginia.
  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.
Administrative Rules
  1. Permits the Secretary of State to adopt rules to implement Chapter 39-4-1 through 39-4-36.
  2. Clarifies that any rules adopted by the Secretary with respect to performing notarial acts on electronic records shall not require or favor one technology or technical specification over another.
  3. Provides that any rules adopted by the Secretary 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 public 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 under Chapter 39-4-20(d); and (g) establish fees, with legislative approval in accordance with the provisions of Article 3, Chapter 29A of the West Virginia Code.
  4. Provides that any fees collected by the Secretary of State shall be deposited by the Secretary as follows: One-half shall be deposited in the state general revenue fund and one-half shall be deposited in the service fees and collections account established for the operation of the office of the Secretary of State. The Secretary of State shall dedicate sufficient resources from that fund or other funds to provide the services required by the provisions of law.
  5. Provides that in adopting rules about notarial acts with respect to electronic records, the Secretary shall consider: (a) the most recent standards regarding electronic records promulgated by national bodies, such as the National Association of Secretaries of State; (b) standards, practices and customs of other jurisdictions that substantially enact the RULONA; and (c) the views of governmental officials and entities and other interested persons.
Miscellaneous
  1. Clarifies that the failure of a notarial officer to perform the duties or meet the requirements specified in Chapter 39-4-1 through 39-4-36 does not invalidate a notarial act performed by the officer, that the validity of a notarial act under Chapter 39-4-1 through 39-4-36 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 this provision does not validate a purported notarial act performed by an individual who does not have the authority to perform the act.
  2. Clarifies that in applying and construing the Chapter 39-4-1 through 39-4-36 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.
  3. Clarifies that the Chapter 39-4-1 through 39-4-36 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.
  4. Clarifies that a commission as a Notary in effect on June 30, 2014, continues until its date of expiration, that a Notary who applies for a commission as a notary public on or after July 1, 2014, is subject to and shall comply with the new laws, and that a Notary, in performing notarial acts on or after July 1, 2014, shall comply with the new laws.
  5. Clarifies that an appointment as commissioner of deeds under the repealed provisions of Chapter 29-4-3 through 29-4-16, in effect on June 30, 2014, continues until its date of expiration, that a commissioner, in performing notarial acts on or after July 1, 2014, shall comply with the new laws: provided, that a person holding a commission pursuant to the provisions of Chapter 29-4-3 through 29-4-16, on June 30, 2014, is not required to obtain or use a stamp required by Chapter 39-4-17, prior to the expiration of that commission.
  6. Provides that enactment of the new laws do not affect the validity or effect of a notarial act performed before July 1, 2014.
  7. Re-enacts the current provisions in the statute related to the commissioning of Notaries for governmental agencies and continues to require such Notaries to remit fees they collect to their governmental agency employer.
  8. Re-enacts the current provisions in the statute related to the liability of a Notary and employer of a Notary.
  9. Permits the Secretary of State to destroy any original journals of notarial acts in his or her possession, provided that an electronic copy is maintained in accordance with the retention rules of the Department of Administration.
Repealers
  1. Repeals the Uniform Notary Act, Chapter 29C-1-101 through 29C-9-11 and miscellaneous provisions related to Notaries in Chapter 29-4-3 through 29-4-8. These include: (a) the authority of a Notary to act as a conservator of the peace within the county of residence, and as a conservator all the powers conferred by law upon justices of the peace; (b) a former provision stating it is lawful for any Notary who is a stockholder, director, officer or employee of a banking institution, including national banking associations, or other corporation, to take the acknowledgment of any party to any written instrument executed to or by such corporation, or to administer an oath to any other stockholder, director, officer, employee or agent of such corporation, or to protest, for nonacceptance or nonpayment, bills of exchange, drafts, checks, notes and other negotiable instruments which may be owned or held for collection by such corporation unless the Notary is a party to the document either personally or as a representative of the corporation; or when such Notary is personally a party to an instrument that is protested; and (c) a rule stating that the official signature of any Notary shall state the date of expiration of his commission, but a misstatement of such date shall not invalidate any official act of such Notary, if the commission was in force at the time.
  2. Repeals the Uniform Recognition of Acknowledgments Act, Chapter 39-1A-1 through 39-1A-9, and in particular, repeals the authority of a Notary to perform a proof of execution under the URAA, and repeals the certificate for an executing witness
  3. Repeals the office of commissioner of deeds, Chapter 29-4-12 through 29-4-16.
  4. Repeals the existing statutory notarial certificates.
  5. Repeals the statute stating that the application fee for a Notary commission is $50, and enacts a statute stating that an applicant shall comply with and provide the information required by rules promulgated by the Secretary of State and “pay any application fee.” (Note: The Secretary of State’s office informed the NNA that it intends to retain the $50 fee through administrative rule.
  6. Repeals the statute containing the wording for a certificate of authority completed by the Secretary of State for the purpose of authenticating notarial acts.
  7. Repeals the statutes requiring payment of a $2 fee for reporting a change of name or business or residential address. (Note: The Secretary of State’s office informed the NNA that it intends to retain the $2 fee through administrative rule.)
  8. Repeals the statute requiring the personal representative of a Notary to send by certified mail or deliver to the Secretary of State the deceased Notary’s papers and copies related to notarial acts, but retains the portion of the provision requiring the personal representative to destroy the Notary’s stamping device. (See “Official Stamp” #7.
  9. Repeals the statute requiring a Notary who wishes to resign to forthwith send by certified mail or deliver to the Secretary of State a letter of resignation and all papers and copies related to his or her notarial acts.
  10. Repeals the statute requiring a Notary whose commission is revoked to forthwith send by certified mail or deliver to the Secretary of State all papers and copies related to his or her notarial acts.
  11. Repeals the statute requiring a Notary who is not reappointed to a new commission to within 30 days send by certified mail or deliver to the Secretary of State a letter of resignation and all papers and copies related to his or her notarial acts.
Analysis:

West Virginia’s enactment of the Revised Uniform Law on Notarial Acts (RULONA) is the fifth enactment of the RULONA since the Uniform Law Commission published the RULONA in 2010. West Virginia has enacted virtually the entire Act as published, while retaining some of the provisions in their existing statutes. The RULONA-specific provisions adopted by HB 4012 represent a very positive reform of West Virginia’s Notary laws, particularly in the areas of identification for notarial acts, reasons for which a Notary may refuse a notarization, and electronic notarization. Perhaps most noteworthy, West Virginia addresses the ongoing issue of whether a Notary and document signer may "appear" via audio and video technology. It follows Iowa in clarifying that signers of documents must appear physically and not by audio and video technology. Also noteworthy is that House Bill 4012 enacts a new requirement that Notaries post a surety bond or equivalent in the amount of $1,000, making West Virginia the first state in many years to enact such a requirement. It allows a Notary to post a surety bond, errors and omissions insurance policy, professional liability policy or commercial general liability policy to satisfy the requirement. Under the RULONA as published by the Uniform Law Commission, the surety bond provision was optional. HB 4012 had a journal and education requirement in the original introduced version of the bill, but these provisions were stricken from the bill. HB 4012 also raises the fees Notaries may charge from $2 to $5 for all notarial acts. HB 4012 also changes the length of the Notary’s commission from 10 years to 5 years. A historical note: West Virginia’s existing statutes, which were repealed by HB 4012, were based upon the Uniform Notary Act (UNA). The UNA was the first model statute published by the NNA back in 1973 and was the precursor to today’s Model Notary Act.

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