| 1 | 1 | | 23 LC 52 0201 |
|---|
| 2 | 2 | | S. B. 265 |
|---|
| 3 | 3 | | - 1 - |
|---|
| 4 | 4 | | Senate Bill 265 |
|---|
| 5 | 5 | | By: Senators Tillery of the 19th, Dugan of the 30th, Hufstetler of the 52nd, Gooch of the |
|---|
| 6 | 6 | | 51st, Summers of the 13th and others |
|---|
| 7 | 7 | | A BILL TO BE ENTITLED |
|---|
| 8 | 8 | | AN ACT |
|---|
| 9 | 9 | | To amend Article 1 of Chapter 17 of Title 45 of the Official Code of Georgia Annotated, |
|---|
| 10 | 10 | | 1 |
|---|
| 11 | 11 | | relating to general provisions regarding notaries public, so as to provide for electronic2 |
|---|
| 12 | 12 | | notarization of certain notarial acts using real time audio-video communication technology3 |
|---|
| 13 | 13 | | when certain requirements are satisfied; to provide for and revise definitions; to provide for4 |
|---|
| 14 | 14 | | an electronic seal of office; to provide for requirements and exemptions; to provide for5 |
|---|
| 15 | 15 | | criminal penalties and civil liability, including compensatory and punitive damages; to6 |
|---|
| 16 | 16 | | provide for class action lawsuits; to provide for related matters; to provide for conforming7 |
|---|
| 17 | 17 | | changes; to provide an effective date; to repeal conflicting laws; and for other purposes.8 |
|---|
| 18 | 18 | | BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:9 |
|---|
| 19 | 19 | | SECTION 1.10 |
|---|
| 20 | 20 | | Article 1 of Chapter 17 of Title 45 of the Official Code of Georgia Annotated, relating to11 |
|---|
| 21 | 21 | | general provisions regarding notaries public, is amended by revising Code Section 45-17-1,12 |
|---|
| 22 | 22 | | relating to definitions, as follows:13 |
|---|
| 23 | 23 | | "45-17-1.14 |
|---|
| 24 | 24 | | As used in this article, the term:15 |
|---|
| 25 | 25 | | (1) 'Appear,' 'personally appear,' or 'in the presence of' means: |
|---|
| 26 | 26 | | 16 23 LC 52 0201 |
|---|
| 27 | 27 | | S. B. 265 |
|---|
| 28 | 28 | | - 2 - |
|---|
| 29 | 29 | | (A) Being in the same physical location as another individual at the same time and17 |
|---|
| 30 | 30 | | close enough to see, hear, communicate with, and exchange tangible identification18 |
|---|
| 31 | 31 | | credentials with such individual; or19 |
|---|
| 32 | 32 | | (B) Interacting with another individual by means of real-time two-way audio-video20 |
|---|
| 33 | 33 | | communication technology that complies with the provisions of this article.21 |
|---|
| 34 | 34 | | (1)(2) 'Attesting,' 'attestation,' or 'attested' means 'Attesting' and 'attestation' are22 |
|---|
| 35 | 35 | | synonymous and mean the notarial act of witnessing or attesting a signature or execution23 |
|---|
| 36 | 36 | | of a deed or other written instrument, where such notarial act does not involve the taking24 |
|---|
| 37 | 37 | | of an acknowledgment, the administering of an oath or affirmation, the taking of a25 |
|---|
| 38 | 38 | | verification, or the certification of a copy.26 |
|---|
| 39 | 39 | | (2)(3) 'Notarial act' means any act that a notary public is authorized by law to perform27 |
|---|
| 40 | 40 | | and includes, without limitation, attestation, the taking of an acknowledgment, the28 |
|---|
| 41 | 41 | | administration of an oath or affirmation, the taking of a verification upon an oath or29 |
|---|
| 42 | 42 | | affirmation, and the certification of a copy, as provided for in Code Section 45-17-8.30 |
|---|
| 43 | 43 | | (3)(4) 'Notarial certificate' means the notary's documentation of a notarial act.31 |
|---|
| 44 | 44 | | (5) 'Notary public' means an official of integrity who performs notarial acts and whose32 |
|---|
| 45 | 45 | | commission is granted or denied by a clerk of superior court in a county in this state as33 |
|---|
| 46 | 46 | | provided for in Code Section 45-17-2.3."34 |
|---|
| 47 | 47 | | SECTION 2.35 |
|---|
| 48 | 48 | | Said article is further amended by revising Code Section 45-17-6, relating to seal of office,36 |
