Act No. 238
Public Acts of 2003
Approved by the Governor
December 23, 2003
Filed with the Secretary of State
December 29, 2003
EFFECTIVE DATE: April 1, 2004
STATE OF MICHIGAN
92ND LEGISLATURE
REGULAR SESSION OF 2003
Introduced by Reps. Taub, Huizenga, Minore, Ward, Stakoe, Stahl, Moolenaar, Gaffney, DeRossett, Garfield, Nofs, Wenke and Hoogendyk
ENROLLED HOUSE BILL No. 4938
AN ACT to provide for the qualification, appointment, and regulation of notaries; to provide for the levy, assessment, and collection of certain service charges and fees and to provide for their disposition; to create certain funds for certain purposes; to provide for liability for certain persons; to provide for the admissibility of certain evidence; to prescribe powers and duties of certain state agencies and local officers; to provide for remedies and penalties; and to repeal acts and parts of acts.
The People of the State of Michigan enact:
Sec. 1. This act shall be known and may be cited as the "Michigan notary public act".
Sec. 3. As used in this act:
(a) "Acknowledgment" means the confirmation by a person in the presence of a notary public that he or she is placing or has placed his or her signature on a record for the purposes stated in the record and, if the record is signed in a representative capacity, that he or she is placing or has placed his or her signature on the record with the proper authority and in the capacity of the person represented and identified in the record.
(b) "Cancellation" means the nullification of a notary public commission due to an error or defect or because the notary public is no longer entitled to the commission.
(c) "Department" means the department of state.
(d) "Electronic" means that term as defined in the uniform electronic transactions act, 2000 PA 305, MCL 450.831 to 450.849.
(e) "Electronic signature in global and national commerce act" means Public Law 106-229, 114 Stat. 464.
(f) "Information" means that term as defined in the electronic signature in global and national commerce act.
(g) "In a representative capacity" means any of the following:
(i) For and on behalf of a corporation, partnership, trust, association, or other legal entity as an authorized officer, agent, partner, trustee, or other representative of the entity.
(ii) As a public officer, personal representative, guardian, or other representative in the capacity recited in the document.
(iii) As an attorney in fact for a principal.
(iv) In any other capacity as an authorized representative of another person.
(h) "In the presence of" means in compliance with section 101(g) of title I of the electronic signature in global and national commerce act, 15 USC 7001.
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) "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.
(c) "Notify" means to communicate or send a message by a recognized mail, delivery service, or electronic means.
(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.
(e) "Person" means every natural person, corporation, partnership, trust, association, or other legal entity and its legal successors.
(f) "Record" means that term as defined in the uniform electronic transactions act, 2000 PA 305, MCL 450.831 to 450.849.
(g) "Revocation" means the termination of a notary public's commission.
Sec. 7. As used in this act:
(a) "Secretary" means the secretary of state acting directly or through his or her duly authorized deputies, assistants, and employees.
(b) "Signature" means a person's written or printed name or electronic signature as that term is defined in the uniform electronic transactions act, 2000 PA 305, MCL 450.831 to 450.849, or the person's mark attached to or logically associated with a record including, but not limited to, a contract and executed or adopted by the person with the intent to sign the record.
(c) "Suspension" means the temporary withdrawal of the notary's commission to perform notarial acts during the period of the suspension.
(d) "Verification upon oath or affirmation" means the declaration by oath or affirmation that a statement is true.
Sec. 9. (1) The secretary may appoint as a notary public a person who complies with the requirements of this act.
(2) A notary public may reside in, move to, and perform notarial acts anywhere in this state from the date of appointment until the notary's birthday occurring not less than 6 years and not more than 7 years after the date of his or her appointment unless the appointment is canceled, suspended, or revoked by the secretary or by operation of law.
(3) The secretary shall not appoint as a notary public a person who is serving a term of imprisonment in a state correctional facility or jail in this or any other state or in a federal correctional facility.
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 oath as prescribed by the constitution.
(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 oath 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 copy 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 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 fee of $10.00. One dollar 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.
(3) Upon receipt of an application that is accompanied by the prescribed service charge, 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. policy council act of 1974, 1974 PA 163, MCL 28.211 to 28.216, 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 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 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 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 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 fee of $10.00. One dollar of each fee collected under this subsection shall be deposited into the notary education and training fund established in section 17.
