HB-5811, As Passed House, June 12, 2018

HB-5811, As Passed Senate, June 12, 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.

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appointment that was revoked, suspended, or canceled in this or any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.

(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.

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.

House Bill No. 5811 as amended June 12, 2018

Sec. 26b. (1) Beginning <<March 30>>, 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.

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.

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.

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 __________.".

(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.