HB-6197, As Passed Senate, September 20, 2006

SUBSTITUTE FOR

HOUSE BILL NO. 6197

     A bill to amend 2003 PA 238, entitled

"Michigan notary public act,"

by amending sections 5, 11, 13, 15, 17, 19, 21, 25, 31, 35, 51, and

53 (MCL 55.265, 55.271, 55.273, 55.275, 55.277, 55.279, 55.281,

55.285, 55.291, 55.295, 55.311, and 55.313).

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 5. As used in this act:

     (a) "Jurat" means a certification by a notary public that a

signer, whose identity is personally known to the notary public or

proven on the basis of satisfactory evidence, has made in the

presence of the notary public a voluntary signature and taken an

oath or affirmation vouching for the truthfulness of the signed

record.

     (b) "Lineal ancestor" means an individual in the direct line

of ascent including, but not limited to, a parent or grandparent.

     (c) "Lineal descendant" means an individual in the direct line

of descent including, but not limited to, a child or grandchild.

(d)  (b) "Notarial act" means any act that a notary public

commissioned in this state is authorized to perform including, but

not limited to, the taking of an acknowledgment, the administration

of an oath or affirmation, the taking of a verification upon oath

or affirmation, and the witnessing or attesting a signature

performed in compliance with this act and the uniform recognition

of acknowledgments act, 1969 PA 57, MCL 565.261 to 565.270.

(e)  (c) "Notify" means to communicate or send a message by a

recognized mail, delivery service, or electronic means.

(f)  (d) "Official misconduct" means either or both of the

following:

     (i) The exercise of power or the performance of a duty that is

unauthorized, unlawful, abusive, negligent, reckless, or injurious.

     (ii) The charging of a fee that exceeds the maximum amount

authorized by law.

(g)  (e) "Person" means every natural person, corporation,

partnership, trust, association, or other legal entity and its

legal successors.

(h)  (f) "Record" means that term as defined in the uniform

electronic transactions act, 2000 PA 305, MCL 450.831 to 450.849.

(i)  (g) "Revocation" means the termination of a notary

public's commission.

     Sec. 11. (1) The secretary may appoint as a notary public a

person who applies to the secretary and meets all of the following

qualifications:

     (a) Is at least 18 years of age.

     (b) Is a resident of this state or maintains a principal place

of business in this state.

     (c) Reads and writes in the English language.

     (d) Is free of any felony convictions, misdemeanor

convictions, and violations as described in section 41.

     (e) For a person who does not reside in the state of Michigan,

demonstrates that his or her principal place of business is located

in the county in which he or she requests appointment and indicates

that he or she is engaged in an activity in which he or she is

likely to be required to perform notarial acts as that word is

defined in section 2 of the uniform recognition of acknowledgments

act, 1969 PA 57, MCL 565.262.

     (f) Has filed with the county clerk of his or her county of

residence or expected appointment a proper surety bond and  has

taken the  an oath taken as prescribed by the constitution in a

format acceptable to the secretary.

     (2) The secretary shall, on a monthly basis, notify the county

clerk's office of the appointment of any notaries.

     Sec. 13. (1) Within 90 days before filing an application for a

notary public appointment, a person shall file with the county

clerk of his or her residence or expected appointment a proper

surety bond and  take the  an oath taken as prescribed by the

constitution.

     (2) The bond shall be in the sum of $10,000.00 with good and

sufficient surety by a surety licensed to do business in this

state. The bond shall be conditioned upon indemnifying or

reimbursing a person, financing agency, or governmental agency for

monetary loss caused through the official misconduct of the notary

public in the performance of a notarial act. The surety is required

to indemnify or reimburse only after a judgment based on official

misconduct has been entered in a court of competent jurisdiction

against the notary public. The aggregate liability of the surety

shall not exceed the sum of the bond. The surety on the bond may

cancel the bond 60 days after the surety notifies the notary, the

secretary,  in a format prescribed by the secretary, and the

county clerk of the cancellation. The surety is not liable for a

breach of a condition occurring after the effective date of the

cancellation. The county clerk shall not accept the personal assets

of an applicant as security for a surety bond under this act.

     (3) Each person who files an oath and bond with a county clerk

as required in subsection (1) shall pay a $10.00 filing fee to the

county clerk. Upon receipt of the filing fee, the county clerk

shall give a bond and oath certificate of filing to the person as

prescribed by the secretary. A charter county with a population of

more than 2,000,000 may impose by ordinance a fee for the county

clerk's services different than the amount prescribed by this

subsection. Two dollars 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.

