NEBRASKA NOTARY LAW SEMINAR Charting the Changes of LB315 John A. Gale Secretary of State.

NEBRASKA NOTARY LAW SEMINARCharting the Changes of LB315

John A. GaleSecretary of State

Presenters:

John A. Gale, Secretary of State Greg Lemon, Chief Deputy Secretary of

State Deb Pester, Deputy Secretary of State,

Business and Licensing Division

WHY THE CHANGE?

There have been no significant changes to Nebraska Notary Law in over 30 years

Prior law did not address basic principles of notary law such as proof of identity and conflict of interest

Issues like identity theft, equal access to services for the disabled, and malfeasance in office were not addressed in the prior law

Becoming A Notary

Applying for your Commission as Notary Public or Renewing Your Commission

Significant Changes

The 25 signature requirement to become a notary is dropped and replaced by a test requirement

Specifically prohibits convicted felons or anyone who has been convicted of a crime involving fraud or dishonesty from becoming a notary

Raises the bond amount from $10,000 to $15,000 dollars

The Application Process

TestApplication and BondChange of Address

TEST

New applicants will be required to take the test

The test is available upon request from the Secretary of State

The test should be taken (and passed) prior to submitting your application and bond

Applicants who have let their notary commission expire must take the test

TEST (continued)

The test will be an “open book” type test designed to show that the applicant has the knowledge to properly perform the duties of a Nebraska Notary

Questions will be based upon Nebraska statutes and procedures relating to notary laws

The test must be completed by the applicant with no assistance from others

If you fail the test you may take it once more, if you fail again you must wait six months before retaking the test

Application

The application form is available on our website or upon request from our office

You must be 19 years of age or over You must not have been convicted of a felony

or crime involving fraud or dishonesty You must be a resident of the State of

Nebraska (working in Nebraska, but living in another state does not meet statutory requirements for residency)

You must pass the test You must submit the application fee ($30) and

the bond ($15,000) with your application

Bond

A surety bond in the amount of $15,000 dollars is required (formerly $10,000)

A bond form is available on our website, it is not mandatory to use the form, but any substitute form should substantially comply with the provisions on the form provided

Bonds are generally available from full line insurance agents

Renewal

Your commission as notary public is good for four years, we do not currently send renewal notices

Renewal applicants do not need to take the test unless their commission has expired at the end of its four year term

Renewals should be sent in within thirty days of your commission expiration date (look on your seal if you don’t know the date!)

All other requirements, fee, bond, etc. are the same as those for initial applicants

The renewal form is available on our website or upon request from our office

You must still be a resident of the State of Nebraska

Change of Address

Should your residence address change while commissioned as a notary you are required to notify the Secretary of State within 45 days under the new law

The change of address form is available on our website or upon request from our office

Should your residence change while commissioned as a notary in Nebraska to a non-Nebraska residence you must surrender your seal and commission immediately to the Secretary of State

Being A Notary Public

Practices and Procedures Under Nebraska Law

A Nebraska notary public is an official government officer, just like a law enforcement officer, judge, or elected official. As a public officer there are certain powers and duties defined by law that the notary must follow in order to fulfill their official obligations.

Failure to fulfill these obligations may result in removal from office or even civil or criminal liability.

Significant Changes

Specifically defines satisfactory proof of identity for purposes of performing notarial acts

Expressly provides that notarial acts may only be performed when the principal is “in the presence of” the notary

Provides a notary may not perform a notarial act if they are in the same immediate family as the principal

Significant Changes (continued)

Provides procedure for signature by mark for those unable to sign by reason of physical incapacity

Prohibits advertising as a “Notario Publico” or the unauthorized practice of law by any non-attorney notary

More specifically defines malfeasance in office by a notary public

Performing the Notarial Act

Jurisdiction Forms of Oaths and Acknowledgments “Appeared before me” Proof of Identity Signature By Mark Reviewing the Document Role of the Notary Dotting the “i”s and crossing the “t”s

Jurisdiction and Powers

As an officer of the state a notary, like a police officer or judge, has a jurisdiction, or area in which they may exercise their powers

A Nebraska notary may act as such anywhere in the State of Nebraska

Jurisdiction and Powers

There is one class of general Notaries Public, all with the same powers:

Administer Oaths and Affirmations Administer Acknowledgments Take Depositions

Forms of Oaths and Acknowledgements

LB315 did not change the form of oaths and acknowledgements used in Nebraska

The Uniform Recognition of Acknowledgments Act is found at Neb. Rev. Stat. §64-201 et. Seq. and in the Notary Public Handbook

LB315 provides that the non attorney notaries should not determine or write the attestation clause to be used

However, there should be some sort of attestation clause when a notarial act is performed, simply signing as notary public, dating, and stamping the seal is not a proper notarial act.