|---|
| 49 | 49 | | as follows:37 |
|---|
| 50 | 50 | | "45-17-6.38 |
|---|
| 51 | 51 | | (a)(1) For the authentication of his any notarial acts, each notary public must provide a39 |
|---|
| 52 | 52 | | seal of office, which seal shall have for its impression his the notary's name, the words40 |
|---|
| 53 | 53 | | 'Notary Public,' the name of the state, and the county of his residence; or it shall have for41 |
|---|
| 54 | 54 | | its impression his the notary's name and the words 'Notary Public, Georgia, State at42 23 LC 52 0201 |
|---|
| 55 | 55 | | S. B. 265 |
|---|
| 56 | 56 | | - 3 - |
|---|
| 57 | 57 | | Large.' Notaries commissioned or renewing their commission after July 1, 1985, shall |
|---|
| 58 | 58 | | 43 |
|---|
| 59 | 59 | | provide a seal of office which shall have for its impression the notary's name, the words44 |
|---|
| 60 | 60 | | 'Notary Public,' the name of the state, and the county of his |
|---|
| 61 | 61 | | appointment. The45 |
|---|
| 62 | 62 | | embossment of notarial certificates by the notary's seal shall be authorized but not46 |
|---|
| 63 | 63 | | necessary, and the use of a rubber or other type stamp, including an electronic seal of47 |
|---|
| 64 | 64 | | office, shall be sufficient for imprinting the notary's seal. An electronic seal of office in48 |
|---|
| 65 | 65 | | an appropriate file format shall include the notary's name, commission number,49 |
|---|
| 66 | 66 | | commission expiration date, and the words 'Notary Public, Georgia, Electronic Seal.' A50 |
|---|
| 67 | 67 | | scrawl or initials shall not be a sufficient notary seal. An official notarial act must be51 |
|---|
| 68 | 68 | | documented by the notary's seal.52 |
|---|
| 69 | 69 | | (2) No document executed prior to July 1, 1986, which would otherwise be eligible for53 |
|---|
| 70 | 70 | | recording in the real property records maintained by any clerk of superior court or54 |
|---|
| 71 | 71 | | constitute record notice or actual notice of any matter to any person shall be ineligible for55 |
|---|
| 72 | 72 | | recording or fail to constitute such notice because of noncompliance with the requirement56 |
|---|
| 73 | 73 | | that the document contain a notary seal.57 |
|---|
| 74 | 74 | | (b) It shall be unlawful for any person, firm, or corporation to supply a notary public seal58 |
|---|
| 75 | 75 | | to any person unless the person has presented the duplicate original of the certificate59 |
|---|
| 76 | 76 | | commissioning the person as a notary public. It shall be unlawful for any person to order60 |
|---|
| 77 | 77 | | or obtain a notary public seal unless such person is commissioned as a notary public."61 |
|---|
| 78 | 78 | | SECTION 3.62 |
|---|
| 79 | 79 | | Said article is further amended by revising subsection (a) of Code Section 45-17-8, relating63 |
|---|
| 80 | 80 | | to powers and duties generally, as follows: 64 |
|---|
| 81 | 81 | | "(a) Notaries public, excepted as prohibited in subsection (c) of Code Section 45-17-9,65 |
|---|
| 82 | 82 | | shall have authority to:66 |
|---|
| 83 | 83 | | (1) Witness or attest signature or execution of deeds and other written instruments;67 |
|---|
| 84 | 84 | | (2) Take acknowledgments;68 23 LC 52 0201 |
|---|
| 85 | 85 | | S. B. 265 |
|---|
| 86 | 86 | | - 4 - |
|---|
| 87 | 87 | | (3) Administer oaths and affirmations in all matters incidental to their duties as |
|---|
| 88 | 88 | | 69 |
|---|
| 89 | 89 | | commercial officers and all other oaths and affirmations which are not by law required70 |
|---|
| 90 | 90 | | to be administered by a particular officer;71 |
|---|
| 91 | 91 | | (4) Witness affidavits upon oath or affirmation;72 |
|---|
| 92 | 92 | | (5) Take verifications upon oath or affirmation;73 |
|---|
| 93 | 93 | | (6) Make certified copies, provided that the document presented for copying is an74 |
|---|
| 94 | 94 | | original document and is neither a public record nor a publicly recorded document75 |
|---|
