Bill Text: MS HB1168 | 2024 | Regular Session | Introduced
Bill Title: Mississippi Law on Notarial Acts; revise to allow notaries to perform remote online notarization.
Spectrum: Bipartisan Bill
Status: (Failed) 2024-03-05 - Died In Committee [HB1168 Detail]
Download: Mississippi-2024-HB1168-Introduced.html
MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Judiciary A
By: Representative Yancey
House Bill 1168
AN ACT TO AMEND SECTION 25-34-3, MISSISSIPPI CODE OF 1972, TO DEFINE ADDITIONAL TERMS UNDER THE REVISED MISSISSIPPI LAW ON NOTARIAL ACTS RELATING TO REMOTE ONLINE NOTARIZATION (RON); TO AMEND SECTION 25-34-5, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE LAW, AS REVISED BY THIS ACT, APPLIES TO NOTARIAL ACTS PERFORMED AFTER JULY 1, 2024; TO AMEND SECTION 25-34-7, MISSISSIPPI CODE OF 1972, TO AUTHORIZE NOTARIAL OFFICERS TO CERTIFY A TANGIBLE COPY OF AN ELECTRONIC RECORD AS A TRUE AND CORRECT COPY; TO AMEND SECTION 25-34-9, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE SECRETARY OF STATE TO ESTABLISH THE MAXIMUM FEES THAT MAY BE CHARGED BY NOTARIES AND TO CLARIFY THAT A NOTARY IS NOT REQUIRED TO CHARGE A FEE; TO AMEND SECTION 25-34-11, MISSISSIPPI CODE OF 1972, TO PRESCRIBE REQUIREMENTS FOR PERFORMING REMOTE NOTARIZATIONS; TO AMEND SECTION 25-34-15, MISSISSIPPI CODE OF 1972, TO PRESCRIBE THE REQUIREMENTS FOR IDENTIFYING A PERSON APPEARING BEFORE A NOTARY REMOTELY; TO AMEND SECTION 25-34-17, MISSISSIPPI CODE OF 1972, TO PROHIBIT A NOTARY FROM PERFORMING A REMOTE NOTARIZATION WHEN THE NOTARY DOES NOT KNOW HOW TO OPERATE THE REQUIRED TECHNOLOGY OR IF THE TECHNOLOGY DOES NOT MEET CERTAIN REQUIREMENTS; TO AMEND SECTION 25-34-31, MISSISSIPPI CODE OF 1972, TO REQUIRE A NOTARY'S CERTIFICATE TO INDICATE WHEN A NOTARIZATION HAS BEEN PERFORMED REMOTELY; TO AMEND SECTION 25-34-37, MISSISSIPPI CODE OF 1972, TO REQUIRE REMOTE NOTARIZATIONS TO BE AUDIO VISUALLY RECORDED; TO AMEND SECTION 25-34-51, MISSISSIPPI CODE OF 1972, TO PRESCRIBE CERTAIN MATTERS THAT MUST BE INCLUDED IN RULES AND REGULATIONS ADOPTED BY THE SECRETARY OF STATE WHICH RELATE TO THE IMPLEMENTATION OF THE LAW ON NOTARIAL ACTS; TO AMEND SECTION 25-34-53, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT A NOTARY'S COMMISSION EXISTING ON THE EFFECTIVE DATE OF THIS ACT IS NOT AFFECTED UNTIL IT EXPIRES; TO AMEND SECTION 25-34-55, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT NOTARIAL ACTS PERFORMED BEFORE THE EFFECTIVE DATE OF THIS ACT ARE NOT AFFECTED OR INVALIDATED BY THIS ACT'S PASSAGE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 25-34-3, Mississippi Code of 1972, is amended as follows:
25-34-3. As used in this act, the following words and phrases have the meanings ascribed in this section unless the context clearly requires otherwise:
(a) "Acknowledgment" means a declaration by an individual in person before a notarial officer that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record.
(b) "Communication technology" means an electronic device or process that:
(i) Allows a notarial officer and a remotely located individual to communicate with each other simultaneously by sight and sound; and
(ii) When necessary and consistent with other applicable law, facilitates communication with a remotely located individual who has vision, hearing or speech impairment.
