Bill Text: MI HB5811 | 2017-2018 | 99th Legislature | Engrossed
Bill Title: Occupations; notaries public; remote performance of notarial acts; authorize. Amends secs. 15, 25 & 27 of 2003 PA 238 (MCL 55.275 et seq.) & adds secs. 26b & 54.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2018-08-15 - Assigned Pa 330'18 With Immediate Effect [HB5811 Detail]
Download: Michigan-2017-HB5811-Engrossed.html
HB-5811, As Passed House, May 16, 2018
SUBSTITUTE FOR
HOUSE BILL NO. 5811
A bill to amend 2003 PA 238, entitled
"Michigan notary public act,"
by amending sections 15, 25, and 27 (MCL 55.275, 55.285, and
55.287), section 15 as amended by 2006 PA 510, section 25 as
amended by 2006 PA 426, and section 27 as amended by 2006 PA 155,
and by adding sections 26b and 54.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
15. (1) A person An
individual shall apply to the
secretary for appointment as a notary public in a format as
prescribed by the secretary. An application for appointment as a
notary
public shall contain the must
include the handwritten
signature
of the applicant . In addition to other information as
may
be required by the secretary, the application shall include and
all of the following information:
(a) The applicant's name, residence address, business address,
date
of birth, and residence and business telephone numbers, and
electronic mail address.
(b) The applicant's driver license or state personal
identification card number.
(c) A validated copy of the filing of the bond, if applicable,
and oath certificate received from the county clerk.
(d) If applicable, a statement showing whether the applicant
has previously applied for an appointment as a notary public in
this or any other state, the result of the application, and whether
the applicant has ever been the holder of a notary public
appointment that was revoked, suspended, or canceled in this or any
other state.
(e) A statement describing the date and circumstances of any
felony or misdemeanor conviction of the applicant during the
preceding 10 years.
(f) A declaration that the applicant is a citizen of the
United States or, if not a citizen of the United States, proof of
the applicant's legal presence in this country.
(g) An affirmation by the applicant that the application is
correct, that the applicant has read this act, and that the
applicant will perform his or her notarial acts faithfully.
(h) Any other information required by the secretary.
(2) Each application shall be accompanied by an application
processing
fee of $10.00. One dollar The
secretary shall deposit
$1.00
of each fee collected under this
subsection shall be
deposited
into the notary education and
training fund established
in section 17 on a schedule determined by the secretary.
(3)
Upon receipt of When he or
she receives an application
that is accompanied by the prescribed processing fee, the secretary
may inquire as to the qualifications of the applicant and shall
determine
whether the applicant meets the qualifications prescribed
in
for appointment as a notary
public under this act. To assist in
deciding whether the applicant is qualified, the secretary may use
the law enforcement information network as provided in the C.J.I.S.
policy council act, 1974 PA 163, MCL 28.211 to 28.215, or the
internet criminal history access tool (ICHAT) maintained by the
department of state police, to check the criminal background of the
applicant.
(4)
After approval of the an application
for appointment as a
notary public, the secretary shall mail directly to the applicant
the certificate of appointment as a notary public. Each certificate
of
appointment shall identify the person individual as a notary
public
of this state and shall specify the term and county of the
person's
his or her commission.
Sec. 25. (1) A notary public may perform notarial acts that
include, but are not limited to, the following:
(a) Taking acknowledgments.
(b) Administering oaths and affirmations.
(c) Witnessing or attesting to a signature.
(2) In taking an acknowledgment, the notary public shall
determine, either from personal knowledge or from satisfactory
evidence,
that the person individual
in the presence of the notary
public
and making the acknowledgment is the person individual whose
signature is on the record.
(3) In taking a verification upon oath or affirmation, the
notary public shall determine, either from personal knowledge or
from
satisfactory evidence, that the person individual in the
presence of the notary public and making the verification is the
person
individual whose signature is on the record being verified.
(4) In witnessing or attesting to a signature, the notary
public shall determine, either from personal knowledge or from
satisfactory
evidence, that the signature is that of the person
individual
in the presence of the notary public
and is the person
individual named in the record.
(5) In all matters where the notary public takes a
verification upon oath or affirmation, or witnesses or attests to a
signature,
the notary public shall require that the person
individual sign the record being verified, witnessed, or attested
in the presence of the notary public.
