NOTARY ACT 2005:NOTARY ACT 2005:THE LATEST NEWSTHE LATEST NEWS

(Last Updated 3(Last Updated 3--2323--06)06)

CHICAGO TITLE INSURANCE COMPANYCHICAGO TITLE INSURANCE COMPANY

TRANSITION RULES(§ 13, S.L. 2005-391)

• 12/1/05 New forms, requirements & penalties

• Existing commission, seal and instructor certifications are valid until expiration, resignation or revocation

• Re-commissioning only as otherwise due

“Current”Notary Public

GuidebookNinth Ed. 2004

Being Replaced –Estimate May-July 2006

(Chuck Szypszak @ UNC School of Government)

SECRETARY OF STATE’SNOTARY HOME PAGE

http://www.secretary.state.nc.us/notary/ThePage.aspx

COMMISSIONING REQUIREMENTSGS 10B-5, -6, -7 & -8

• Age 18 or legally emancipated• Reside or work in NC• Legally reside in US• Speak, read, write English• High school diploma or equiv• 6-hour course (other than

attorney)• Current Notary Public

Guidebook• Elected official recommendation

(unless county with > 15,000 notaries on Jan 1)

• No conviction/plea/nolocontendere to crime of dishonesty or moral turpitude

• No civil judgment for deceit• No official misconduct• No false advertising re

powers/authority• No Unauthorized Practice of Law• Exam (80% score) (not attorneys)• Oath of office @ Register of

Deeds within 45 days• NEW APPLICATION

INFORMATION– Employer– E-mail address– Social Security No.--last 4 digits

• $50 fee

RE-COMMISSIONINGGS 10B-11

• Every 5 years (expiration)• Application no more than 10 weeks before

expiration, up to 1 year after commission expiration• All commissioning requirements, including

application (except no additional class if prior to expiration)

• Exam – hopefully on-line– 80% score– n/a for attorneys

• Oath of office within in 45 days??? Elected Official ?????? 6-HOUR COURSE ???

EDUCATIONAL COURSES GS 10B-8

• Certified Instructors – GS10B-14• 6 hours for “paper” notary commission• Additional 3 hours for

e-notary commission• Within 3 months prior to

application• Procedures & Ethics

SEALGS 10B-36 & -37

In a “secure place accessible only by notary”

Not allow another person to use seal

Not surrender seal to employer

Must be delivered to Secretary of State at death or resignation/ revocation of commission

(GS 10B-55)

FAQ: Deliver to Secretary on change of

name or county

SEAL CONTENTSGS 10B-37 – “only”

(1) Notary's name exactly as commissioned(2) "Notary Public"(3) "County" or "Co." of commissioning (4) "North Carolina" or "NC“(5) Expiration date (optional, unclear if can be written)(6) Perimeter border visible when impressed

Per Secretary of State: NO graphics, stars, “official seal”, state sealNO inner borderline on circular seal

Notary

PublicOfficial Seal

Transition Rule

CAN Use

Current (pre-12/1/05) Seal

Until

Commission Expiration

SEALGS 10B-36(c)

Damaged or “incapable of affixing a legible image” notify (10 days)– Secretary of State – Register of Deeds

Theft or vandalism notify (10 days)– Secretary of State– Register of Deeds– Local Law Enforcement

DISQUALIFICATIONSGS 10B-20(c)

• Signer or subscribing witness not in notary’s presence– NOTE: Notary can complete notarial certificate outside

of signer’s presence• Unable to establish identity• Not clearly understand transaction consequences• Not clearly voluntary “free will”• Notary is signer or named (other than trustee of DOT)• Notary will receive commission, fee, right, title interest,

cash, property, or other consideration” (other than attorney fees, real estate broker, motor vehicle dealer or banker)

“Act”(Substance)

“Certificate”(Form)

SIGNATURE BY MARKGS 10B-20(d)

• Mark affixed in presence of notary

• Notary writes below mark: “Mark affixed by [name of signer] in presence of undersigned notary”

• Notarial act completed

PRINCIPAL PHYSICALLY UNABLE TO SIGN OR MAKE MARK

GS 10B-20(e)• Principal directs disinterested designee to sign • All in presence of

– Notary– Two witnesses ”unaffected” by the record

• Designee signs principal’s name• Two witnesses sign (near principal’s signature)• Notary writes below principal’s signature:

“Signature affixed by [designee] in presence of [names & addresses of witnesses & principal]”

• Notarial Certificate affixed

BLANK LINES IN ACKNOWLEDGMENTGS 10B-20(o)

Notary must “cross out or mark through all blank lines or spaces in the certificate.”Exception: blank lines or spaces in the notary certificate

form provided for in GS 47-43 indicating when and where a power of attorney is recorded if that recording information is not known to the notary at the time the notary completes and signs the certificate

However, failure to cross out or mark through blank lines or spaces in a notarial certificate:

• Not affect the sufficiency, validity, or enforceability of the certificate or the related record; and

• Not grounds for a register of deeds to refuse to accept a record for registration.