(c) "Credential analysis" means a process or service operating according to criteria approved by the Secretary of State through which a third person or party affirms the validity of a government-issued identification credential through review of public or proprietary data sources.
(d) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.
(e) "Electronic notarization system" means a set of applications, programs, hardware, software or technologies designed to enable a notary public to perform electronic notarizations which renders every electronic notarial act tamper-evident through the use of a security procedure and which meets the requirements of this chapter and any rules established by the Secretary of State.
( * * *f) "Electronic signature" means
an electronic symbol, sound or process attached to or logically associated with
a record and executed or adopted by an individual with the intent to sign the record.
(g) "Foreign state" means a jurisdiction other than the United States, a state or a federally recognized Indian tribe.
(h) "Identity proofing" means a process or service by which a third person provides a notarial officer with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.
( * * *i) "In a representative capacity"
means acting as:
(i) An authorized officer, manager, member, agent, partner, trustee or other representative for a person other than an individual;
(ii) A public officer, personal representative, guardian or other representative, in the capacity stated in a record;
(iii) An agent or attorney-in-fact for a principal; or
(iv) An authorized representative of another in any other capacity.
( * * *j) "Notarial act" means an act,
whether performed with respect to a tangible or electronic record, that a notarial
officer may perform under this act and any other law of this state. The
term "notarial act" includes taking an acknowledgement, administering
an oath or affirmation, taking a verification on oath or affirmation,
witnessing or attesting a signature, certifying or attesting a copy, and noting
a protest of a negotiable instrument.
( * * *k) "Notarial officer" means a
notary public or other individual authorized to perform a notarial act.
( * * *l) "Notary public" means an individual
commissioned to perform a notarial act by the Secretary of State.
( * * *m) "Official seal" means a physical
image affixed to a tangible record or an electronic image attached to or logically
associated with an electronic record.
(n) "Outside the United States" means a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory, insular possession or other location subject to the jurisdiction of the United States.
( * * *o) "Record" means information
that is inscribed on a tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
(p) "Remotely located individual" means an individual who is not in the physical presence of a notarial officer performing a notarial act.
(q) "Remote ink-signed notarization" or "RIN" means a notarial act performed for a remotely located individual by means of communication technology on a tangible record.
(r) "Remote online notarization" or "RON" means a notarial act performed for a remotely located individual by means of communication technology and an electronic notarization system on an electronic record.
( * * *s) "Sign" means, with present
intent to authenticate or adopt a record:
(i) To execute or adopt a tangible symbol; or
(ii) To attach to or logically associate with the record an electronic symbol, sound or process.
( * * *t) "Signature" means a tangible
symbol or an electronic signature that evidences the signing of a record.
( * * *u) "Stamping device" means:
(i) A physical device capable of affixing to a tangible record an official seal; or
(ii) An electronic device or process capable of attaching to or logically associating an official seal with an electronic record.
( * * *v) "State" means a state of the
United States, the District of Columbia, Puerto Rico, the United States Virgin Islands
or any territory or insular possession subject to the jurisdiction of the United
States.
( * * *w) "Verification on oath or affirmation,"
formerly known as a jurat, means a declaration, made by an individual on oath or
affirmation before a notarial officer, that a statement in a record is true.
SECTION 2. Section 25-34-5, Mississippi Code of 1972, is amended as follows:
25-34-5. This * * * chapter applies to a notarial act performed
on or after July 1, * * *
2024.
SECTION 3. Section 25-34-7, Mississippi Code of 1972, is amended as follows:
25-34-7. (1) A notarial officer may perform the following notarial acts:
(a) Take acknowledgements;
(b) Administer oaths and affirmations;
(c) Take verifications on oath or affirmation;
(d) Certify depositions of witnesses;
(e) Witness or attest signatures;
(f) Make or note a protest of a negotiable instrument;
(g) Make an affidavit
regarding the truth of any witnesses or attested signatures in question along
with any corrected language and, if the authenticity or correctness of language
affects real property, file the same in the land records in the office of the
chancery clerk where the land is located; * * *
(h) Certify that a tangible copy of an electronic record is a true and correct copy of the electronic record; and
(i) Any other acts so authorized by the law of this state.
