By Ms. Tucker, a petition (accompanied by bill, Senate,
No. 1033) of Susan C. Tucker for legislation to regulate
notaries public to protect consumers and provide anti-fraud
protections.. The Judiciary. |
By Ms. Tucker, a petition (accompanied by bill, Senate,
No. 1033) of Susan C. Tucker for legislation to regulate
notaries public to protect consumers and provide anti-fraud
protections.. The Judiciary. |
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 adding the following caption and sections:
NOTARIES PUBLIC
Section 12. For the purposes of this section, the following words shall have the following meanings:
"Acknowledgment" shall mean a notarial act in which an individual, at a single time and place, appears in person before the notary public and presents a document; is identified by the notary public through satisfactory evidence of identity; and indicates to the notary public that the signature on the document was voluntarily affixed by the individual for the purposes stated within the document and, if applicable, that the individual had authority to sign in a particular representative capacity.
"Affirmation" shall mean a notarial act, or part thereof, that is legally equivalent to an oath 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 makes a vow of truthfulness or fidelity under the pains and penalties of perjury without invoking a deity.
"Copy certification" shall mean 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 document to the copy; and determines that the copy is accurate and complete.
"Credible witness" means an honest, reliable, and impartial person who personally knows an individual appearing before a notary and takes an oath or affirmation from the notary to vouch for that individual's identity.
"Journal of notarial acts" or "journal" shall mean a permanently bound book that creates and preserves a chronological record of notarizations performed by a notary public.
"Jurat" means a notarial act in which an individual, at a single time and place appears in person before the 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" and "notarization" shall mean any act that a notary public is empowered to perform under this executive order.
"Notary public" or "notary" shall mean any person commissioned to perform official acts pursuant to Article IV of the Articles of Amendment of the Massachusetts Constitution.
"Oath" shall mean a notarial act, or part thereof, which is legally equivalent to an affirmation, and in which an individual, at a single time and place, appears in person before the notary; is identified by the notary through satisfactory evidence of identity; and makes a vow of truthfulness or fidelity under the pains and penalties of perjury.
"Official misconduct" shall mean a notary’s performance of any act prohibited, or failure to perform any act mandated, by these sections, or by any other 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" shall mean 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" shall mean a person whose signature is notarized, or a person taking an oath or affirmation from the notary.
"Satisfactory evidence of identity" shall mean identification
of an individual based on at least one current document issued by a federal or
state government agency bearing the photographic image of the individual’s face
and signature; or on 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 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
“Signature witnessing” shall mean a notarial act in which an individual, at a single time and place, appears in person before the 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 13. (a) A person qualified for a notary public
commission shall be at least 18 years of age, and be a
(b) In the Governor's discretion, an application may be denied based on:
(1) submission of an official application containing a material misstatement or omission of fact;
(2) the applicant's felony conviction or misdemeanor conviction that resulted in a prison sentence;
(3) the applicant's conviction of a misdemeanor with probation or a fine, or conviction for drunk driving;
(4) the applicant's admission of facts sufficient to warrant a finding of guilt of any crime;
(5) a finding or admission of liability against the applicant in a civil lawsuit based on the applicant’s deceit;
(6) revocation, suspension, restriction, or denial of a notarial commission or professional license by this or any other state; or
(7) any other reasons that, within the Governor's discretion, would make the applicant unsuitable to hold the commission as a notary public.
Section 14. As set forth in Article IV of the Articles of Amendment to the Constitution of the Commonwealth, a person commissioned as a notary public may perform notarial acts in any part of the commonwealth for a term of seven years, unless the commission is earlier revoked or the notary resigns.
Section 15. (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 witness 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:
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 in my presence.
_________________ (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) This section does not require a notary public to use the forms set forth above if the form of an acknowledgment, jurat, signature witnessing, or copy certification is required or allowed by the provisions of any court rule or court forms; a Massachusetts General Law, including but not limited to, chapter 183, section 42 or the forms set forth in the appendix thereto, or chapter 192, section 2; any Federal statute; or any regulation adopted pursuant to any such Massachusetts or Federal statute.
(g) 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 if 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.
(h) 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 that form.
Section 16. (a) A notary public may certify the affixation of a signature by mark on a document presented for notarization if:
(1) the principal affixes the mark in the presence of the notary public and of 2 witnesses unaffected by the document;
(2) both witnesses sign their own names beside the mark;
(3) 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 pursuant to Executive Order No. 455; and
(4) the notary public notarizes the signature by mark through an acknowledgment, jurat, or signature witnessing.
(b) The 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:
(1) the principal directs the notary to do so in the presence of 2 witnesses who are unaffected by the document;
(2) 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;
(3) in the notary public’s judgment, the principal is acting of his or her own free will;
(4) the notary public signs the principal’s name in the presence of the principal and the witnesses;
(5) both witnesses sign their own names beside the signature;
(6) the notary public writes below the signature: “Signature affixed by notary public in the presence of (names and addresses of principal and 2 witnesses)"; and
(7) the notary public notarizes the signature through an acknowledgment, jurat, or signature witnessing.
