Bill S.681

SENATE DOCKET, NO. 1200 FILED ON: 1/18/2013

SENATE . . . . . . . . . . . . . . No. 681

By Ms. Creem, a petition (accompanied by bill, Senate, No. 681) of Cynthia S. Creem for legistlation to regulate notaries public to protect consumers. The Judiciary.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 690 OF 2011-2012.]

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act regulating notaries public to protect consumers..

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 222 of the General Laws is hereby amended by striking out section 1 and inserting in place thereof the following section:

Section 1. Justices of the peace and notaries public shall be appointed, and their commissions shall be issued for the commonwealth. They shall have jurisdiction throughout the commonwealth when acting under the sole authority of such a commission, and shall perform their duties subject to sections 8 to 27, inclusive. Unless otherwise expressly provided, they may administer oaths or affirmations in all cases in which an oath or affirmation is required, and take acknowledgments of deeds and other instruments.

SECTION 2. Said chapter 222 is hereby further amended by striking out sections 8 and 8A and inserting in place thereof the following section:

Section 8. (a) When taking acknowledgment of any instrument or administering an oath with relation to an instrument filed in court, a justice of the peace, notary public or other person duly authorized shall print or type his name directly below his signature and affix thereto the date of the expiration of his commission in the following language: “My commission expires ______.”

(b) A notary shall keep an official notarial seal or stamp that shall be the exclusive property of the notary, and a notary shall not permit another to use such notarial seal or stamp. A notary public shall obtain a new seal or stamp upon renewal of his commission, upon receipt of a new commission, receives a new commission, or if he changes his name. The notarial seal or stamp shall include: (i) the notary public's name exactly as indicated on the commission; (ii) the words "notary public," "Commonwealth of Massachusetts" or "Massachusetts," (iii) the date of the expiration of the commission in the following language: “My commission expires ____”; and (iv) a facsimile of the great seal of the commonwealth. Whenever a notarial seal that requires ink is employed, black ink shall be used. The requirements of this subsection shall be satisfied by using a stamp and a seal that, together, include all of the information herein required. Failure to comply with this section shall not affect the validity of any instrument or the record thereof.

SECTION 3. Section 11 of said chapter 222 is hereby amended by inserting after the word “dependents,” in line 2, the following words: or members of the Massachusetts National Guard or other Reserve Component Commands when conducting mobilization exercises and Soldier Readiness Processing.

SECTION 4. Said chapter 222 is hereby further amended by striking out section 12 and inserting in place thereof the following section:

Section 12. Notwithstanding section 23 or any other general law, rule, regulation or order to the contrary, a notary public who is an attorney or who is employed by an attorney shall not be required to maintain a journal of notary transactions.

SECTION 5. Chapter 222 is hereby further amended by adding the following 15 sections:

Section 13. For the purposes of this chapter the following words shall have the following meanings:

"Acknowledgment," a notarial act in which an individual, at a single time and place appears, in person, before a notary public and presents a document; is identified by the notary public through satisfactory evidence of identity and who indicates to the notary public that the signature on the document before the notary was voluntarily affixed by the individual for the purposes stated within the document and, if applicable, that the individual was authorized to sign in a particular representative capacity.

"Affirmation," a notarial act, or part thereof, that is legally equivalent to an oath and in which an individual, at a single time and place appears, in person, before the notary public is identified by the notary public through satisfactory evidence of identity and who makes a vow of truthfulness or fidelity under the penalties of perjury without invoking a deity.

"Copy certification," a notarial act in which a notary public is presented with a document; copies or supervises the copying of the document using a photographic or electronic copying process, compares the original document to the copy and determines that the copy is accurate and complete.

"Credible witness," an honest, reliable and impartial person who personally knows an individual appearing before a notary and who takes an oath or affirmation before the notary to vouch for that individual's identity.

"Journal of notarial acts" or "journal," a permanently bound book that creates and preserves a chronological record of notarizations performed by a notary public.

"Jurat," a notarial act in which an individual, at a single time and place appears, in person, before a notary public and presents a document, is identified by the notary public through satisfactory evidence of identity, signs the document in the presence of the notary public and takes an oath or affirmation before the notary vouching for the truthfulness or accuracy of the signed document.