Sec. 23. Before a notary public performs any notarial act, the notary public shall obtain and read a copy of all the current statutes of this state that regulate notarial acts.
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 fee of $10.00 for certifying a notarial act of a notary public.
Sec. 27. (1) A notary public shall place his or her signature on every record upon which he or she performs a notarial act. The notary public shall sign his or her name exactly as his or her name appears on his or her notary public certificate of appointment received from the secretary.
(2) On each record that a notary public performs a notarial act and immediately near the notary public's signature, as is practical, the notary public shall print, type, stamp, or otherwise imprint mechanically or electronically clearly and legibly and in a manner capable of photographic reproduction all of the following:
(a) The name of the notary public exactly as it appears on his or her notary public certificate of appointment.
(b) The statement: "Notary public, State of Michigan, County of ______________.".
(c) The statement: "My commission expires ______________.".
(d) The statement: "Acting in the County of ______________.".
(3) A notary public may use a stamp seal or electronic process that contains, at a minimum, all of the information required by subsection (2). However, the seal or process shall not be used in a manner that renders anything illegible on the record being notarized. An embosser alone or any other method that cannot be reproduced shall not be used.
(4) The illegibility of the statements required in subsection (2) does not affect the validity of the transaction or record that was notarized.
Sec. 29. (1) A notary public may use a notary form set forth in this section. A notary form set forth in this section shall be known as a plain English notary form and may be referred to by that name. A notary form set forth in this section that is properly executed is considered sufficient to accomplish its stated purpose under the law of this state. This section does not prohibit the use of other notary forms.
(2) An affidavit or sworn statement may be substantially in the following form:
SWORN STATEMENT OF MARY DOE
I, Mary Doe, (explanation of who Mary Doe is, followed by statements of fact made by Mary Doe).
Signature of Mary Doe
Mary Doe
Signed and sworn to before me in ____________ County, Michigan, on ______________, ______ (year).
Notary's Notary's
Stamp________________________ Signature___________________________
(Notary's name, county, acting in
county, and date commission expires)
(3) An acknowledgment for an individual acting in his or her own behalf may be substantially in the following form:
Acknowledged before me in ____________ County, Michigan, on ______________, ______ (year) by Mary Doe.
Notary's Notary's
Stamp________________________ Signature___________________________
(Notary's name, county, acting in
county, and date commission expires)
(4) An acknowledgment for a copartnership may be substantially in the following form:
Acknowledged before me in ____________ County, Michigan, on ______________, ______ (year) by Mary Doe, partner of X partnership, a Michigan copartnership, for the copartnership.
Notary's Notary's
Stamp________________________ Signature___________________________
(Notary's name, county, acting in
county, and date commission expires)
(5) An acknowledgment for a limited partnership may be substantially in the following form:
Acknowledged before me in ____________ County, Michigan, on ______________, ______ (year) by Mary Doe, general partner of X partnership, a Michigan limited partnership, for the limited partnership.
Notary's Notary's
Stamp________________________ Signature___________________________
(Notary's name, county, acting in
county, and date commission expires)
(6) An acknowledgment for a corporation may be substantially in the following form:
Acknowledged before me in ____________ County, Michigan, on ______________, ______ (year) by Mary Doe, president of X company, a Michigan corporation, for the corporation.
Notary's Notary's
Stamp________________________ Signature___________________________
(Notary's name, county, acting in
county, and date commission expires)
(7) An acknowledgment for a limited liability company may be substantially in the following form:
Acknowledged before me in ____________ County, Michigan, on ______________, ______ (year) by Mary Doe, member of X company, a Michigan limited liability company, for the company.
Notary's Notary's
Stamp________________________ Signature___________________________
(Notary's name, county, acting in
county, and date commission expires)
(8) An acknowledgment for a public officer may be substantially in the following form:
Acknowledged before me in ____________ County, Michigan, on ______________, ______ (year) by Mary Doe, director of the Michigan department of X.
Notary's Notary's
Stamp________________________ Signature___________________________
(Notary's name, county, acting in
county, and date commission expires)
(9) An acknowledgment for a trustee may be substantially in the following form:
Acknowledged before me in ____________ County, Michigan, on ______________, ______ (year) by Mary Doe, trustee of the X trust.