     Sec. 15. (1) A person 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 signature of the applicant. In addition to other

information as may be required by the secretary, the application

shall include all of the following:

     (a) The applicant's name, residence address, business address,

date of birth, and residence and business telephone numbers.

     (b) The applicant's driver license or state personal

identification card number.

     (c) A validated copy of the filing of the bond and oath

certificate  of filing 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  other  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.

     (2) Each application shall be accompanied by an application

processing fee of $10.00. One dollar of each fee collected under

this subsection shall be deposited into the notary education and

House Bill No. 6197 (H-1) as amended September 7, 2006

training fund established in section 17 on a schedule determined by

the secretary.

     (3) Upon receipt of an application that is accompanied by the

prescribed  service charge  processing fee, the secretary may

inquire as to the qualifications of the applicant and shall

determine whether the applicant meets the qualifications prescribed

in this act. To assist in deciding whether the applicant is

qualified, the secretary may use the law enforcement information

network as provided in the  L.E.I.N.  C.J.I.S. policy council act,

of 1974, 1974 PA 163, MCL 28.211 to  28.216  28.215, to check the

criminal background of the applicant.

     (4) After approval of the application, the secretary shall

mail directly to the applicant the certificate of appointment as a

notary public. Each certificate of appointment shall identify the

person as a notary public of this state and shall specify the term

and county of the person's commission.

Sec. 17. (1) The notary education and training fund is created

within the state treasury. Money from fees collected under sections

13(3), 15(2), and 21(4) shall be deposited into the fund.

     (2) The state treasurer may receive money or other assets from

any source for deposit into the fund. The state treasurer shall

direct the investment of the fund. The state treasurer shall credit

to the fund interest and earnings from fund investments.

     (3) Up to  $85,000.00 [$150,000.00] shall remain in the fund at

the close of each fiscal year and shall not lapse to the general

fund. Any amount in excess of  $85,000.00 [$150,000.00] shall lapse

to the general fund.

     (4) The secretary shall expend money from the fund in the form

of grants, upon appropriation, for the purposes of providing

education and training programs for county clerks and their staffs

including, but not limited to, notary responsibilities, election

worker training, and election processes. The secretary shall

consult with the president of the Michigan association of county

clerks, or his or her designee, when approving grant applications

under this section.

     (5) The secretary shall annually file a report regarding the

balance of the fund at the time of the report and a detailed

account of the expenditures in the preceding fiscal year. This

report shall be sent to the speaker of the house of

representatives, the minority leader of the house of

representatives, the majority leader of the senate, and the

minority leader of the senate.

     Sec. 19. (1) The secretary shall not automatically reappoint a

notary public.

     (2) A person desiring another notary public appointment may

apply to the secretary, in a format prescribed by the secretary,

for an original appointment as a notary public. The application may

be made not more than 60 days before the expiration of his or her

current notary public commission.

     (3) The secretary shall automatically cancel the notary public

commission of any person who makes, draws, utters, or delivers any

check, draft, or order for the payment of a  service charge

processing fee under this act that is not honored by the bank,

financial institution, or other depository expected to pay the

check, draft, or order for payment upon its first presentation.

     Sec. 21. (1) A notary public shall immediately apply to the

secretary, in a format prescribed by the secretary, for a corrected

notary public commission upon the occurrence of any of the

following circumstances:

     (a) A change in the notary public's name.

     (b) A change in the notary public's residence or business

address.

     (c) The issuance by the secretary of a notary public

commission that contains an error in the person's name, birth date,

county, or other pertinent information if the error was made on the

notary public's application and was used by the secretary to

appoint the person as a notary public.

     (2) A notary public shall immediately notify both the

secretary and the county clerk of his or her appointment, in a

format prescribed by the secretary, upon any change in the factual

information stated in the notary public's application for

appointment.

     (3) The secretary shall notify the county clerk of the

applicant's appointment when a corrected commission is issued by

the secretary.

     (4) If a notary public's certificate of appointment becomes

lost, mutilated, or illegible, the notary public shall promptly

apply to the secretary for the issuance of a duplicate certificate.

The application shall be made on a form prescribed by the secretary

and be accompanied by a processing fee of $10.00. One dollar of

each processing fee collected under this subsection shall be

deposited into the notary education and training fund established

in section 17.

     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.

     (c) Witnessing or attesting to a signature.

     (2) In taking an acknowledgment, the notary public shall

determine, either from personal knowledge or from satisfactory

evidence, that the person in the presence of the notary public and

making the acknowledgment is the person 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 in the presence of the

notary public and making the verification is the person 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 in

the presence of the notary public and is the person 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 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 is

the person whose signature is on a record if that person 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.