(2) A notarial officer may not perform a notarial act when the officer:
(a) Is a party to the record being notarized;
(b) Is a spouse, child, sibling, parent, grandparent, grandchild, aunt or uncle, or niece or nephew, including a son or daughter-in-law, a mother or father-in-law, a stepchild or stepparent, or a half-sibling, of the person whose signature is being notarized or the person taking a verification on oath or affirmation from the officer; or
(c) Will receive as a direct result any commission, fee, advantage, right, title, beneficial interest, cash, property or other consideration exceeding in value the fees required by rules established by the Secretary of State.
(3) A notarial officer is not disqualified from performing a notarial act by virtue of his or her profession when the officer:
(a) Is an employee performing a notarial act on behalf of, or which benefits, the employer;
(b) Is an attorney who maintains an attorney-client relationship with the person whose signature is the subject of the notarial act; or
(c) Is a shareholder of a corporation or member of a limited liability company which is a party to a record that is the subject of the notarial act.
(4) A notarial act performed in violation of subsection (2) is voidable.
SECTION 4. Section 25-34-9, Mississippi Code of 1972, is amended as follows:
25-34-9. * * * (1) The Secretary of
State may establish, by rule, the maximum fees that may be charged by a notarial
officer for various notarial services.
(2) A notarial officer is not required to charge fees for notarial acts.
SECTION 5. Section 25-34-11, Mississippi Code of 1972, is amended as follows:
25-34-11. (1) A notarial officer who takes an acknowledgment of a record, takes a verification of a statement on oath or affirmation (jurat), or witnesses or attests to a signature, must determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing in person before the officer has the identity claimed and that the signature on the record is the signature of the individual.
(2) A notarial officer who makes or notes a protest of a negotiable instrument must determine the matters set forth in Section 75-3-505(b).
(3) A notary public located in this state may perform, upon registration with and after providing notification to the Secretary of State pursuant to Section 25-34-39, a remote ink-signed notarization or remote online notarization if:
(a) The notary public:
(i) Has personal knowledge under Section 25-34-13(1) of the identity of the individual; or
(ii) Has obtained satisfactory evidence of the identity of the remotely located individual by using at least two (2) different types of identity proofing;
(b) The notary public is able to reasonably confirm that a record before the notary public is the same record in which the remotely located individual made the statement or on which the remotely located individual executed the signature;
(c) The notary public, or person acting on behalf of the notary public, creates an audio-visual recording of the performance of the notarial act; and
(d) For an individual located outside the United States:
(i) The individual confirms to the notary public that the record is to be filed with or relates to a matter before a court, governmental entity, public official or other entity under the jurisdiction of the United States, or involves property located in the territorial jurisdiction of the United States or a transaction substantially connected with the United States; and
(ii) To the notary public's actual knowledge, the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.
(4) Regardless of the physical location of the individual at the time of the notarial act, the validity of a remote ink-signed notarization or remote online notarization performed by a notary public commissioned in this state must be determined by applying the laws of this state.
SECTION 6. Section 25-34-15, Mississippi Code of 1972, is amended as follows:
25-34-15. (1) If a
notarial act relates to a statement made in or a signature executed on a
record, the individual making the statement or executing the signature must
appear * * * personally before the notarial officer * * *.
(2) As used in this section, "appear personally" means:
(a) An individual is in the physical presence of a notarial officer; or
(b) A remotely located individual appears before a notary public by communication technology in compliance with Section 25-34-11(3) and the rules adopted pursuant to Section 25-34-51.
(3) Notwithstanding subsection (2) of this section, in performing a remote ink-signed notarization or remote online notarization, a notary public has satisfactory evidence of the identity of an individual appearing personally before the notary public if the notary public can identify the individual through the use of communication technology that meets the requirements of this section, any rules promulgated by the Secretary of State, and by at least one (1) of the following:
(a) The notary public's personal knowledge of the individual; or
(b) Each of the following:
(i) Remote presentation by the individual of a government-issued identification credential that contains the signature and photograph of the individual;
(ii) Credential analysis of the identification credential described under subparagraph (i) of this paragraph (b); and
(iii) Identity proofing of the individual; or
(c) A valid public key certificate that complies with the rules promulgated by the Secretary of State.
