MISSISSIPPI LEGISLATURE
2022 Regular Session
To: Judiciary A
By: Representative Carpenter
AN ACT TO CREATE A NEW SECTION WITHIN CHAPTER 34, TITLE 25, MISSISSIPPI CODE OF 1972, TO ENACT THE REMOTE ONLINE NOTARIZATION ACT; TO DEFINE TERMS; TO PROVIDE FOR REMOTE NOTARIZATION USING COMMUNICATION TECHNOLOGY; TO PROSCRIBE CERTAIN RESTRICTIONS; TO PROVIDE A PROCEDURE FOR A CERTIFICATE OF THE NOTARIAL ACT; TO PROVIDE FOR THE RETENTION OF RECORDS; TO AUTHORIZE THE SECRETARY OF STATE TO PROMULGATE RULES; TO AMEND SECTIONS 25-34-7, 25-34-9, 25-34-15, 25-34-31, 25-34-37 AND 25-34-39, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) As used in this section, the following terms have the meaning ascribed herein unless the context clearly requires otherwise:
(a) "Communication technology" means an electronic device or process that:
(i) Allows a notary public 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 a vision, hearing or speech impairment.
(b) "Foreign state" means a jurisdiction other than the United States, a state, or a federally recognized Indian tribe.
(c) "Identity proofing" means a process or service by which a third person provides a notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.
(d) "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.
(e) "Remotely located individual" means an individual who is not in the physical presence of the notary public who performs a notarial act under subsection (3) of this Section.
(2) A remotely located individual may comply with Section 25-34-15 by using communication technology to appear before a notary public.
(3) A notary public located in this state may perform a notarial act using communication technology for a remotely located individual if:
(a) The notary public:
(i) Has personal knowledge under Section 25-34-13(1) of the identity of the individual;
(ii) Has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public and identified by the notary public through:
1. Personal knowledge under Section 25-34-13(1); or
2. By using at least two (2) different types of identity proofing; or
(iii) 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 reasonably to confirm that a record before the notary public is the same record in which the remotely located individual made a statement or on which the individual executed a signature;
(c) The notary public, or a person acting on behalf of the notary public, creates an audio-visual recording of the performance of the notarial act; and
(d) For a remotely located individual located outside the United States:
(i) The record:
1. Is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or
2. Involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and
(ii) 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) If a notarial act is performed under this section, the certificate of notarial act required by Section 25-34-31 must indicate that the notarial act was performed using communication technology.
(5) A short-form certificate for a notarial act subject to this section is sufficient if it contains a statement substantially as follows: "This notarial act involved the use of communication technology."
(6) A notary public, guardian, conservator, or agent of a notary public, or personal representative of a deceased notary public shall retain the audio-visual recording created under subsection (3)(c) of this section or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Unless a different period is required by rule adopted under subsection (8)(d) of this section, the recording must be retained for a period of at least ten (10) years after the recording is made.
(7) Before a notary public performs the notary public's initial notarial act under this section, the notary public must notify the Secretary of State that the notary public will be performing notarial acts and identify the technologies the notary public intends to use. If the Secretary of State has established standards under subsection (8) of this section or Section 25-34-51 for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards.
(8) In addition to adopting rules under Section 25-34-51, the Secretary of State may adopt rules under this section regarding performance of a notarial act. The rules may:
(a) Prescribe the means of performing a notarial act involving a remotely located individual using communication technology;
(b) Establish standards for communication technology and identity proofing;
(c) Establish requirements or procedures to approve providers of communication technology and the process of identity proofing; and
(d) Establish standards and a period for the retention of an audio-visual recording created under subsection (3)(c) of this section.
(9) Before adopting, amending or repealing a rule governing performance of a notarial act with respect to a remotely located individual, the Secretary of State must consider:
(a) The most recent standards regarding the performance of a notarial act with respect to a remotely located individual promulgated by national standard-setting organizations and the recommendations of the National Association of Secretaries of State;
(b) Standards, practices, and customs of other jurisdictions that have laws substantially similar to this section; and
(c) The views of governmental officials and entities and other interested persons.
(10) By allowing its communication technology or identity proofing to facilitate a notarial act for a remotely located individual or by providing storage of the audio-visual recording created under subsection (3)(c) of this section, the provider of the communication technology, identity proofing, or storage appoints the Secretary of State as the provider's agent for service of process in any civil action in this state related to the notarial act.
SECTION 2. 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 an accurate representation 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 3. Section 25-34-9, Mississippi Code of 1972, is amended as follows:
25-34-9. (1) Except as provided in subsection (2) of this section, a notarial officer may charge a fee in an amount not to exceed Five Dollars ($5.00) for services rendered unless otherwise prohibited by law or by rules promulgated by the Secretary of State.
(2) For performing a notarial act using communication technology for a remotely located individual, a notarial officer may charge a fee in an amount not to exceed Twenty-five Dollars ($25.00).
SECTION 4. Section 25-34-15, Mississippi Code of 1972, is amended as follows:
25-34-15. Except as provided in Section 1 of this act, 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 physically in person before the notarial officer at the time of the notarial act.
SECTION 5. 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 as provided by this section or Section 1 of this act. Unless otherwise provided for by Section 1 of this act, 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) 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) 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 6. 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.
(2) A journal must be created on a tangible or electronic medium. A notary public shall maintain only one (1) physical journal at a time, but may maintain one or more electronic journals, to chronicle all notarial acts, whether those notarial acts are performed regarding tangible or electronic records. 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; and
(g) 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; and
(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.
SECTION 7. Section 25-34-39, Mississippi Code of 1972, is amended as follows:
25-34-39. (1) A notary public may perform a notarial act with respect to electronic records pursuant to this chapter.
(2) The Secretary of State has the sole power to determine the methods by which notarial acts with respect to electronic records may be implemented in this state. Those methods must be set forth in rules promulgated by the Secretary of State.
(3) A notary public seeking to perform notarial acts with respect to electronic records must file an additional registration with the Secretary of State subsequent to being granted a notary commission.
(4) A notary public may select one or more tamper-evident technologies with which to perform notarial acts with respect to electronic records, so long as the technologies comply with rules promulgated by the Secretary of State. A person may not require a notary public to perform a notarial act with respect to an electronic record with a technology that the notary public has not selected.
(5) A recorder shall accept for recording a tangible copy of an electronic record containing a notarial certificate as satisfying any requirement that a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic record.
SECTION 8. Section 1 of this act shall be codified as a separate section in Chapter 34, Title 25, Mississippi Code of 1972.
SECTION 9. This act shall take effect and be in force from and after July 1, 2022.