Certain Oaths are prescribed in statute or even the constitution

“Appeared Before Me”

LB315 adds language to more specifically state that a notarial act must only be performed when the principal appears before the notary

Administering an oath over the phone or by video conference is not administering an oath in the presence of the notary

Putting your notary seal and signature on a document that was signed “just a few minutes ago in the office next door” is not performing a notarial act in the presence of the principal

The principal and the notary must be in the same room or location and able to effectively communicate by hearing and or writing at the time the notarial act is performed

Proof of Identity

A notary should not perform any notarial act without proper proof of identity or personal knowledge of identity of the principal

Proof of Identity (continued)

LB315 more clearly states the proof of identity standard to be used by notaries

The principal must be identified through “Satisfactory Evidence”

“Satisfactory Evidence” means either: 1) a government issued identification card with picture, signature and physical description

2) A passport 3) The oath or affirmation of one credible, unaffected,

witness who is personally known to the notary and who personally knows the principal

4) The principal is personally known to the notary through interaction over a period of time

Signature By Mark

LB315 provides that a notary may certify signature by mark for those unable to sign a regular signature or sign the name of someone unable to affix their signature by mark

Signature by mark must be witnessed by two unaffected parties who will sign their name by the mark of the notaries signature for the principal

Additional instructions on signature by mark are included in your handbook and on the Secretary of State’s website

Reviewing the Document

A non-attorney notary should not review the document to be acknowledged or sworn to for content or legal sufficiency

A notary should look for blank lines on the document, blank lines should be crossed out or completed by the principal or principals prior to notarization (failure to do so leaves the document open to easy alteration after the notarial act is performed)

Role of the Notary

Don’t advise the principal about the document, a non-attorney notary should not advise the principal on legal matters

Do consider the capacity and demeanor of the principal. If the principal does not seem to be coherent, understand the proceedings around them, or not have the capacity to enter into binding agreements because of age or disability do not notarize the document

Role of the Notary (continued)

Notaries are not required to perform requested notarial acts (however, discrimination in offering services is prohibited under appropriate, federal, state or local law)

The decision whether or not to perform a notarial act may be up to your employer; however, if a notarial act is to be performed it should always be performed correctly according to law

ALWAYS:

Perform Notarial Acts with the principal in your presence

Require proper proof of identity (if the principal is not personally known to you)

Fill in the blanks in the notarial certificate and make sure that any blank spaces are filled in on the document

Check to make sure signature, dates, and jurisdiction are correct on the document

Dotting the “i”s and Crossing the “t”s

MALFEASANCE IN OFFICE (Naughty Notaries)

Malfeasance Defined

LB315 specifically defines malfeasance in office to mean failure to follow the procedures and requirements for notarial acts provided for in the Nebraska notary law (Ch. 64, Articles 1 & 2) or

Being convicted of a felony or other crime involving fraud or dishonesty

Upon finding after an administrative hearing that a notary has committed malfeasance in office, the notary’s commission shall be suspended or revoked

Complaint Procedure

The Secretary of State has developed a complaint form for complaints against notaries public

The form is available on our website or from our office upon request

Complaints received are investigated by the Secretary of State as appropriate and forwarded to the notary for response

If the Secretary determines that malfeasance in office may have occurred the notary is given the option of surrendering their commission or having a hearing to make a formal determination on the allegations

If the Secretary of State determines that malfeasance did not occur, the complaint will be dismissed, but remain on the record in the notary’s file

Do’s and Don’ts

A list of suggested do’s and don’ts for notaries is included in your Notary Public Handout and available on our website

Some of the suggestions on the list are not specifically outlined in statute, but are considered “best practices”

Miscellaneous

Record Keeping Fees Apostilles and Authentications Mobile Notary Signing Agents

Record Keeping

State law does not require any specific record keeping by notaries

The Secretary of State strongly recommends the use of notary journals

Notary journals record time and date of notarial acts, who was present, form of identification, etc.

Notary Journals are available through state and national notary association and business supply stores

Many complaints filed with the Secretary of State’s Office could be settled quickly if a complete notary journal entry were recorded at the time of the notarial act

FEES

A notary may charge $2.00 for administering an oath and $5.00 for each notarial certificate and seal completed, and mileage for actual miles traveled to perform the act

The mileage rate is established by the state and piggybacks off the IRS business mileage rate

The 2004 rate is 37.5 cents a mile A notary whose commission was paid for by

their government employer may not charge the above fees

The statutory fee for taking a deposition is repealed by LB315

Apostilles and Authentications

Apostilles and Authentications are issued by the Secretary of State (address is in our handout and the end of this powerpoint presentation) for use in international transactions

The Secretary of State certifies that the notary or other official named on the document is authorized to act as such in Nebraska and the signature matches the signature the Secretary has on record

Apostilles are issued to countries that are part of the Hague convention, Authentications are issued to all other countries

Apostilles and AuthenticationsContinued

Notaries, judges, county clerks etc. are not authorized to issue authentications or apostilles

If you are called upon to perform a notarial act on a document to be used for an international transaction pay particular attention to making sure everything is in order, the seal is stamped without overlapping the document, dates and venue are correct, etc.

Rejection of a document that has been “apostilled” or authenticated may cause someone who has traveled overseas to complete an adoption, for example, to be unable to complete the transaction

Mobile Notary Signing Agents

The idea of the “Mobile Notary Signing Agent” has been promoted widely as a service to clients and a way for notaries to earn income

While the practice of Mobile Notary Signing Agent is not illegal, it is also not specifically authorized in statute

Fees for notarial services are established by law and may not be exceeded, for more information go to the Secretary of State’s notary website

BREAK

NEBRASKA NOTARY HANDBOOK

Definitions Practices and Procedures Signature by Mark Notary Statutes

Questions?

THANK YOU!

JOHN A. GALE Nebraska Secretary of State

Business Services Division: Notary

1445 “K” St., 1301 State Capitol Bldg.

PO Box 95104 * Lincoln, NE 68509

(402) 471-2558 or (402) 471-4094http://www.sos.state.ne.us/Notary/notary.htm