"Notarial act" or "notarization," any act that a notary public is empowered to perform.

"Notary public" or "notary," any person commissioned to perform official acts pursuant to Article IV of the Articles of Amendment of the Constitution of the commonwealth.

"Oath," a notarial act, or part thereof, that is legally equivalent to an affirmation and in which an individual, at a single time and place, appears in person before a notary, is identified by the notary through satisfactory evidence of identity and takes a vow of truthfulness or fidelity under the penalties of perjury by invoking a deity. "Official misconduct," a violation of sections 14 to 25, inclusive, or any other general or special law in connection with a notarial act or a notary’s performance of an official act in a manner found to be grossly negligent or against the public interest.

"Personal knowledge of identity," familiarity with an individual resulting from interactions with that individual over a period of time sufficient to ensure beyond doubt that the individual has the identity claimed.

"Principal," a person whose signature is notarized or a person taking an oath or affirmation before a notary.

"Regular place of work or business," a place where an individual spends a substantial

portion of his working or business hours.

"Satisfactory evidence of identity," identification of an individual based on: (i) at least 1 current document issued by a Federal or state government agency bearing the photographic image of the individual’s face and signature; (ii) the oath or affirmation of a credible witness unaffected by the document or transaction who is personally known to the notary and who personally knows the individual; or (iii) identification of an individual based on the notary public's personal knowledge of the identity of the principal. For a person who is not a United States citizen, "satisfactory evidence of identity" shall mean identification of an individual based on a valid passport, or another government-issued document evidencing the individual's nationality or residence and which bears a photographic image of the individual's face and signature.

“Signature witnessing,” a notarial act in which an individual, at a single time and place, appears, in person, before a notary public and presents a document, is identified by the notary public through satisfactory evidence of identity and signs the document in the presence of the notary public.

Section 14. (a) A person qualified for a notary public commission shall be at least 18 years of age, reside legally or have a regular place of work or business within the commonwealth and be a United States citizen or have permanent residency status in the United States. (b) In the governor's discretion, an application for appointment, reappointment or renewal of a commission may be denied based on: (i) submission of an official application containing a material misstatement or omission of fact;

(ii) the applicant's felony conviction or misdemeanor conviction that resulted in a prison sentence;

(iii) the applicant's conviction of a misdemeanor that resulted in a sentence to probation or a fine, or conviction for violating paragraph (a) of subdivision (1) of section 24 of chapter 90 or subsection (a) of section 8 of chapter 90B;

(iv) the applicant's admission to sufficient facts to warrant a finding of guilt of any offense;

(v) a finding or admission of responsibility or liability against the applicant in a civil action based on the applicant’s fraud or deceit;

(vi) revocation, suspension, restriction or denial of a notarial commission or professional licensure by this or any other state; or

(vii) any other reason, including for official misconduct, that, in the governor's discretion, would render the applicant unsuitable to hold a commission as a notary public.

Section 15. A person commissioned as a notary public may perform notarial acts in any part of the commonwealth for a term of 7 years, unless the commission is earlier revoked or the notary resigns. Section 16. (a) A notary public may perform the following notarial acts: acknowledgments; oaths and affirmations; jurats; signature witnessings; copy certifications; issuance of summonses for witnesses as set forth in section 1 of chapter 233; issuance of subpoenas; and witnessing the opening of a bank safe, vault or box as set forth in section 32 of chapter 167.

(b) A notary shall take the acknowledgment of the signature or mark of persons acknowledging for themselves or in any representative capacity by using substantially the following form:

“On this ____ day of ___________, 20__, before me, the undersigned notary public, personally appeared ________________________ (name of document signer), proved to me through satisfactory evidence of identification, which were _______________________, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that (he) (she) signed it voluntarily for its stated purpose.

