Arkansas Legislative Update

Arkansas Legislative Update

The Arkansas legislature recently amended its laws related to notaries public and enacted the Electronic Notary Public Act (the “Act”), effective July 30, 2017.

 

Arkansas House Bill 1450

 

Previously the law set forth specific amounts that a notary could charge and collect for certain actions.  The amendment authorizes notaries to perform notarial acts and to charge and collect a fee if the fee is:

  • A reasonable amount as determined by the notary; and
  • Disclosed to and agreed upon by the client or principal before executing the notarial act.

 

An employer is not permitted to cancel a surety bond of a current or former employee even if the employer paid for the surety bond on behalf of the employee.

 

A notary public may refuse to perform a notarial act for any reason, including when the principal:

  • Does not appear to understand the nature of the transaction;
  • Does not appear to be acting of his/her own free will;
  • Lacks the ability to sign a document using letters or characters of a language that is understood by the notary public; or
  • Is not able to communicate directly with the notary public in a language understood by the principal and the notary public.

 

A signature by mark is legal if the mark is:

  • Made by a person who at the time of signature lacks the ability to write or sign his/her name; and
  • Witnessed by at least 1 disinterested person.

 

The notary must write below a signature by mark: “Mark affixed by (name of signer by mark) in the present of (name of witnesses).”

 

When a principal is physically unable to sign or make a mark, a disinterested third party may sign the name of the principal if:

  • The principal directs the disinterested third party to sign his/her name in the presence of 2 disinterested witnesses;
  • The disinterested third party signs the name of the principal in the presence of the notary public, the principal, and the disinterested witnesses;
  • Each disinterested witness signs his/her own name beside the signature; and
  • The notary public notarizes the certificate.

 

A notary public must complete a notarial certificate that is worded in English.   It shall include:

  • The official signature of the notary public;
  • The official seal of the notary public;
  • The venue of the notarial act, including the name of the state and county; and
  • The date of the notarial act.

 

A notarial act is incomplete if:

  • The information within the certificate is known or believed by the notary to be false;
  • A notary affixes an official signature or seal on a certificate that is incomplete under the law;
  • An official signature or seal on a certificate is known to be executed at a time when the principal or signer was not present; or
  • A signed or sealed certificate is executed with the understanding that the certificate will be completed or attached to a document outside of the presence of the notary.

 

Arkansas House Bill 1479

 

“Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

 

“Electronic document” means information that is created, generated, sent, communicated, received, or stored by electronic means.

 

“Electronic notarial act” means an official act by a notary public performed with respect to an electronic document and using electronic means authorized by the Secretary of State.

 

“Electronic notarial certificate” means the portion of a notarized electronic document that:

  • Is completed by the notary public;
  • Bears the following of the notary public:
  • Signature or official electronic seal;
  • Official title;
  • Commission number;
  • Commission expiration date; and
  • All required information regarding the date and place of the electronic notarial act; and
  • States the facts attested to or certified by the notary public in an electronic notarization.

 

“Electronic notary seal” means information within a notarized document that includes:

  • The following information about the notary public:
  • Name;
  • Jurisdiction of appointment;
  • Commission number; and
  • Commission expiration date; and
  • Information that generally corresponds to dates in notary public seals utilized on paper documents.

 

“Electronic notary public” means a notary public registered with the Secretary of State and possesses the capability of performing electronic notarial acts.

 

“Notary public electronic signature” means the forms of electronic signatures that have been approved by the Secretary of State as an acceptable means for an electronic notary to affix his/her official signature to an electronic record that is being notarized.

 

“Physical proximity” means the principal and the notary public are physically close enough to see, hear, communicate, and give identification credentials to each other without reliance on an electronic device such as a telephone, computer, video camera, or facsimile machine.

 

“Registration” or “register” means a separate commission to perform electronic notarial acts.

 

“Solution provider” means a business entity that has submitted an application, meets standards, and has been approved by the Secretary of State to offer electronic notarization solutions to duly commissioned electronic notaries public.

 

A notary public who is appointed and commissioned by the Secretary of State (“SOS”) and who is in good standing is eligible to become an electronic notary public.

 

The SOS must require a notary public to register the capability to notarize electronically before performing an electronic notarial act and must also promulgate rules to enforce the requirement.

 

A person who seeks to become an electronic notary public must submit to the SOS:

  • An application stating the intent to become an electronic notary public on a form provided by the SOS;
  • An attestation that he/she has not been convicted of a felony; and
  • A filing fee of $20.

 

An applicant must:

  • Successfully complete an approved training course provide by the SOS; and
  • Pass an examination approved by the SOS (may take the exam up to 2 times in a 12-month period; otherwise, must repeat the application process).

 

The term of the electronic notary public may not extend past the expiration date of the surety bond for the traditional notary public commission.  Every 2 years of the commission, an electronic notary public must:

  • Complete a refresher training course offered and approved by the SOS; and
  • Remit to the SOS evidence of successful completion of the course identified above.

 

An electronic notarial act must be executed through an approved solution provider.  When performing an electronic notarial act, an electronic notary public must:

  • Complete an electronic notarial certificate that includes all information necessary in a paper-based notarization; and
  • Attach his/her electronic signature and seal to the certificate in a tamper-evident manner.

 

The electronic signature of an electronic notary public is reliable if the electronic seal is:

  • Unique to the electronic notary public;
  • Capable of independent verification;
  • Retained under the sole control of the electronic notary public; and
  • Attached to or associated with the electronic document in a tamper-evident manner.

 

The electronic notary public must not disclose access information used to affix the electronic signature except when requested by:

  • Law enforcement;
  • The courts; or
  • An electronic document preparation and transmission vendor.

 

An electronic notary public must not perform an electronic notarial act if the document signer does not appear in person before the electronic notary public at the time of the electronic notarial act.

 

The liability, sanctions, and remedies for the improper performance of electronic notarial acts are the same as those for the improper performance of a notarial act performed by a traditional notary public under state law.   An electronic notary public who knowingly charges, demands, or receives a fee not authorized or permitted by the law is guilty of a violation and can be fined, upon conviction, in a sum not less than $100 for each offense.