SECTION 7. Section 25-34-17, Mississippi Code of 1972, is amended as follows:
25-34-17. (1) A notarial officer may refuse to perform a notarial act if the officer knows or suspects the transaction is illegal, false or deceptive, or if the officer is not satisfied that:
(a) The individual executing the record is competent;
(b) The individual executing the record has the capacity to execute the record;
(c) The individual's signature is knowingly and voluntarily made; or
(d) The notarial act is in compliance with this chapter or with rules issued by the Secretary of State to implement this chapter.
(2) A notarial officer may refuse to perform a notarial act unless refusal is prohibited by any law other than this chapter.
(3) A notary may not be required to perform a notarial act outside the notary's regular workplace or business hours.
(4) A notary public must refuse a request that would require the notary to:
(a) Use an electronic notarization system or a communication technology that the notary does not know how to operate; or
(b) Use an electronic notarization system or communication technology that does not meet the requirements of this chapter or standards adopted by rules promulgated pursuant to Section 25-34-51.
SECTION 8. Section 25-34-31, Mississippi Code of 1972, is amended as follows:
25-34-31. (1) A notarial act must be evidenced by a certificate. The certificate must:
(a) Be executed contemporaneously with the performance of the notarial act;
(b) Be signed and dated by the notarial officer and, if the notarial officer is a notary public, be signed in the same manner as on file with the Secretary of State;
(c) Identify the jurisdiction in which the notarial act is performed;
(d) Contain the title of office of the notarial officer; and
(e) If the notarial officer is a notary public, indicate the date of expiration of the notary public's commission.
(2) If a notarial act regarding a tangible record is performed by a notary public, the notary public's official seal must be affixed to the certificate. If a notarial act is performed regarding a tangible record by a notarial officer other than a notary public and the certificate contains the information specified in subsection (1)(b), (c) and (d), the notarial officer's official seal may be affixed to the certificate. If a notarial act regarding an electronic record is performed by a notarial officer and the certificate contains the information specified in subsection (1)(b), (c) and (d), the notarial officer's official seal may be attached to or logically associated with the certificate.
(3) In addition to the information specified in subsection (1), a certificate of a remote ink-signed notarization or remote online notarization must indicate that the notarial act was performed using communication technology. A certificate subject to this subsection is sufficient if:
(a) It is in the form provided in Section 89-3-7 or otherwise contains a statement substantially as follows: "This notarial act involved the use of communication technology."; or
(b) It complies with rules adopted pursuant to Section 25-34-51.
(4) The party drafting a record that is the subject of a notarial act is responsible for the form of the certificate, its wording and legal sufficiency. A notary public is not required to draft, edit or amend a certificate where the record presented does not contain an acceptable certificate; instead, the notary must refuse to perform the notarial act with respect to the record.
( * * *5) A certificate of a notarial act is
sufficient if it meets the requirements of subsections (1) and (2) and:
(a) Is in a form otherwise permitted by the law of this state;
(b) Is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed; or
(c) Sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the notarial act as provided in Sections 25-34-7, 25-34-9, 25-34-11 and 25-34-15 or any law of this state other than this chapter.
( * * *6) By executing a certificate of a
notarial act, a notarial officer certifies that the officer has complied with
the requirements and made the determinations specified in Sections 25-34-7, 25-34-9,
25-34-11 and 25-34-15.
( * * *7) A notarial officer may not affix the
officer's signature to, or logically associate it with, a certificate until the
notarial act has been performed.
( * * *8) If a notarial act is performed regarding
a tangible record, a certificate must be part of, or securely attached to, the
record. If a notarial act is performed regarding an electronic record, the
certificate must be affixed to, or logically associated with, the electronic
record. If the Secretary of State has established standards under Section 25-34-39
for attaching, affixing or logically associating the certificate, the process
must conform to those standards.
( * * *9) The signature of a notarial officer
certifying a notarial act may not be deemed evidence to show that the notarial
officer had knowledge of the contents of the record so signed, other than those
specific contents which constitute the signature, execution, acknowledgment,
oath, affirmation, affidavit, verification or other act which the signature of
that notarial officer chronicles.
