Study Committee on
Revision of the Law on Notarial Acts
Stakeholders’ Meeting
Revised Notes
Attendance: Patricia Brumfield Fry, Chair of the National
Conference of Commissioners on Uniform State Laws [NCCUSL] Study Committee on
Revision of the Law on Notarial Acts, John Sebert, NCCUSL Executive Director,
Dale Higer, Division Chair for Study Committee, Haley Haynes and Ozie
Stallworth, both from Office of Secretary of State for North Carolina,
representing National Association of Secretaries of State (NASS) and Notary
Public Administrators (NPA), Daniel “Daz” Greenwood of MIT/civics.com, Joan
Decker, City of Philadelphia Records, Lenore Marema, Surety & Fidelity
Association of America, Marc L. Aronson, United States Notary Association
[USNA], Bettie Johnson, Boone County Missouri Recorder of Deeds, representing
IACREOT, David Ewan, New Jersey Land Title Association and Property Records
Industry Association (PRIA), Kathy Sachs, Office of Secretary of State for
Kansas and representing NASS and NPA, Kelly Romeo, American Land Title
Association (ALTA), Bill Anderson, National Notary Association (NNA), L. H.
Wilson, American Bankers Association, Carmelo D. Bramante, CDBConsultancy,
representing PRIA, John L. Jones, ArionZoe Corp., representing ALTA. Participating via teleconference were Frank
Daykin and Lawrence Klemin, NCCUSL Study Committee members, Carol Fischer,
Bridget Guth and Brenda Rieke, each from Office of Secretary of State for
Missouri, Tom Wrosch, Office of Secretary of State for Oregon, Rockne Clarke,
County of Tuscarawas, Ohio, Martha Brown, Office of Governor’s General Counsel,
Harrisburg, Pennsylvania, Anita Brenneman, CNA Surety Co., Steve McDonald,
Lancaster County Pennsylvania Recorder of Deeds, Mike Smith, Georgia Superior
Court Clerks’ Cooperative Authority, Timothy R. Poulin, Office of the Secretary
of State of Maine, Thomas Wrosch, Office of the Secretary of State of Oregon,
John Messing, representing the American Bar Association Section on Science and
Technology, Kay Wrucke, Recorder of Martin County, Minnesota and Carol
Foglesong, Assistant Comptroller, Records Administration Division, Orange
County Comptroller’s Office, Florida, jointly representing the National
Association of County Recorders, Election Officials and Clerks.
The
Chair introduced John Sebert, Executive Director of the National Conference of
Commissioners on Uniform State Laws, who introduced NCCUSL to the participants
and explained the function of the Study Committee and this Stakeholders’ Meeting. After describing the procedure followed by
NCCUSL when drafting proposed uniform laws, the Chair noted that the purpose of
this Stakeholders’ Meeting was to assist the Study Committee in determining
what report to make to the NCCUSL leadership concerning the need for a uniform
act governing notaries public, the scope of any such uniform act, and whether
or not such an act would have a substantial likelihood of widespread
enactment.
The
Chair asked the participants first to turn to issues which have arisen relating
to the laws governing notaries.
Participants noted that resident aliens often need to use notaries for
purposes governed by the law of other nations and that there is confusion
concerning the role of notaries, both amongst officials of other nations and
amongst resident aliens. There is a lack
of understanding of the differing roles of notaries in civil law countries
versus common law countries. With
respect to domestic laws, it was noted that there are great differences from
state to state concerning which acts are authorized, ranging from such standard
acts as witnessing signatures or taking oaths to such things as calling town
meetings or performing marriages. In all
states, documents transferring interests in real property must be notarized; in
some notarizations are required in connection with obtaining certificates of
title for motor vehicles. Similarly,
there are differences amongst the states regarding embossing seals,
rubber-stamped images of seals, information to be contained within seals, etc. This causes confusion when officials of other
states are asked to recognize notarial acts.
On behalf of the
National Notary Association (NNA), Mr. Anderson
advised that the organization had previously sent a letter to NCCUSL opposing
revision of the Uniform Law on Notarial Acts (ULONA). That letter noted that the 1982 uniform act
was designed to address matters
related to interstate commerce and particularly cross-border recognition of
notarial acts. It did not address
additional issues such as the qualifications of notaries. In addition, NNA takes the position that the provisions of
the federal Electronic Signatures in Global and National Commerce Act (E-Sign)
and the Uniform Electronic Transactions Act (UETA) are sufficient to enable
notaries to act with respect to electronic records. Finally, NNA believes that a two-class
system of notarial acts, one for paper records and the other for electronic
records, would be contrary to the
purpose of ULONA, which was to further cross-border recognition of notarial
acts.
Turning
to the duties of notaries, it was remarked that some had proposed that notaries
might identify signers and witness acts without requiring the presence of the individual
before the notary. There was consensus
that the fundamental act of notarizing signatures required, and should require,
a personal appearance of the signer before the notary. Concerns were expressed regarding the
notary’s function of assuring that signatures are voluntary and knowing acts
and several suggested that notaries should receive training concerning
acceptable or reasonable means of identifying signers, including the use of
online or machine resources.