(6)
A notary public has satisfactory evidence that a person an
individual
is the person individual whose signature is on a record
if
that person individual is any of the following:
(a) Personally known to the notary public.
(b) Identified upon the oath or affirmation of a credible
witness personally known by the notary public and who personally
knows
the person.individual.
(c) Identified on the basis of a current license,
identification card, or record issued by a federal or state
government
that contains the person's individual's
photograph and
signature.
(d) With regard to a notarial act performed under section 26b,
identified and verified through an identity proofing process or
service that is part of a remote electronic notarization platform
approved under section 26b(1), and the person presents an identity
document described in subdivision (c) that is verified through a
credential analysis process or service that is part of a remote
electronic notarization platform approved under section 26b(1).
(7) The fee charged by a notary public for performing a
notarial act shall not be more than $10.00 for any individual
transaction or notarial act. A notary public shall either
conspicuously
display a sign or expressly advise a person an
individual concerning the fee amount to be charged for a notarial
act before the notary public performs the act. Before the notary
public commences to travel in order to perform a notarial act, the
notary public and client may agree concerning a separate travel fee
to be charged by the notary public for traveling to perform the
notarial act.
(8) A notary public may refuse to perform a notarial act.
(9) The secretary shall prescribe the form that a notary
public shall use for a jurat, the taking of an acknowledgment, the
administering of an oath or affirmation, the taking of a
verification upon an oath or affirmation, the witnessing or
attesting to a signature, or any other act that a notary public is
authorized to perform in this state.
(10) A county clerk may collect a processing fee of $10.00 for
certifying a notarial act of a notary public.
Sec. 26b. (1) Beginning January 1, 2019, the secretary and the
department of technology, management, and budget shall review and
may approve remote electronic notarization platforms for the
performance of notarial acts in this state. A notary public shall
not use a remote electronic notarization platform that is not
approved under this section.
(2) Subject to subsection (3), in developing criteria for the
approval of any remote electronic notarization platform for use in
this state, the secretary of state and the department of
technology, management, and budget shall consider, at a minimum,
all of the following:
(a) The need to ensure that any change to or tampering with an
electronic record containing the information required under this
act is evident.
(b) The need to ensure integrity in the creation, transmittal,
storage, or authentication of remote electronic notarizations,
records, or signatures.
(c) The need to prevent fraud or mistake in the performance of
remote electronic notarizations.
(d) The ability to adequately investigate and authenticate a
notarial act performed remotely with that remote electronic
notarization platform.
(e) The most recent standards regarding remote electronic
notarization promulgated by national bodies, including, but not
limited to, the National Association of Secretaries of State.
(f) The standards, practices, and customs of other
jurisdictions that allow remote electronic notarial acts.
(3) If a remote electronic notarization platform for the
performance of remote electronic notarizations is approved or
certified by a government-sponsored enterprise, as that term is
defined in 2 USC 622(8), the secretary of state and the department
of technology, management, and budget shall approve the platform
for use in this state if verifiable proof of that approval or
certification is provided to the secretary and department, unless
use of the remote electronic notarization platform is affirmatively
disallowed by the secretary.
(4) The secretary and the department of technology,
management, and budget shall review their standards for approving
remote electronic notarization platforms for use in this state, and
whether the number of approved remote electronic notarization
platforms are sufficient, at least every 4 years.
(5) A notary public may perform a notarial act using a remote
electronic notarization platform if either of the following is met:
(a) The notary public makes all applicable determinations
under section 25 according to personal knowledge or satisfactory
evidence, performance of the notarial act complies with section 27,
and the notary public does not violate section 31 in the
performance of the notarial act.
(b) The notary public, through use of the remote electronic
notarization platform, personal knowledge, or satisfactory
evidence, is able to identify the record before the notary public
as the same record presented by the individual for notarization.
(6) The notary public shall not record by audio or visual
means a notarial act performed using a remote electronic
notarization platform, unless the notary public discloses to the
person that requested the notarial act that an audio or visual
recording is being made and how the recording will be preserved,
and the person consents or has previously consented to the
recording. A notary public may refuse to conduct a notarial act
using a remote electronic notarization platform if the person that
requested the notarial act objects to an audio or visual recording
of the notarial act.
(7) If a notary public performs notarial acts using a remote
electronic notarization platform, the notary public shall maintain
a journal that records, at a minimum, each of those notarial acts.