| 95 | 95 | | certified copies of which are available from an official source other than a notary and76 |
|---|
| 96 | 96 | | provided that the document was photocopied under supervision of the notary; and77 |
|---|
| 97 | 97 | | (7) Perform such other acts as they are authorized to perform by other laws of this state."78 |
|---|
| 98 | 98 | | SECTION 4.79 |
|---|
| 99 | 99 | | Said article is further amended by revising Code Section 45-17-8.1, relating to the signature80 |
|---|
| 100 | 100 | | and date of notarial act, as follows:81 |
|---|
| 101 | 101 | | "45-17-8.1.82 |
|---|
| 102 | 102 | | (a) Except as otherwise provided in this Code section, in documenting a notarial act, a83 |
|---|
| 103 | 103 | | notary public shall sign on the notarial certification, by hand in ink or electronically as |
|---|
| 104 | 104 | | 84 |
|---|
| 105 | 105 | | provided in Code Section 45-17-9, only and exactly the name indicated on the notary's85 |
|---|
| 106 | 106 | | commission and shall record on the notarial certification the exact date of the notarial act.86 |
|---|
| 107 | 107 | | (b) The requirement of subsection (a) of this Code section for recording of the date of the87 |
|---|
| 108 | 108 | | notarial act shall not apply to an attestation of deeds or any other instruments pertaining to88 |
|---|
| 109 | 109 | | real property.89 |
|---|
| 110 | 110 | | (c) No document executed prior to July 1, 1986, which would otherwise be eligible for90 |
|---|
| 111 | 111 | | recording in the real property records maintained by any clerk of superior court or91 |
|---|
| 112 | 112 | | constitute record notice or actual notice of any matter to any person shall be ineligible for92 |
|---|
| 113 | 113 | | recording or fail to constitute such notice because of noncompliance with the present or any93 |
|---|
| 114 | 114 | | prior requirements of this Code section."94 23 LC 52 0201 |
|---|
| 115 | 115 | | S. B. 265 |
|---|
| 116 | 116 | | - 5 - |
|---|
| 117 | 117 | | SECTION 5. |
|---|
| 118 | 118 | | 95 |
|---|
| 119 | 119 | | Said article is further amended by revising Code Section 45-17-9, relating to where notarial96 |
|---|
| 120 | 120 | | acts may be exercised, as follows:97 |
|---|
| 121 | 121 | | "45-17-9.98 |
|---|
| 122 | 122 | | (a) |
|---|
| 123 | 123 | | Notarial acts may be exercised in any county in the state.99 |
|---|
| 124 | 124 | | (b) Except as provided in subsection (c) of this Code section, the requirement that a100 |
|---|
| 125 | 125 | | notarial act occur in the presence of the notary public shall be satisfied when such act is101 |
|---|
| 126 | 126 | | performed remotely if:102 |
|---|
| 127 | 127 | | (1) The notary public is physically located in this state;103 |
|---|
| 128 | 128 | | (2) The notary public uses real-time two-way audio-video communication technology104 |
|---|
| 129 | 129 | | that meets the following requirements:105 |
|---|
| 130 | 130 | | (A) Allows the parties to see, hear, and communicate with each other; and106 |
|---|
| 131 | 131 | | (B) Is sufficiently secure to prevent interference with the authenticity, integrity, and107 |
|---|
| 132 | 132 | | security of the transaction, to prevent corruption or loss of the recording of the108 |
|---|
| 133 | 133 | | transaction, and to prevent unauthorized use of or tampering with the recording, record,109 |
|---|
| 134 | 134 | | and backup record;110 |
|---|
| 135 | 135 | | (3) The signatory is physically located in the United States, or one of its territories or111 |
|---|
| 136 | 136 | | military bases, or at a United States embassy, consulate, or diplomatic mission location;112 |
|---|
| 137 | 137 | | (4) The signatory presents evidence of his or her identity and location;113 |
|---|
| 138 | 138 | | (5) The notary public witnesses the signature; and114 |
|---|
| 139 | 139 | | (6) The notary public documents evidence of the acts provided for in paragraphs (1)115 |
|---|
| 140 | 140 | | through (5) of this subsection.116 |
|---|