NON-ENGLISH CERTIFICATESGS 10B-22

• Notarial Certificate must be in English

• Notary can execute English certificate accompanying translation of certificate into another language.

NOTARIAL ACT – COMPONENTSGS 10B-20(b)

• Signature – in conformity with seal

• Legible name, typed or printed, near signature – Not embossed

• Seal – GS 47-2.2 if seal missing on out-of-state notary

• Expiration Date– Can be in seal but must replace @ recommissioning

REQUIREMENT:“PERSONAL APPEARANCE”

• Class I misdemeanor• “close physical proximity”• “freely see & communicate”• “exchange records back and forth”• New “Subscribing witness” proof / verification

A customer's physical presence is

absolutely necessary for notarization.

REQUIREMENT: IDENTITY GS 10B-3(17), (22), (5) & 10B-40(a)• “Personal knowledge of identity”

– Familiarity with individual– Interactions over a period of time– Eliminate every reasonable doubt

OR

• “Satisfactory Evidence” of identity– Federal, State, tribal photo id and either signature

or physical description (black & white copy)– Oath or affirmation of “credible witness” (honest,

reliable, impartial) personally known to notary andto signer

Other State or Federal Notarial ActsGS 10B-20(f) & (g) & GS 10B-40(e)

• Valid if complies with that jurisdiction’s laws, incl. U.S. military

• NOTE: Most major title companies have information about 50-state notarial laws and forms on their web sites

ntiweb.com

• NOTE: See G.S. 47-2.2 regarding missing seals w/re/to out of state notarial certificates

Notarial Certificate FormsGS 10B-40(b)

Other statutes with mandatory form still govern, such as:

• Self-proving will Ch. 31-11.6, • Powers of attorney 32A• Declaration of Desire for Natural

Death 90-321

Notarial Certificate Forms- IF no mandated form

New requirements (GS 10B-40)

OR

New forms (GS 10B-41, -42, or -43)

ORGS Ch. 47 forms (GS 47-37.1)

“as otherwise prescribed by law”

CAUTION: Chapter 47 forms

only include:

• Individual GS 47-38• Husband & wife GS 47-40• Corporation GS 47-41.01

GS 47-41.02• Attorney in fact for principal GS 47-43• Subscribing Witness GS 47-13.1

GS 47-12.2GS 47-43.2

• Proof of signature GS 47-43.3• Officer proof of signature GS 47-43.4

4 NOTARIAL ACTSGS 10B-20(a)

Acknowledgment

Oath or Affirmation

Jurat

Verification or Proof

NOTARIAL ACKNOWLEDGMENTREQUIREMENTS

GS 10B-40(b), 10B-41(a) or 10B-41(b)• State and county of acknowledgment• Name of principal who appeared• States (1) personal knowledge or (2) satisfactory

evidence of identity• Principal appeared, acknowledged signature on record

presented as his/her signature & voluntarily signed• Date of acknowledgment• Notary’s signature, seal/stamp and commission

expiration date• NOTE: Does not mention typed or printed name per

GS 10B-20(b)

SIMPLIFIED “GENERIC”NOTARY ACKNOWLEDGMENT

FORM GS 10B-41(a)________________ County, North Carolina

I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she voluntarily signedthe foregoing document for the purpose stated therein and in thecapacity indicated: name(s) of principal(s).

Date: __________________ Official Signature of NotaryNotary's printed or typed name, Notary Public

(Official Seal)My commission expires: _____________________

PROPOSED 18 NCAC 7A.0600http://www.sosnc.com/notarypublicact.pdf

SUBSCRIBING WITNESSVERIFICATION / PROOF

GS 10B-40(c), 10B-42(a) or 10B-42(b)(Compare: GS 47-13.1)

• State and county of verification or proof• Name of subscribing witness who appeared• States (1) personal knowledge or (2) satisfactory evidence of

identity• Names principal• Subscribing witness certified to notary under oath or by

affirmation that not named as party & no interest in transaction, signed record and either (1) witnessed principal sign or(2) witnessed principal acknowledge his/her signature

• Date of proof or verification• Notary’s signature, seal/stamp & commission expiration date• NOTE: Does not mention typed or printed name per

GS 10B-20(b)

VERIFICATION OR PROOF BY SUBSCRIBING WITNESS - GS 10B-42(a)

________________ County, North Carolina

I certify that name of subscribing witness personally appeared before me this day and certified to me under oath or by affirmation that he or she is not a named party to the foregoing document, has no interest in the transaction, signed the foregoing document as a subscribing witness, and either (i) witnessed [name of principal] (the principal) sign the foregoing document or (ii) witnessed the principal acknowledge the principal's signature on the already-signed document.