(as partner for ____________, a partnership)

(as ____________ for ______________, a corporation)

(as attorney in fact for ________________, the principal)

(as ___________ for _______________, (a) (the) _________________)

_________________ (official signature and seal of notary)”

(c) A notary shall use a jurat certificate in substantially the following form in notarizing a signature or mark on an affidavit or other sworn or affirmed written declaration:

“On this ____ day of ___________, 20__, before me, the undersigned notary public, personally appeared ________________________ (name of document signer), proved to me through satisfactory evidence of identification, which were _______________________, to be the person who signed the preceding or attached document in my presence, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of (his) (her) knowledge and belief.

_________________ (official signature and seal of notary)”

(d) A notary shall witness a signature in substantially the following form in notarizing a signature or mark to confirm that it was affixed in the notary's presence without administration of an oath or affirmation:

_________________ (official signature and seal of notary)”

(e) A notary shall certify a copy by using substantially the following form:

“On this ____ day of ___________, 20__, I certify that the (preceding) (following) (attached) document is a true, exact, complete, and unaltered copy made by me of __________________ (description of the document), presented to me by ______________________.

_________________ (official signature and seal of notary)”

(f) A notary public may certify the affixation of a signature by mark on a document presented for notarization if:

(i) the principal affixes the mark in the presence of the notary public and of 2 witnesses unaffected by the document;

(ii) both witnesses sign their own names beside the mark;

(iii) the notary writes below the mark: “Mark affixed by (name of signer by mark) in the presence of (names and addresses of witnesses) and undersigned notary;” and

(iv) the notary public notarizes the signature by mark through an acknowledgment, jurat or signature witnessing.

(g) A notary public may sign the name of a principal who is physically unable to sign or make a mark on a document presented for notarization if:

(i) the principal directs the notary to do so in the presence of 2 witnesses who are unaffected by the document;

(ii) the principal does not have a demeanor that causes the notary public to have a compelling doubt about whether the principal knows the consequences of the transaction requiring the notarial act;

(iii) in the notary public’s judgment, the principal is acting of his own free will;

(iv) the notary public signs the principal’s name in the presence of the principal and the witnesses;

(v) both witnesses sign their own names beside the signature;

(vi) the notary public writes below the signature: “Signature affixed by notary public in the presence of (names and addresses of principal and two witnesses)"; and

(vii) the notary public notarizes the signature through an acknowledgment, jurat or signature witnessing.

(h) This section shall not require a notary public to use the forms set forth above if another form of acknowledgment, jurat, signature witnessing or copy certification is required or allowed by any court rule or court form; any general or special law, including, but not limited to, section 42 of chapter 183, or the forms set forth in the appendix to chapter 183, or section 2 of chapter 192, any Federal statute, or any regulation adopted pursuant to any such provision or law.

(i)This section shall not require a notary public to use the forms set forth above if

the form of acknowledgment, jurat, signature witnessing or copy certification of a document contains an alternative form from another state if the document is to be filed or recorded in, or governed by the laws of, that other state.

(j) This section does not require a notary public to use the forms set forth above if the

form of acknowledgment, jurat, signature witnessing, or copy certification appears on a printed form that contains an express prohibition against altering such form.

Section 17. (a) A notary public shall not perform a notarial act if:

(i) the principal is not in the notary’s presence at the time of notarization;

(ii) the principal is not identified by the notary through satisfactory evidence of identity;

(iii) the principal has a demeanor that causes the notary public to have a compelling doubt about whether the principal knows the consequences of the transaction or document requiring the notarial act;

(iv) in the notary public’s judgment, the principal is not acting of his own free will;

(v) the notary public is a party to or is named in the document that is to be notarized, unless: (A) a notary public is named in a document for the sole purpose of receiving notices relating to the document; or (B) a notary public is licensed as an attorney in the commonwealth, or is employed by an attorney so licensed, and is named as an executor, trustee or in any fiduciary capacity in a document;

(vi) the notary public will receive as a direct result of the notarial act any commission, fee, advantage, right, title, interest, cash, property or other consideration exceeding the maximum fees provided in section 24, or has any financial interest in the subject matter of the document; provided, however, that this section shall not preclude a notary public who is licensed as an attorney in the commonwealth, or is employed by an attorney so licensed, from notarial acts relative to any document in connection with which the attorney receives a legal fee for professional legal services.