| 141 | 141 | | (c) An electronic notarial act shall not be performed to:117 |
|---|
| 142 | 142 | | (1) Create or execute a will, codicil, or testamentary trust; or118 |
|---|
| 143 | 143 | | (2) Notarize the signature on any instrument or document executed for the conveyance119 |
|---|
| 144 | 144 | | of real property located in this state, whether or not such document is recorded.120 23 LC 52 0201 |
|---|
| 145 | 145 | | S. B. 265 |
|---|
| 146 | 146 | | - 6 - |
|---|
| 147 | 147 | | (d) A document electronically notarized as provided in subsection (b) of this Code section121 |
|---|
| 148 | 148 | | shall be deemed to have been executed in this state at the time of signature."122 |
|---|
| 149 | 149 | | SECTION 6.123 |
|---|
| 150 | 150 | | Said article is further amended by revising Code Section 45-17-20, relating to penalty and124 |
|---|
| 151 | 151 | | prosecution of violations of article, as follows:125 |
|---|
| 152 | 152 | | "45-17-20.126 |
|---|
| 153 | 153 | | (a) Any person who violates subsection (d) of Code Section 45-17-8 or performs any127 |
|---|
| 154 | 154 | | notarial act without complying with the provisions of this article shall, upon a first or128 |
|---|
| 155 | 155 | | second conviction, be guilty of a misdemeanor; provided, however, that, upon a third or129 |
|---|
| 156 | 156 | | subsequent conviction, such person shall be guilty of a felony, punishable by imprisonment130 |
|---|
| 157 | 157 | | of not less than one year nor more than five years, a fine of up to $5,000.00, or both.131 |
|---|
| 158 | 158 | | (b) Any person who performs any notarial service without complying with the provisions132 |
|---|
| 159 | 159 | | of this article shall, upon the first or second conviction, be guilty of a misdemeanor and133 |
|---|
| 160 | 160 | | upon a third or subsequent conviction be guilty of a felony, punishable by imprisonment134 |
|---|
| 161 | 161 | | of not less than one year nor more than five years, a fine of up to $5,000.00, or both. Any135 |
|---|
| 162 | 162 | | person, including, but not limited to, a notary public, a mortgage lender or its affiliates,136 |
|---|
| 163 | 163 | | employees, agents, and attorneys, or an attorney or the attorney's employee or agent, that137 |
|---|
| 164 | 164 | | aids or abets another person in violating this article, including, but not limited to, directing138 |
|---|
| 165 | 165 | | the performance of an unauthorized notarial act, shall, upon a first or second conviction,139 |
|---|
| 166 | 166 | | be guilty of a misdemeanor; provided, however, that, upon a third or subsequent140 |
|---|
| 167 | 167 | | conviction, such person shall be guilty of a felony, punishable by imprisonment of not less141 |
|---|
| 168 | 168 | | than one year nor more than five years, a fine of up to $5,000.00, or both."142 |
|---|
| 169 | 169 | | SECTION 7.143 |
|---|
| 170 | 170 | | Said article is further amended by adding a new Code section to read as follows:144 23 LC 52 0201 |
|---|
| 171 | 171 | | S. B. 265 |
|---|
| 172 | 172 | | - 7 - |
|---|
| 173 | 173 | | "45-17-21.145 |
|---|
| 174 | 174 | | (a) While participating in a residential or commercial real estate closing involving property146 |
|---|
| 175 | 175 | | located in this state, any person, including, but not limited to, a notary public, a mortgage147 |
|---|
| 176 | 176 | | lender or its affiliates, employees, agents and attorneys, or an attorney or the attorney's148 |
|---|
| 177 | 177 | | employee or agent, that engages in conduct that constitutes an unlawful notarial act,149 |
|---|
| 178 | 178 | | knowingly aids and abets another person in committing an unlawful notarial act, or150 |
|---|
| 179 | 179 | | otherwise violates the provisions of this article regulating real estate transactions, shall be151 |
|---|
| 180 | 180 | | liable for damages resulting from such illegal conduct. Such damages shall include, but152 |
|---|
| 181 | 181 | | not be limited to:153 |
|---|