Section 17. (a) A notary public shall not perform a notarial act if:
(1) in the notary public’s judgment, the principal is not acting of his or her own free will;
(2) the notary public is a party to or is named in the document that is to be notarized, except that a notary public may notarize a document if the notary public is named in the document for the sole purpose of receiving notices relating to the document and except that a notary public who is licensed as an attorney in the Commonwealth of Massachusetts and is named as an executor, trustee or in any fiduciary capacity in a document or employees of such attorney may perform notarial acts concerning such document;
(3) 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 in value the fees set forth in section 41 of chapter 262 of the General Laws or has any financial interest in the subject matter of the document. For example, this section shall not preclude a notary public who is licensed as an attorney in the Commonwealth of Massachusetts or any employee of such attorney from notarial acts concerning any document where the attorney receives a legal fee for professional legal services rendered in connection with such document.
(4) the notary public is a spouse, domestic partner, parent, guardian, child, or sibling of the principal, including in-law, step, or half relatives, except where such persons witness a will or other legal document prepared by the notary public who is an attorney licensed in the Commonwealth of Massachusetts.
(5) 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.
(6) A notary public shall not execute a certificate containing information known or believed by the notary public to be false.
(7) 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. (b) 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.
(8) A notary public shall not notarize a signature on a blank or incomplete document, except as provided in 7(b) above.
(9) A notary public shall not perform any official act with the intent to deceive or defraud.
(10) A notary public shall not claim to have powers, qualifications, rights, or privileges that the office of notary public does not provide, including the power to counsel on immigration matters.
Section 18. (a) No notary public may represent or advertise himself or herself as a lega1 specialist unless the individual is an attorney. No notary public shall make any statement that the person can or will obtain special favors from or has special influence with any government agency. No notary public 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 the language that is being translated, including but not limited to use of the words or titles “notary public,” “notary,” “licensed,” “attorney,” “lawyer,” or any other terms that imply that the person is an attorney, in any document, including an advertisement, stationery, letterhead, business card, or other comparable written material describing the individual.
(b) A notary
public shall not offer legal advice or advise clients as to their immigration
status; secure or attempt to secure supporting documents, such as birth
certificates, necessary to complete a client’s immigration forms; or submit
completed immigration forms on a client’s behalf to any governmental agency. A
notary public may translate the questions presented on an immigration form for
a client and may complete those forms at the explicit direction of the client
only where translation of the client’s answers is necessary. Prior to providing
services related to an immigration matter, a notary public shall provide a
client with 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
questions about immigrating to the
(c) The following persons are exempt from these restrictions provided they prove the exemption by a preponderance of the evidence:
(1) An attorney
licensed to practice law in any state or territory of the
(2) A legal intern or law student, employed by and under the direct supervision of a licensed attorney and rendering immigration assistance service in the course of the intern’s or student’s employment.
(3) A
not-for-profit organization recognized by the attorney general or the secretary
of the commonwealth and the
(4) Any organization employing or desiring to employ an alien or nonimmigrant alien, where the organization, its employees or its agents provide advice or assistance in immigration matters to alien or nonimmigrant alien 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 assist a non-attorney in drafting, completing, selecting, or understanding a document or transaction requiring a notarial act, rendering legal advice, or otherwise engage in the practice of law. This section does not preclude a notary public who is duly qualified, trained, or experienced in a particular industry or professional field from selecting, drafting, completing, or advising on a document or certificate related to a matter within that industry or field.
(e) A notary public who is not an attorney licensed to practice law in Massachusetts, or who is not directly supervised by an attorney, shall not conduct a real estate closing and shall not act as a real estate closing agent. A notary public who is employed by a lender may notarize a document in conjunction with the closing of his or her employer's real estate loans.
(f) The attorney general may prosecute any person committing a violation under this section. Any person convicted of violating this section shall be punished for a first offense by a fine of not more than $1,000 or by imprisonment in the house of corrections 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 the house of corrections for not more than 1 year, or by both such fine and imprisonment. The attorney general may file a petition for injunctive relief against any person who violates this section. Any conviction based on a violation of this section shall be grounds for the revocation of a notary’s appointment. The attorney general or the secretary of the commonwealth may file a petition with a court, either concurrently with any complaint under this section or subsequent to any such conviction, to revoke a notary’s appointment. A person having an interest or right that is or may be adversely affected by a violation of this section may initiate an action for private remedies and, if the attorney general has not done so, for injunctive relief. A prevailing plaintiff may be awarded punitive damages, attorney’s fees, and costs of bringing an action under this section.
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:
(1) The individual’s full name, address, and evidence of compliance with the bonding requirement under section 13(a) of this chapter;
(2) The statement “I am not an attorney licensed to practice law and may not give legal advice or accept fees for legal advice.”; and
(3) 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, telephone number, agent for service of process, and evidence of compliance with the bonding requirement under section 13(a) of this chapter.