     (c) Identified on the basis of a current license,

identification card, or record issued by a federal or state

government that contains the person's photograph and signature.

     (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

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  service charge  processing

fee of $10.00 for certifying a notarial act of a notary public.

     Sec. 31. (1) A notary public shall not certify or notarize

that a record is either of the following:

     (a) An original.

     (b) A true copy of another record.

     (2) A notary public shall not do any of the following:

     (a) Perform a notarial act upon any record executed by himself

or herself.

     (b) Notarize his or her own signature.

     (c) Take his or her own deposition or affidavit.

     (3) A notary public shall not claim to have powers,

qualifications, rights, or privileges that the office of notary

does not provide, including the power to counsel on immigration

matters.

     (4) A notary public shall not, in any document, advertisement,

stationery, letterhead, business card, or other comparable written

material describing the role of the notary public, literally

translate from English into another language terms or titles

including, but not limited to, notary public, notary, licensed,

attorney, lawyer, or any other term that implies the person is an

attorney.

     (5) A notary public who is not a licensed attorney and who

advertises notarial services in a language other than English shall

include in the document, advertisement, stationery, letterhead,

business card, or other comparable written material the following,

prominently displayed in the same language:

House Bill No. 6197 (H-1) as amended September 7, 2006

     (a) The statement: "I am not an attorney and have no authority

to give advice on immigration or other legal matters".

     (b) The fees for notarial acts as specified by statute.

     (6) A notary public may not use the term "notario publico" or

any equivalent non-English term in any business card,

advertisement, notice, or sign.

     (7) A notary public shall not perform any notarial act in

connection with a transaction if the notary public has a conflict

of interest. As used in this subsection, "conflict of interest"

means either or both of the following:

     (a) The notary public has a direct financial or beneficial

interest, other than the notary public fee, in the transaction.

     (b) The notary public is named, individually, as a grantor,

grantee, mortgagor, mortgagee, trustor, trustee, beneficiary,

vendor, vendee, lessor, or lessee or as a party in some other

capacity to the transaction.

     (8) A notary public shall not perform a notarial act for a

spouse, [domestic partner,] lineal ancestor, lineal descendant, or

sibling including in-laws, steps, or half-relatives.

     (9) A notary public shall not perform any notarial act on a

record that contains a blank space.

(9)  (10) A notary public who is a stockholder, director,

officer, or employee of a bank or other corporation may take the

acknowledgment of a party to a record executed to or by the

corporation, or to administer an oath to any other stockholder,

director, officer, employee, or agent of the corporation. A notary

public shall not take the acknowledgment of a record by or to a

bank or other corporation of which he or she is a stockholder,

director, officer, or employee, under circumstances where the

notary public is named as a party to the record, either

individually or as a representative of the bank or other

corporation and the notary public is individually a party to the

record.

(10)  (11) For purposes of subsection (7), a notary public

has no direct financial or beneficial interest in a transaction

where the notary public acts in the capacity of an agent, employee,

insurer, attorney, escrow, or lender for a person having a direct

financial or beneficial interest in the transaction.

     Sec. 35. (1) Upon receiving a written or electronic request

from the secretary, a notary public shall do all of the following

as applicable:

     (a) Furnish the secretary with a copy of the notary public's

records that relate to the request.

     (b) Within 15 days after receiving the request, respond to the

secretary with information that relates to the official acts

performed by the notary public.

     (c) Permit the secretary to inspect his or her notary public

records, contracts, or other information that pertains to the

official acts of a notary public if those records, contracts, or

other information is maintained by the notary public.

     (2) Upon presentation to the secretary of satisfactory

evidence that a notary public has failed to respond within 15 days

or another time period designated under this act to a request of

the secretary under subsection (1), the secretary may notify the

notary public that his or her notary public commission is suspended

indefinitely until he or she provides a satisfactory response to

the request.

     Sec. 51. (1) The notary fees fund is created in the state

treasury. Except as otherwise provided in sections 15(2) and 21(4),

an application processing fee, duplicate notary public certificate

of appointment  service charge  processing fee, certification

service charge  processing fee, copying  service charge  processing

fee, reimbursement costs, or administrative fine collected under

this act by the secretary  of state shall be deposited by the

state treasurer in the notary fees fund and is appropriated to

defray the costs incurred by the secretary in administering this

act.

     (2) A processing or filing fee paid to the secretary or county

clerk under this act is not refundable.

     Sec. 53. A person, or the personal representative of a person

who is deceased, who both performed a notarial act and created a

record of the act performed while commissioned as a notary public

under this act shall maintain all the records of that notarial act

for at least 5 years after the date of the notarial act.