| 182 | 182 | | (1) Actual monetary losses incurred by the plaintiff as a result of a violation of this154 |
|---|
| 183 | 183 | | article;155 |
|---|
| 184 | 184 | | (2) Any expenses paid by the plaintiff for the services of the notary public, mortgage156 |
|---|
| 185 | 185 | | lender or its affiliates, employees, agents, and attorneys, or attorney or attorney's157 |
|---|
| 186 | 186 | | employee or agent that violated this article;158 |
|---|
| 187 | 187 | | (3) De minimis or nominal damages incurred by the plaintiff as a result of a violation of159 |
|---|
| 188 | 188 | | this article; and160 |
|---|
| 189 | 189 | | (4) Any monetary losses incurred by a business competitor as a result of a violation of161 |
|---|
| 190 | 190 | | this article.162 |
|---|
| 191 | 191 | | (b) In addition to the penalties provided for in Code Section 45-17-20 and in subsection (a)163 |
|---|
| 192 | 192 | | of this Code section, in an individual cause of action, a court may award punitive damages164 |
|---|
| 193 | 193 | | of $1,000.00 per buyer and $1,000.00 per seller. The court shall consider the frequency165 |
|---|
| 194 | 194 | | and persistence of noncompliance by the defendant, the nature of such noncompliance, and166 |
|---|
| 195 | 195 | | the extent to which such noncompliance was intentional.167 |
|---|
| 196 | 196 | | (c) In addition to the penalties provided for in Code Section 45-17-20 and in subsection (a)168 |
|---|
| 197 | 197 | | of this Code section, in a class action lawsuit, a court may award punitive damages not169 |
|---|
| 198 | 198 | | exceeding $1,000.00 per class member, provided that the aggregate of such punitive170 |
|---|
| 199 | 199 | | damages not exceed the lesser of $500,000.00 or 1 percent of the collective net worth of171 23 LC 52 0201 |
|---|
| 200 | 200 | | S. B. 265 |
|---|
| 201 | 201 | | - 8 - |
|---|
| 202 | 202 | | the defendant. The court shall consider the frequency and persistence of noncompliance172 |
|---|
| 203 | 203 | | by the defendant, the nature of such noncompliance, the extent to which such173 |
|---|
| 204 | 204 | | noncompliance was intentional, the number of persons or sales impacted by the violation,174 |
|---|
| 205 | 205 | | the impact of the judgment, and the resources of the defendant.175 |
|---|
| 206 | 206 | | (d) The court may provide such equitable relief it deems necessary or proper, including176 |
|---|
| 207 | 207 | | invalidating the sale of the real estate property at issue and enjoining the defendants from177 |
|---|
| 208 | 208 | | further violations of this article.178 |
|---|
| 209 | 209 | | (e) A person shall not be held liable for punitive damages in any action brought under this179 |
|---|
| 210 | 210 | | article if the person shows by a preponderance of the evidence that the violation was not180 |
|---|
| 211 | 211 | | intentional and resulted from a bona fide error notwithstanding the maintenance of181 |
|---|
| 212 | 212 | | procedures implemented to avoid such error.182 |
|---|
| 213 | 213 | | (f) A cause of action brought under this Code section may be filed in any court of183 |
|---|
| 214 | 214 | | competent jurisdiction within this state without regard to the amount in controversy. Such184 |
|---|
| 215 | 215 | | cause of action shall be filed within one year from the date on which the violation occurred.185 |
|---|
| 216 | 216 | | (g) Upon a finding by the court that an action under this Code section was brought in bad186 |
|---|
| 217 | 217 | | faith and for the sole purpose of harassment, the court may award the defendant court costs187 |
|---|
| 218 | 218 | | and reasonable attorney fees."188 |
|---|
| 219 | 219 | | SECTION 8.189 |
|---|
| 220 | 220 | | This Act shall become effective upon its approval by the Governor or upon its becoming law190 |
|---|
| 221 | 221 | | without such approval.191 |
|---|
| 222 | 222 | | SECTION 9.192 |
|---|
| 223 | 223 | | All laws and parts of laws in conflict with this Act are repealed.193 |
|---|