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WY Senate File 150

Legislation

State: Wyoming
Signed: March 03, 2011

Effective: July 01, 2011
Chapter: 113

Summary

Senate Bill 150 adopts many of the NNA‟s most esteemed best Notary practices and ethical standards taken from the Model Notary Act of 2010. It including a solid definition of the “satisfactory evidence of identity” a notarial officer must obtain to perform a notarial act. For the first time, a state has adopted the Model Notary Act’s “verification of fact” notarial act. However, the bill also contains a vaguely-worded definition of the terms “personally appear,” “in the presence of,” and “appear before” which could erode the integrity of notarial acts in Wyoming.

Affects

Creates Sections 34-26-201 through 34-26-206 and 34-26-301 through 34-26-304 in and amends Sections 1-2-102, 2-11-105, 6-5-114, 9-1-305, 29-7-202, 32-1-105, 34-2-133, 34-5-101, 34-5-104, 34-26-101, 34-26-102, 34-26-103, 34-26-104, 34-26-106, 34-26-107, 34.1-3-505 of the Wyoming Statutes.

Changes

Definitions

  1. Defines “affirmation,” “commission,” “commissioned notarial officer,” “credible witness,” “jurat,” “ ‘notarial certificate’ and ‘certificate,’ ” “oath,” “personal knowledge of identity,” “principal,” “regular place of business,” “satisfactory evidence of identity,” “seal” and “verification of fact,” all which borrow heavily from the Model Notary Act definitions of these terms.
  2. Defines “personally appear,” “in the presence of,” and “appear before” to mean that (a) the principal is in the notarial officer’s presence at the time of notarization; or (b) the principal confirmed to the notarial officer that the principal signed the document. 
  3. Defines “satisfactory evidence” as: (a) the notarial officer’s personal knowledge of the signer; (b) at least 1 current document issued by a federal, state or tribal government agency bearing a photographic image of the individual’s face and signature and a physical description of the bearer; (c) the oath or affirmation of 1 credible witness unaffected by the document and who personally knows the notarial officer and signer; and  (d) the oath or affirmation of 2 credible witnesses unaffected by the document who each personally know the signer and show to the officer documentary identification as specified in (b) above.

Standards for Notarial Acts

  1. Clarifies that a properly stamped passport without a physical description satisfies the definition of “satisfactory evidence.”
  2. Clarifies that in a signature witnessing, the signer must be personally known to the notarial officer or identified through satisfactory evidence, must appear in person before the notarial officer and must make the signature in the presence of the notarial officer.
  3. Stipulates that to certify a copy, a notarial officer must have the original document in his or her presence and copy or supervise the copying of the document using a photographic or electronic copying process.
  4. Clarifies that a notarial officer may not certify a copy of a vital record or publicly recordable document. Adopts the Model Notary Act’s notarial act of verification of fact, the first state to adopt this provision. In a verification of fact, a notarial officer reviews public or vital records to ascertain or confirm any of the following facts regarding a person: (a) date of birth or death; (b) name of parent, offspring or sibling; (c) date of marriage or divorce; or (e) name of marital partner.
  5. Clarifies that any person authorized to perform notarial acts may do so without a commission unless the person is a Notary Public. 
  6. Clarifies that notarial officers are authorized to administer oaths.
  7. Clarifies that a Notary issued a commission to perform notarial acts is a notarial officer and has the powers and authority vested by the Wyoming Uniform Law on Notarial Acts.
  8. Stipulates that a certificate of a notarial act shall be received as presumptive evidence that a natural person or persons appearing before the notarial officer were known to the officer to be the person or persons described in and who executed the document, and that the person or persons admitted that the document was acknowledged freely and voluntarily. 
  9. Stipulates, if the document was executed by an attorney in fact, that a certificate of a notarial act shall be received as presumptive evidence that that the attorney in fact who signed the document on behalf of the principal signer appeared before the notarial officer, was known to the officer to be the party who executed the document on behalf of the natural person, and that the attorney in fact acknowledged that the document was executed as the free and voluntary act of the natural person.
  10. Stipulates, if the document was executed by a corporation or other entity which is not a natural person,  that a certificate of a notarial act shall be received as presumptive evidence that the official who signed the instrument appeared before and was personally known to the officer making the certificate and was duly sworn and upon oath represented that the person was the president or other officer or agent of the corporation/entity, that the seal affixed to the instrument is the corporate seal of the corporation/entity, that the instrument was signed and sealed on behalf of the corporation/ entity by the authority of the board of directors or trustees thereof and that the officer who executed the instrument acknowledged the instrument to be the free act and deed of the corporation or entity. If the corporation or entity does not have a corporate seal, a recital of that fact must be inserted at the end of the certificate by the notarial officer.
  11. States that a properly executed jurat satisfies any requirement for an acknowledgment.

Signature by Mark

  1. Permits a notarial officer to perform an acknowledgment, jurat or signature witnessing by mark if the document is witnessed by 2 witnesses unaffected by the document, both witnesses sign their names beside the mark and the notarial officer writes below the mark, “Mark affixed by (name of signer by mark) in presence of (names and addresses of witnesses) and undersigned notarial officer under W.S. 34-26-201(c).”
  2. Permits a notarial officer to sign the name of a person physically unable to sign or make a mark on a document for an acknowledgment, jurat or signature witnessing if the person directs the notarial officer do sign in the presence of 2 witnesses unaffected by the document, both witnesses sign their names beside the signature and the notarial officer writes below the signature, “Signature affixed by notarial officer in the presence of (names and addresses of witnesses) and undersigned notarial officer under W.S. 34-26-201(c).”