Notary's Notary's
Stamp________________________ Signature___________________________
(Notary's name, county, acting in
county, and date commission expires)
(10) An acknowledgment for a personal representative may be substantially in the following form:
Acknowledged before me in ____________ County, Michigan, on ______________, ______ (year) by Mary Doe, personal representative of the estate of John Doe.
Notary's Notary's
Stamp________________________ Signature___________________________
(Notary's name, county, acting in
county, and date commission expires)
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:
(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, 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.
(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.
(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. 33. A notary public may sign the name of a person whose physical characteristics limit his or her capacity to sign or make a mark on a record presented for notarization under all of the following conditions:
(a) The notary public is orally, verbally, physically, or through electronic or mechanical means provided by the person and directed by that person to sign that person's name.
(b) The person is in the physical presence of the notary public.
(c) The notary public inscribes beneath the signature:
"Signature affixed pursuant to section 33 of the Michigan notary public act.".
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.
(2) Upon presentation to the secretary of satisfactory evidence that a notary public has failed to respond within 15days 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. 37. (1) For the official misconduct of a notary public, the notary public and the sureties on the notary public's surety bond are liable in a civil action for the damages sustained by the persons injured. The employer of a notary public is also liable if both of the following conditions apply:
(a) The notary public was acting within the actual or apparent scope of his or her employment.
(b) The employer had knowledge of and consented to or permitted the official misconduct.
(2) A notary public and the notary public's sureties are not liable for the truth, form, or correctness of the contents of a record upon which the notary public performs a notarial act.
Sec. 39. The secretary may investigate, or cause to be investigated by local authorities, the administration of notary public laws and shall report violations of the notary public laws and rules to the attorney general or prosecuting attorney, or both, for prosecution.
Sec. 40. (1) The secretary may, on his or her own initiative or in response to a complaint, make a reasonable and necessary investigation within or outside of this state and gather evidence concerning a person who violated, allegedly violated, or is about to violate this act, a rule promulgated under this act, or an order issued under this act or concerning whether a notary public is in compliance with this act, a rule promulgated under this act, or an order issued under thisact.
(2) A person may file a complaint against a notary public with the secretary. A complaint shall be made in a format prescribed by the secretary and contain all of the following:
(a) The complainant's name, address, and telephone number.
(b) The complainant's signature and the date the complaint was signed.
(c) A complete statement describing the basis for the complaint.
(d) The actual record that is the basis for the complaint or a copy, photocopy, or other replica of the record.
(3) The secretary may investigate compliance with this act, the rules promulgated under it, or an order issued under it by examination of a notary public's records, contracts, and other pertinent records or information that relate to the official acts of the notary public.
Sec. 40a. (1) An applicant for an appointment or a commissioned notary public who has engaged in conduct prohibited by this act, a rule promulgated under this act, or an order issued under this act is subject to 1 or more of the following penalties, in addition to any criminal penalties otherwise imposed:
(a) Suspension or revocation of his or her certificate of appointment.
(b) Denial of an application for appointment.
(c) A civil fine paid to the department in an amount not to exceed $1,000.00.
(d) A requirement to take the affirmative action determined necessary by the secretary, including payment of restitution to an injured person.
(e) A letter of censure.
(f) A requirement to reimburse the secretary for the costs of the investigation.
(2) The secretary may impose 1 or more of the penalties listed in subsection (1) upon presentation to the secretary of satisfactory evidence that the applicant for an appointment or a commissioned notary public has done 1 or more of the following:
(a) Violated this act, a rule promulgated under this act, or an order issued under this act or assisted others in the violation of this act, a rule promulgated under this act, or an order issued under this act.
(b) Committed an act of official misconduct, dishonesty, fraud, deceit, or of any cause substantially relating to the duties or responsibilities of a notary public or the character or public trust necessary to be a notary public.
(c) Failed to perform his or her notary public duties in accordance with this act, a rule promulgated under this act, or an order issued under this act.
(d) Failed to fully and faithfully discharge a duty or responsibility required of a notary public.
(e) Been found liable in a court of competent jurisdiction for damages in an action grounded in fraud, misrepresentation, or violation of this act.
(f) Represented, implied, or used false or misleading advertising that he or she has duties, rights, or privileges that he or she does not possess by law.