Participants
further noted issues concerning the obligation to keep journals and proper contents
of journals, bonding requirements, discipline of commissioned notaries,
penalties and/or remedies for improper acts, whether by notaries or by third
parties masquerading as notaries, and with the provisions of the federal Real
ID Act. Additional issues involved the
ability to confirm the authority of notaries and recordkeeping obligations.
At
the request of the Chair, and after a participant pointed out that there
probably was general consensus concerning what issues existed, the participants
were polled on their views concerning issues which needed to be addressed. This discussion identified the following
areas:
Appointment,
including
Eligibility to serve
Minimum standards
Training,
including who should conduct the training and ability to outsource,
Classes
Testing
Auditing of performance
of duties
Retesting
Fees and appointment process
Bonding
Commissioning requirements,
including issuing seals or other tokens and oaths
Responsibilities
of notaries, including
Identification
standards/practices
Notarization of electronic records
Journals and recordkeeping
Formalities for notarial act
Standard forms for
jurats, etc.
Ethical standards, including
witnessing relatives’ signatures and conflicts of interest
Reasonable care standard
Satisfactory evidence
Disabled signers
Accountability of notaries
Fees
Role/responsibility
of those relying on or confronting notarized signatures
Notarizing
electronic records
Responsibility of notary [securing
integrity of record?]
Biometrics
Should
there be special requirements/training before authority to notarize electronic
records?
Are
issues/questions related to security or integrity of record or to signatures?
Limits
imposed by E-Sign and UETA
Miscellaneous
over-arching issues or problem areas
Lack of uniformity and resulting
confusion
Avoiding
imposition of undue or unreasonable costs on parties relying on notarial acts,
i.e. avoiding ‘friction’ to transactions
Funding
needs or shortfalls for public agencies
Turning to questions of enactability,
issues to be addressed include the appropriate means of dealing with the impact
of electronic technologies, the role of regulators and questions related to
content of regulations, as well as questions concerning which issues are
inherently local, and thus not suitable for uniform treatment. With the exception
of the representative of tThe National
Notary Association,NNA pointed
out that while it agreed with the statements made by many
of the participants concerning the need for revision of the law governing
notaries, most of those issues were outside the scope of ULONA.
those present expressed a desire for uniform
treatment. Daniel
Greenwood questioned whether the
timing was right for a uniform act, but opined that it was possible that the
issues would have ripened by the time a
project could be completed. Generally
those participating expressed a desire for uniform treatment of the issues and
points which had been raised. When
asked to identify those areas where local interests might outweigh any need for
uniformity, participants pointed only to such things as fees and funding
needs. They expressed a desire for
uniformity even with respect to eligibility to serve and appointment standards. A desire was expressed for a statement of
best practices for use by regulators as they create implementing regulations,
and the thought was expressed that it might be appropriate, assuming a drafting
process, for participants to work on best practices statement in tandem with
any uniform drafting process. It
wasOn the other hand, the American Bankers Association
pointed out that projects with the greatest prospect of enactability are those
with narrow, restrained scope. The National
Notary AssociationNNA
noted that an updated version of its model law is due for release later this
year. Others disagreed with the NNA
claim that a uniform law was not needed, asserting a strong preference for
uniform treatment of the subject and a more comprehensive treatment than is
found in ULONA.
Concerning the need for uniformity,
participants noted the following factors as favoring uniform treatment:
Existing flux in the
laws governing notaries, representatives of US Notary Association pointing to
more than five
dozen bills pending in various states;
Impact of the internet
and electronic commerce and particularly of increasing volumes of interstate
electronic commerce;
Existence of vendors
supplying notary equipment with scant oversight;
Issues related to
notarizing electronic records;
Increased and increasing
mobility raising cross-border issues and confusion;
Issues relating to
identity theft and the consequent need for assurances concerning the identity
of parties to transactions;
Real property fraud;
Great diversity in state
laws governing notaries and their actions.
It
was noted that ULONA had been enacted in only 11 states. The statement was made that a failure to move
forward with a drafting project constituted taking the position that the
existing state of affairs, including the great diversity in state laws
governing notaries, was sufficient.
Others stated they believed that the law governing notaries is “broken”
and that uniform treatment was desired and needed.
Several
participants expressed a desire to see the overall issues relating to the law governing
notaries addressed before issues relating to electronic records were resolved,
at least one expressing concern that the electronic issues could take over and
result in needed general reforms being left unattended. Others expressed their conviction that most
issues related to electronic notarization would be resolved with the general
reforms and the appropriate direction for any remaining issues would be
obvious. Attention to those core principles
would also enhance enactability.
Representatives of the National Association of Secretaries of State
expressed the opinion that they would support a drafting project, particularly
if it was consistent with the standards it issued last year. The commercial need for cross-border
uniformity and reduced “friction” in transactions also was repeated.