A notary public shall maintain only 1 journal for the recording of
notarial acts and must keep the journal either as a tangible,
permanent bound register or in a tamper-evident, permanent
electronic format. A notary public shall retain the journal for at
least 10 years after the performance of the last notarial act
recorded in it. If a notary public is not reappointed, or his or
her commission is revoked, the former notary public shall inform
the secretary of state where the journal is kept or, if directed by
the secretary, shall forward the journal to the secretary or a
repository designated by the secretary.
(8) A notary public shall make an entry in a journal
maintained under subsection (7) contemporaneously with performance
of the notarial act, and the entry must include, at a minimum, all
of the following:
(a) The date, time, and nature of the notarial act.
(b) A description of the record, if any.
(c) The full name and address of each individual for whom the
notarial act is performed.
(d) If the identity of the individual for whom the notarial
act is performed is based on personal knowledge, a statement to
that effect. If the identity of the individual for whom the
notarial act is performed is based on satisfactory evidence, a
brief description of the method of identification and the
identification credential presented, if any, including the date of
issuance and expiration for the credential.
(e) The fee charged, if any, by the notary public.
(9) An entry made in a journal maintained by a notary public
under subsection (7) must also reference, but shall not itself
contain, any audio or visual recording of a notarial act performed
using a remote electronic notarization platform. Subject to
subsection (1), a notary public must retain an audio or visual
recording of a notarial act for at least 10 years after the
performance of the notarial act.
(10) A notary public may designate a custodian to do any of
the following:
(a) Maintain the journal required under subsection (7) on his
or her behalf.
(b) Retain an audio or visual recording of a notarial act
under subsection (9) on his or her behalf. If an audio or visual
recording of a notarial act is transferred to a custodian to hold
on behalf of the notary public, the journal entry must identify the
custodian with sufficient information to locate and contact that
custodian.
(11) A notarial act performed using a remote electronic
notarization platform under this section that otherwise satisfies
the requirements of this act is presumed to satisfy any requirement
under this act that a notarial act be performed in the presence of
a notary public.
(12) As used in this section:
(a) "Credential analysis" means a process or service by which
a third party affirms the validity of an identity document
described in section 25(6)(c) through a review of public and
proprietary data sources conducted remotely.
(b) "Identity proofing" means a process or service by which a
third party provides a notary public with a reasonable means to
verify the identity of an individual through a review of personal
information from public or proprietary data sources conducted
remotely.
(c) "Remote electronic notarization platform" means any
combination of technology that enables a notary to perform a
notarial act remotely; that allows the notary public to communicate
by sight and sound with the individual for whom he or she is
performing the notarial act, and witnesses, if applicable, by means
of audio and visual communication; and that includes features to
conduct credential analysis and identity proofing.
Sec. 27. (1) A notary public shall place his or her signature
on every record upon which he or she performs a notarial act. The
notary public shall sign his or her name exactly as his or her name
appears on his or her application for commission as a notary
public.
(2) On each record that a notary public performs a notarial
act and immediately near the notary public's signature, as is
practical, the notary public shall print, type, stamp, or otherwise
imprint mechanically or electronically sufficiently clear and
legible to be read by the secretary and in a manner capable of
photographic reproduction all of the following in this format or in
a similar format that conveys all of the same information:
(a) The name of the notary public exactly as it appears on his
or her application for commission as a notary public.
(b) The statement: "Notary public, State of Michigan, County
of __________.".
(c) The statement: "My commission expires __________.".
(d) If performing a notarial act in a county other than the
county of commission, the statement: "Acting in the County of
__________.".
(e) The date the notarial act was performed.
(f) If applicable, whether the notarial act was performed
electronically or performed using a remote electronic notarization
platform under section 26b.
(3) A notary public may use a stamp, seal, or electronic
process that contains all of the information required by subsection
(2). However, the stamp, seal, or electronic process shall not be
used in a manner that renders anything illegible on the record
being notarized. An embosser alone or any other method that cannot
be reproduced shall not be used.
(4) The illegibility of the statements required in subsection
(2) does not affect the validity of the transaction or record that
was notarized.
Sec. 54. This act modifies, limits, and supersedes the
electronic signatures in global and national commerce act, 15 USC
7001 to 7031, but does not modify, limit, or supersede section
101(c) of that act, 15 USC 7001(c), or authorize electronic
delivery of any of the notices described in section 103(b) of that
act, 15 USC 7003(b).
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