Section 20. (a) A notary shall perform any notarial act described in these sections for any person requesting such an act who tenders the fee set forth in section 24 of this chapter or section 41 of chapter 262 of the General Laws unless:
(1) the notary public knows or has good reason to believe that the notarial act or the associated transaction is unlawful;
(2) 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;
(3) the act is prohibited by these sections or other applicable law; or
(4) 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. Failure of a document to contain the forms of acknowledgment, jurat, signature witnessing, or copy certification, or otherwise to comply with the requirements set forth in these sections shall not have any effect on the validity of the underlying document. Failure of a document to contain the forms of acknowledgment, jurat, signature witnessing, or copy certification set forth in these sections should not be the basis of refusal to accept the document for filing, recordation, registration, or acceptance by a third party.
Section 22. (a) A notary 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. 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. A notary public shall keep no more than one active journal at the same time.
(b) For every notarial act, except for the issuance of summons or subpoenas, or the 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 (i.e. real estate closings, mortgage discharges, state laboratory drug analysis certificates, etc.), a single journal entry shall be sufficient;
(4) the signature, printed name, and address of each principal and witness;
(5) description of the satisfactory evidence of identity of each person including a notation of the type of identification document, the issuing agency, its serial or identification number, and its date of issuance or expiration. A notary public shall not record a Social Security or credit card number in the journal. If the identification number on the document is the person's Social Security number, instead of including the number, write in the words "Social Security number" or the acronym "SSN" or 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;
(6) the fee, if any, charged for the notarial act; and the address where the notarization was performed.
(c) A notary public shall record in the journal the circumstances for not completing a notarial act.
(d) A journal shall be recommended as the best practice, but not required, for a notary public who is an attorney licensed to practice law in the Commonwealth of Massachusetts or employed by such attorney. These sections shall not be construed in any way to impair or infringe in any way on the attorney-client privilege or the attorney work product doctrine.
Section 23. The 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 Governor’s Office. Nothing in this section shall prevent a notary public from seeking appropriate judicial protective orders. A notary public shall safeguard the journal and all other notarial records and surrender or destroy them only by rule of law, by court order, or at the direction of the Governor’s Office. When not in use, the 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. A notary shall keep an official notarial seal or stamp that is the exclusive property of the notary, which may not be used by any other person. A notary public shall obtain a new seal or stamp if the notary public renews his or her commission, receives a new commission, or changes his or her name. The notarial seal or stamp shall include: the notary public's name exactly as indicated on the commission; the words "notary public," "Commonwealth of Massachusetts" or "Massachusetts", and "my commission expires on [commission expiration date]" or "commission expires on [commission expiration date]" or "commission expires [commission expiration date]"; and a facsimile of the great seal of the Commonwealth of Massachusetts. Each new notarial seal that uses ink shall, after the date of this Executive Order, use black ink. A notary public may satisfy the requirements of this section by using a stamp and a seal that together include all of the information required by this section.
Section 25. Fees charged by a notary public for the following services shall not exceed the specified amount until January 1, 2007, after which time such maximum fees shall be set by the secretary of the commonwealth:
(a) For taking an acknowledgment or proof of a deed, or other instrument, to include the seal and the writing of the certificate, the sum of $10 for each signature taken.
(b) For administering an oath or affirmation to one person and executing the jurat, including the seal, the sum of $10.
(c) For all services rendered in connection with the taking of any deposition, the sum of $20, and in addition thereto, the sum of $5 for administering the oath to the witness and the sum of $5 for the certificate to the deposition.
(d) For every protest for the nonpayment of a promissory note or for the nonpayment or non- acceptance of a bill of exchange, draft, or check, the sum of $10.
(e) For serving every notice of nonpayment of a promissory note or of nonpayment or non-acceptance of a bill of exchange, order, draft, or check, the sum of $5.
(f) For recording every protest, the sum of $5.
(g) For certifying a copy of a power of attorney under chapter 201B, the sum of $10.
(h) No fee may be charged to notarize signatures on absentee ballot identification envelopes or other voting materials.
(i) No fee may
be charged to a
Section 26. 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 retain the notarial journal and records for seven years after the date of expiration, resignation, or revocation.
Section 27. Within 10 days after the change of a notary public's residence, business, mailing address, or name, the notary shall send to the Office of the Secretary of State a signed notice of the change, giving both the old and new information.
Section 28. A notary public's commission may be revoked for official misconduct as defined in section 1, 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 2. Chapter 271 of the General Laws is hereby amended by adding the following section 271:51. Notaries public; misrepresentation, false advertising, improper solicitation, failure to disclose, acts of fraud.
Section 51. Whoever is found guilty of a violation under section 17 of chapter 222 or of any offense that constitutes a felony under the General Laws may be punished by, in addition to other authorized fines and punishments, the revocation of the individual’s appointment as a notary public.