(vii) the notary public is a spouse, domestic partner, parent, guardian, child or sibling of the principal, including in-law, step or half relatives, except if a principal witnesses a will or other legal document prepared by the notary public who is an attorney licensed in the commonwealth.

(b) A notary public shall not refuse to perform a notarial act solely based on the principal's race, advanced age, gender, sexual orientation, religion, national origin, health, disability or status as a non-client or non-customer of the notary public or the notary public’s employer.

(c) A non-attorney notary public shall not influence a person either to enter into or avoid a transaction involving a notarial act by the notary public, except that the notary public may provide assistance relating to that transaction, if he or she is duly qualified, trained, or acting pursuant to a standard or practice recognized in a particular industry or professional field in selecting, drafting or completing a certificate or other document related to a matter within such industry or field.

(d) A notary public shall not execute a certificate containing information known or believed by the notary public to be false.

(e) A notary public shall not affix an official signature or seal on a notarial certificate that is incomplete. (f) A notary public shall not provide or send a signed or sealed notarial certificate to another person with the understanding that it will be completed or attached to a document outside of the notary public’s presence, provided that in connection with a commercial, non-consumer transaction, a notary public may deliver a signed, sealed, or signed and sealed notarial certificate to an attorney with the understanding that: (i) the attorney will attach the certificate to a document outside of the notary’s presence; (ii) the attorney will hold such notarial certificate in escrow; and (iii) the attorney informs the notary public that the attorney will obtain the approval of the principal or principals involved before attaching the certificate to the document.

(g) A notary public shall not notarize a signature on a blank or incomplete document, except as provided in subsection (f).

(h) A notary public shall not perform any official act with the intent to deceive or defraud.

(i) A notary public shall not use the term "notario" or "notario publico" or any equivalent non-English term in any business card, advertisement, notice or sign.

Section 18. (a) No notary public shall advise clients, offer legal advice or represent or advertise himself or herself as a lega1 specialist or consultant unless the individual is an attorney licensed to practice law in the commonwealth. No notary public shall state or imply in any communication that he can or will obtain special favors from or has special influence with any government agency. No notary public who is not licensed to practice law in the commonwealth shall make a literal translation of his or her status as “licensed” or as a “notary public” into a language other than English without regard to the true meaning of the word or phrase in that language, or use any other term that implies that the notary public is an attorney so licensed, in any document, including an advertisement, stationery, letterhead, business card, or other written or broadcast material describing the notary public or his services.

(b) A notary public who is not an attorney licensed to practice law in the commonwealth:

(i) shall not offer legal advice or advise clients as to the immigration status thereof, secure or attempt to secure supporting documents, including, but not limited to, birth certificates, necessary to complete a client’s immigration forms or submit completed immigration forms on a client’s behalf to any governmental agency;

(ii) may translate questions presented on an immigration form for another person and may complete those forms at the explicit direction of such other person only if translation of such other person’s answers is necessary; and

(iii) prior to providing services of any kind related to an immigration matter, or any matter that that could influence or affect a person’s legal status under immigration law, shall provide a client with a written statement that states “I am not an attorney licensed to practice law. I may not give you legal advice or advise you about immigration policies or procedures. You should seek the advice of a qualified attorney to assist you with any legal questions or with questions about legal status under immigration law.”

(i) an attorney licensed to practice law in any state or territory of the United States or in any foreign country when authorized by the supreme judicial court, to the extent the attorney renders immigration assistance service in the course of his practice as an attorney.

(ii) a paralegal, legal intern or law student employed by an attorney so licensed and rendering immigration assistance in the course of the intern’s or student’s employment; and

(iii) any organization employing or desiring to employ any person not a citizen of the United States, if the organization, its employees or agents provide advice or assistance in immigration-related matters to non-citizen employees or potential employees without compensation from the individuals to whom such advice or assistance is provided.

(d) A non-attorney notary public shall not engage in the practice of law. This subsection shall not preclude a notary public who is duly qualified, trained or experienced in a particular industry or professional field from selecting, drafting or completing a certificate or other document related to a matter within that industry or field.