SECTION 9. Section 25-34-37, Mississippi Code of 1972, is amended as follows:
25-34-37. (1) A notary public must maintain a journal in which the notary public chronicles all notarial acts that the notary public performs. If a notary public performs a remote ink-signed notarization or remote online notarization, the notary public, or a person acting on behalf of the notary public, must make an audio-visual recording of the performance of the notarial act.
(2) A journal must be
created on a tangible or electronic medium. A notary public shall maintain
only one (1) journal at a time to chronicle all notarial acts * * * performed * * *. If
the journal is tangible, it must be a permanent, bound register with numbered
pages. An electronic journal must conform to specifications set forth in rules
by the Secretary of State.
(3) An entry in a journal must be made contemporaneously with performance of the notarial act and contain the following information:
(a) The date and time of the notarial act;
(b) A description of the record, if any, and type of notarial act;
(c) The full name and address of each individual for whom the notarial act is performed;
(d) If identity of the individual is based on personal knowledge, a statement to that effect;
(e) If identity of the individual 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 of any identification credential;
(f) The address where
the notarial act was performed if not the notary's business address; * * *
(g) If the notarial act is performed using an electronic notarization system or communication technology, or both, a notation identifying the system or technology, or both; and
(h) The fee, if any, charged by the notary public.
(4) If the journal of notary public is lost or stolen, the notary public must notify promptly the Secretary of State upon discovery that the journal is lost or stolen.
(5) On resignation from, or the revocation or suspension of, a notary public's commission, the notary public must deposit all journal records with the circuit clerk of the county of residence of the notary public.
(6) Upon the death or adjudication of incompetency of a current or former notary public, the notary public's personal representative or guardian or any other person knowingly in possession of the journal shall:
(a) Notify the
Secretary of State of the death or adjudication in writing; * * *
(b) Within thirty (30) days of death or adjudication of incompetency, transmit all journal records to the circuit clerk of the county of residence of the notary public; and
(c) Within thirty (30) days of death or adjudication of incompetency, transmit all audio-visual recordings required under subsection (1) of this section and Section 25-34-11(3)(c) to the Secretary of State or a repository designated by the Secretary of State for retention. Unless a different period is required by rule adopted under Section 25-34-51, the recording must be retained for at least seven (7) years after the audio-visual recording is made.
SECTION 10. Section 25-34-51, Mississippi Code of 1972, is amended as follows:
25-34-51. (1) The
Secretary of State may adopt any rules necessary to implement this chapter
after complying with the Mississippi Administrative Procedures Law * * *, including, but not limited to, rules that:
(a) Prescribe the manner of performing notarial acts regarding tangible and electronic records;
(b) Establish standards for communication technology and identity proofing, including the use of credential analysis, dynamic knowledge-based authentication, biometrics, or other means of identification;
(c) Establish requirements or procedures to approve providers of communication technology and the process of identity proofing; and
(d) Establish standards and periods for the retention of an audio-visual recording created under Section 25-34-11(3)(c) and Section 25-34-37(1) of the performance of a notarial act.
(2) Before adopting, amending or repealing rules about the performance of a notarial act with respect to a remotely located individual, the Secretary of State must consider, if consistent:
(a) The most recent standards regarding the performance of a notarial act with respect to remotely located individuals promulgated by national standard-setting organizations, including the National Association of Secretaries of State; and
(b) Standards, practices and customs of other jurisdictions that enact a statute substantially similar to this section.
(3) Rules adopted regarding the performance of notarial acts with respect to electronic records, electronic notarization systems or communication technology may not require or accord legal status or effect to the implementation or application of a specific system, technology or technical specification.
SECTION 11. Section 25-34-53, Mississippi Code of 1972, is amended as follows:
25-34-53. A commission as a
notary public in effect on July 1, * * * 2024, continues until its date of
expiration. A notary public who applies to renew a commission as a notary public
on or after July 1, * * *
2024, is subject to and must comply with this chapter. A notary public,
in performing notarial acts after July 1, * * * 2024, must comply with this chapter.
SECTION 12. Section 25-34-55, Mississippi Code of 1972, is amended as follows:
25-34-55. This chapter does
not affect the validity or effect of a notarial act performed before July 1, * * * 2024.
SECTION 13. This act shall take effect and be in force from and after July 1, 2024.