Date: ______________ Official Signature of NotaryNotary's printed or typed name, Notary Public

(Official Seal)My commission expires:

PROPOSED 18 NCAC 7A.0600http://www.sosnc.com/notarypublicact.pdf

OATH OR AFFIRMATIONGS 10B-40(d), 10B-43(a) or 10B-43(b)

• State and county of oath or affirmation• Name of principal who appeared• States (1) personal knowledge or (2) satisfactory

evidence of identity• Principal appeared, signed, certified under oath or

by affirmation as to truth of matters in record• Date of oath or affirmation• Notary’s signature, seal/stamp & commission

expiration date• NOTE: Does not mention typed or printed name per

GS 10B-20(b)

OATH OR AFFIRMATION -- GS 10B-43(a)________________ County, North Carolina

Signed and sworn to (or affirmed) before me this day by name of principal.

Date: __________________ Official Signature of NotaryNotary's printed or typed name, Notary Public

(Official Seal)My commission expires: __________________

OR________________ County, North Carolina

Sworn to (or affirmed) and subscribed before me this day by name of principal.

Date: __________________ Official Signature of NotaryNotary's printed or typed name, Notary Public

(Official Seal)My commission expires: __________________

PROPOSED 18 NCAC 7A.0600http://www.sosnc.com/notarypublicact.pdf

Jurat -- GS 10B-3(8)• For affidavit or deposition

• Must appear below the signature of principal

________________ County, North Carolina

Subscribed and sworn to before me this day.

Date: __________________ Official Signature of NotaryNotary's printed or typed name, Notary Public

(Official Seal)My commission expires: __________________

CHANGE OF NAME, ADDRESS OR COUNTYGS 10B-50 through 10B-53

• Change of address (home, business or mailing) or phone notify Secretary of State

• New name new seal, confirmation + appear before Register, at the time

• New county new seal, recommissioning + appear before Register in new county, at re-commissioning

• New name + New county new seal, recommissioning + appear before Register in new county, at the time

NOTIFICATION TO SECRETARY OF STATE WITHIN 45 DAYS OF CHANGE!!

CONFIRMATION OR RECOMMISSIONINGTO REGISTER OF DEEDS WITHIN 45 DAYS!!

RETURN SEAL!!!

PENALTIES – GS 10B-60

Class 1 misdemeanorCertificate information falseNotarial act after commission expiredor before taking oath of officeSigner did not personally appearNo personal identificationNotarial certificate not in English

Class 1 felony (for above) if knowingly false or fraudulent or with intent to commit fraud

Applies to Non-Notary Aiding and Abetting -- GS 10B-60(j)

JOURNAL RECOMMENDEDhttp://www.secretary.state.nc.us/notary/highlts.aspx

1. Date of the notarial act. 2. Type of notarial act: acknowledgment, oath

or affirmation, verification or proof. 3. Name or brief description of the document. 4. Party’s printed name, exactly as he or she signed the

document. 5. Party’s address. 6. Party’s signature. 7. Type of identification relied upon in identifying the party,

including the serial number, expiration date, date of birth, etc. If a credible person is used as an identification, include the name and address of the credible person.

8. Fee charged for the notary service. 9. Additional comments you consider important; for example, the

person is blind and you read the document to him.

ELECTRONIC NOTARIES (GS 10B-100 et seq.)

• Must comply with all “paper” notary commissioning & notarial act requirements

• Plus:– additional training (additional 3-hour course) - GS 10B-107– additional commissioning, with technology and device to be used,

e-mail address– Maintenance of e-device licensing & registration - GS10B-127– E-signature & e-seal only for notarial acts - GS 10B-125(a)– additional electronic filings and information with Sec of State– Destruction of e-signature & e-notary device upon expiration,

resignation or revocation– Delivery to Secretary of State of all notarial records on death of

notary - GS 10B-126(g)• Technology standards to be set by Secretary of State –

GS 10B-125• Secretary of State may require e-journal - GS 10B-126(e)