(e) A notary public who is not an attorney licensed to practice law in the commonwealth or who is not employed by an attorney so licensed, shall not conduct a real estate closing and shall not act as a real estate closing agent. A notary public who is employed by an attorney so licensed may notarize a document in conjunction with a real estate closing conducted by the attorney. A notary public who is employed by a lender may notarize a document in conjunction with the closing of his employer's real estate loans.

(f) This section shall apply to any person who employs, contracts with or otherwise uses the services of a notary public with knowledge or reason to know of conduct that is in violation of this section.

Section 18A (a) The attorney general or district attorney may prosecute any person committing a violation under this chapter. Any person convicted of committing such violation shall be punished for a first offense by a fine of not more than $1,000 or by imprisonment in a jail or house of correction for not more than 6 months, or by both such fine and imprisonment, and for subsequent offenses by a fine of not more than $5,000 or by imprisonment in a jail or house of correction for not more than one year, or by both such fine and imprisonment. The attorney general or district attorney may file a petition for injunctive relief against any person who violates this chapter. If the attorney general, district attorney or the state secretary has cause to believe that, as a result of official misconduct, a person holding the office of notary public is unsuitable to hold that office, the attorney general, district attorney or the state secretary shall provide notice to the governor of such official misconduct. Any conviction based on a violation of this chapter shall be grounds for the revocation of a notary’s appointment. If the court finds that a person so convicted either knew or should have known his conduct to be in violation of this chapter, the court may require such person to pay to the commonwealth a civil penalty of not more than $5,000 for each such violation and also may require the person to pay the reasonable costs of investigation and litigation of such violation, including reasonable attorneys’ fees.

(b) A person having an interest or right that is or may be adversely affected by a violation of section 18 may initiate an action for private remedies and, if the attorney general or district attorney has not done so, for injunctive relief. Such person may be awarded actual damages and, if the court finds that person against whom the action is brought either knew or should have known his conduct to be in violation of section 18, punitive damages of not more than $5,000 per violation, and attorney’s fees and court costs.

(d) It shall not be a defense in an action pursuant to this section that the conduct that is the subject of the action, in whole or in part, occurred primarily or substantially outside the commonwealth.

Section 19. (a) Any notary public who is not an attorney shall post signs at his or her place of business, setting forth information in English and in every other language the person provides or offers to provide services. Each language shall be on a separate sign. Signs shall be posted in a conspicuous location where the signs will be visible to customers. Each sign shall be at least 12 inches by 20 inches with boldface type or print that prominently states the following information:

(i) The individual’s full name and address;

(ii) The statement “I am not an attorney licensed to practice law and may not give legal advice or accept fees for legal advice”; and

(iii) The statement “I am not accredited to represent you before the United States Bureau of Citizenship and Immigration Services and the Immigration Board of Appeals.”

(b) Prior to providing services related to an immigration matter, a notary public shall provide the client with written disclosure in English and the client’s primary language. The disclosure shall include the notary public’s full name, address and telephone number.

Section 20. A notary shall perform any notarial act for any person requesting such an act who tenders the fee set forth in section 41 of chapter 262, unless:

(i) the notary public knows or has good reason to believe that the notarial act or the associated transaction is unlawful;

(ii) the principal has a demeanor that causes the notary public to have a compelling doubt about whether the principal knows the consequences of the transaction or document requiring the notarial act;

(iii) the act is prohibited by any provision of this chapter or other applicable law; or

(iv) the number of notarial acts requested practicably precludes completion of all acts

at once, in which case the notary public shall arrange for later completion of the remaining acts.

Section 21. (a) A notary public has neither the duty nor the authority to investigate, ascertain, or attest to the lawfulness, propriety, accuracy, or truthfulness of a document or transaction involving a notarial act. (b) Except as may be required by the office of the state secretary for the issuance of an apostille,

(1) Failure of a document to contain the forms of acknowledgment, jurat, signature witnessing, or copy certification set forth in section 16, or otherwise to comply with the requirements set forth in sections 8 through 24 shall not have any effect on the validity of the underlying document, or the recording thereof, and

(2) Failure of a document to contain the forms of acknowledgment, jurat, signature witnessing, or copy certification set forth in section 16 shall not be the basis of a refusal to accept the document for filing, recordation, registration, or acceptance by a third party.