Disqualifications and Prohibited Acts

  1. Disqualifies a notarial officer from performing a notarial act if the notarial officer: (a) is a party to or named in the document; and (b) will receive as a direct result any commission, fee, advantage, right, title interest, cash, property or other consideration exceeding in value the fees for a notarial act prescribed by statute.  However, the bill clarifies that a notarial officer who is a signing agent may collect a fee for an assignment as a signing agent if payment of the fee is not contingent upon the signing of any document. 
  2. Prohibits a notarial officer from performing a notarial act if the signer: (a) is not in the officer’s presence at the time of notarization; or (b) is not personally known to the notarial officer or identified by the notarial officer through satisfactory evidence.
  3. Prohibits a notarial officer who is not an attorney from influencing a person to enter into or avoid a transaction involving a notarial act. 
  4. Prohibits a notarial officer from: (a) executing a certificate containing information known or believed by the officer to be false; (b) providing or sending a signed or sealed certificate to another person with the understanding that it will be completed or attached to the document outside of the officer’s place of business; (c) notarizing a signature on a document without notarial certificate wording; (d) certifying or authenticating a photograph; (e) performing an act with the intent to deceive or defraud; and   (f) using the official seal to endorse, promote, denounce or oppose any product, service, contest, candidate or other offering.

Fees for Notarial Acts

  1. Prescribes the maximum fees a notarial officer may charge for performing any notarial act and clarifies that the officer may charge the maximum fee, a lesser fee or may waive the fee.
  2. Stipulates that a notarial officer may charge a travel fee if the officer and the person requesting the notarial act agree upon the travel fee in advance of travel and the officer explains to the person that the travel fee is both separate from the notarial fee, if any, and neither specified nor mandated by law.
  3. Prescribes that a notarial officer may require payment of the fee for a notarial act prior to performance of the act.
  4. Clarifies that a fee paid to the notarial officer prior to performance of a notarial act is nonrefundable if the act was completed or, in case of a travel fee, the act was not completed for reasons stated in W.S. 34-26-302(b)(i) or (ii) or after the officer had traveled to the person.
  5.  Permits an employer of an employee who is a notarial officer from charging for notarial acts performed as part of the employee’s employment.
  6. Permits a governmental employer who has absorbed the costs for an employee to become and operate as a notarial officer to require that all fees for notarial acts performed as part of the employee’s employment either be waived or surrendered to the employer in order to support government programs.

Other Provisions

  1. Clarifies that a notarial officer has neither the duty nor the authority to investigate, ascertain or attest the lawfulness, propriety, accuracy or truthfulness of a document or transaction involving a notarial act.
  2. Clarifies that a notarial officer commits a misdemeanor punishable by imprisonment for not more than 6 months, a fine of not more than $750.00, or both, if the officer signs and affixes his or her seal to a certificate of acknowledgment when the party executing the instrument has not first acknowledged the execution of the instrument in the presence of the notarial officer, as defined in W.S. 34-26-101(b)(xxi). (Note: See # 2 above).
  3. Makes minor technical and conforming changes (e.g., changes “notary” to “notarial officer” in parts throughout the Wyoming Statutes. As a result, the new rules apply to all officials with  notarial powers.
Analysis

In Senate File 150, the state of Wyoming enacts major portions of the Model Notary Act of 2010. Many definitions and ethical provisions from the MNA are adopted, making the bill one of the more substantive enactments of the MNA to date. Significantly, the bill defines “satisfactory evidence” a Notary (or notarial officer) must use to identify document signers, and the specifics are largely taken from the MNA. It authorizes notarization of a signature by mark and permits a notarial officer to sign a document at the direction of a person who is physically unable to sign or make a mark. The bill also forbids notarial officers from notarizing when they have a disqualifying interest in the transaction and influencing a signer to sign or not to sign a document requiring a notarial act. A notarial officer also may not deceive or defraud a signer, may not notarize when the document does not contain notarial certificate wording or complete a notarial certificate containing information the officer knows is false, may not send a notarial certificate to another person or allow another person to attach a certificate outside of the officer’s place of business, or may not certify or authenticate a photograph.  In addition, SB 150 adopts provisions from the MNA related to fees for notarial acts, including the travel fee, imposition and waiver of fee and fee payment prior to act provisions.

An eleventh-hour amendment to the bill defining the terms “personally appear,” “in the presence of” and “appear before me” was added by the House just before the House voted unanimously to enact SF 150. It defines these terms as meaning either the principal is in the notarial officer’s presence at the time of notarization or “the principal confirmed to the notarial officer that the principal signed the document.” This phrase could refer to the principal’s use of a subscribing witness or third party to confirm to the notarial officer that the principal signed the document, or that the principal used any means of confirmation short of actually appearing in the presence of the notarial officer. This is a vague provision that could potentially undermine the integrity of notarial acts in Wyoming.

Read Senate File 150.

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