Section 22. A non-attorney notary public who advertises notarial services in a language other than English shall include in the advertisement, notice, letterhead, or sign the following, prominently displayed in the same language the statement: “I am not an attorney and have no authority to give advice on immigration or other legal matters.”

Section 23. (a) A notary who is not employed by a governmental entity shall keep, maintain, protect, and provide for lawful inspection a chronological official journal of notarial acts that is a permanently bound book with numbered pages, except as otherwise provided in this section.

(b) A notary public shall keep no more than one active journal at the same time.

administration of an oral oath, the notary public shall record in the journal at the time of the notarization the following:

(1) the date and time of the notarial act, proceeding, or transaction;

(2) the type of notarial act;

(3) the type, title, or a description of the document, transaction or proceeding. If multiple documents are signed by the same principal in the course of a transaction or during a single date, a single journal entry shall be sufficient;

(4) the signature, printed name, and address of each principal and witness, except that if a principal or witness tells the notary that he or she is a battered person, the notary shall make a note in the journal that the person's address shall not to be subject to public inspection, and

(5) description of the satisfactory evidence of identity of each person including:

(i) a notation of the type of identification document, the issuing agency, its serial or identification number, and its date of issuance or expiration, provided that if the identification number on the document is the person's Social Security number, instead of including the number, the notary shall write in the words "Social Security number" or the acronym "SSN"; or

(ii) a notation if the notary identified the individual on the oath or affirmation of a credible witness or based on the notary's personal knowledge of the individual;

(iii) the fee, if any, charged for the notarial act, and

(iv) the address where the notarization was performed.

(d) A notary public shall not record a Social Security or credit card number in the journal.

(e) A notary public shall record in the journal the reason for not completing a notarial act requested by a principal.

(f) A journal shall not be required for a notary public who is an attorney admitted to practice law in any jurisdiction or who is employed by such attorney. If such attorney or person so employed elects to maintain such journal, the provisions of this section shall not be construed in any way to impair or infringe on the attorney-client privilege or the attorney work product doctrine.

(g) Except as provided in subsection (f), a journal may be examined without restriction by a law enforcement officer in the course of an official investigation, subpoenaed by court order, or surrendered at the direction of the secretary of the commonwealth. Nothing in this section shall prevent a notary public from seeking appropriate judicial protective orders.

(h) A notary public shall maintain and safeguard a journal and all other notarial records and shall surrender or destroy them only as directed by law, court order, regulation or at the direction of the state secretary.

(i) When not in use, a journal shall be kept in a secure area under the exclusive control of the notary public, and shall not be used by any other notary nor surrendered to an employer upon termination of employment.

Section 24. Maximum fees charged by a notary public shall be set by the secretary of the commonwealth, provided, however, that no fee may be charged to notarize any signature on an absentee ballot identification envelope or other voting materials, or on any application or claim by a United States military veteran for a pension, allotment, allowance, compensation, insurance, or other veteran’s benefit.

Section 25. When a notary commission expires, is resigned, or is revoked, the notary shall as soon as reasonably practicable, destroy or deface all notary seals and stamps so that they may not be used, and shall retain the notarial journal and records for 7 years after the date of expiration, resignation, or revocation.

Section 26. Within 10 days after the change of a notary public's residence, business or mailing address, or name, the notary shall send to the state secretary signed notice of the change, providing both the old and new information.

Section 27. A notary public's commission may be revoked for official misconduct as defined in section 13, or for other good cause, as determined by the Governor with the consent of the Governor's Council as set forth in Article XXXVII of the Articles of Amendments to the Massachusetts Constitution.

SECTION 6.Chapter 262 of the General Laws is hereby amended by striking section 41 and inserting in place thereof the following section:

Section 41. The maximum fees of notaries public shall be as provided in section 24 of chapter 222.

SECTION 7.This act shall apply to all commissions of notary public or justice of the peace authorized by chapter 222 of the General Laws, including commissions received or renewed before the effective date of this act.

Name:	District/Address:
Cynthia S. Creem	First Middlesex and Norfolk