(g) Charged a fee for a notarial act that was more than is allowed under this act.
(h) Failed to complete the notary public's acknowledgment at the time the notary public signed or affixed his or her signature or seal to a record.
(i) Failed to administer an oath or affirmation as required by law.
(j) Engaged in the unauthorized practice of law as determined by a court of competent jurisdiction.
(k) Ceased to maintain his or her residence or principal place of business in this state.
(l) Lacks adequate ability to read and write English.
(m) Hindered or refused a request by the secretary for notary public records or papers.
(n) Engaged in a method, act, or practice that is unfair or deceptive including the making of an untrue statement of a material fact relating to a duty or responsibility of a notary public.
(o) Violated a condition of probation imposed under subsection (1).
(p) Permitted an unlawful use of a notary public's seal.
(q) Failed to maintain good moral character as defined and determined under 1974 PA 381, MCL 338.41 to 338.47.
(3) Before the secretary takes any action under subsection (2), the person affected shall be given notice and an opportunity for a hearing.
(4) If a person holding office as a notary public is sentenced to a term of imprisonment in a state correctional facility or jail in this or any other state or in a federal correctional facility, that person's commission as a notary public is revoked automatically on the day on which the person begins serving the sentence in the jail or correctional facility. If a person's commission as a notary public is revoked because the person begins serving a term of imprisonment and that person performs or attempts to perform a notarial act while imprisoned, that person is not eligible to receive a commission as a notary public for at least 10 years after the person completes his or her term of imprisonment.
(5) Cancellation of a commission is without prejudice to reapplication at any time. A person whose commission is revoked is ineligible for the issuance of a new commission for at least 5 years.
(6) A fine imposed under this act that remains unpaid for more than 180 days may be referred to the department of treasury for collection. The department of treasury may collect the fine by deducting the amount owed from a payroll or tax refund warrant. The secretary may bring an action in a court of competent jurisdiction to recover the amount of a civil fine.
Sec. 41. (1) If a notary public of this state is convicted of a felony or of a substantially corresponding violation of another state, the secretary shall automatically revoke the notary public commission of that person on the date that the person's felony conviction is entered.
(2) If a notary public of this state is convicted of 2 or more misdemeanor offenses involving a violation of this act within a 12-month period while commissioned, or of 3 or more misdemeanor offenses involving a violation of this act within a 5-year period regardless of being commissioned, the secretary shall automatically revoke the notary public commission of that person on the date that the person's most recent misdemeanor conviction is entered.
(3) If a person holding office as a notary public is sentenced to a term of imprisonment in a state correctional facility or jail in this or any other state or in a federal correctional facility, that person's commission as a notary public is revoked automatically on the day on which the person begins serving the sentence in the jail or correctional facility. If a person's commission as a notary public is revoked because the person begins serving a term of imprisonment and that person performs or attempts to perform a notarial act while imprisoned, that person is not eligible to receive a commission as a notary public for at least 10 years after the person completes his or her term of imprisonment.
(4) A person found guilty of performing a notarial act after his or her commission is revoked under this section is guilty of a felony punishable by a fine of not more than $3,000.00 or by imprisonment for not more than 5 years, or both.
(5) A person, regardless of whether he or she has ever been commissioned as a notary public, that is convicted of a felony is disqualified from being commissioned as a notary public for not less than 10 years after the person completes his or her sentence for that crime, including any term of imprisonment, parole, or probation, and pays all fines, costs, and assessments. As used in this section, a "felony" means a violation of a penal law of this state, another state, or the United States for which the offender, upon conviction, may be punished by death or imprisonment for more than 1 year or an offense expressly designated by law to be a felony.
(6) If a person is convicted of a violation described in subsection (5), the court shall make a determination of whether the person is a notary. If the person is a notary, the court shall inform the secretary of the conviction.
Sec. 43. (1) Cancellation of a commission is without prejudice to reapplication at any time. Except as otherwise provided for in section 41(3), a person whose commission is revoked is ineligible for the issuance of a new commission for at least 5 years.
(2) A fine imposed under this act that remains unpaid for more than 180 days may be referred to the department of treasury for collection. The department of treasury may collect the fine by deducting the amount owed from a payroll or tax refund warrant. The secretary may bring an action in a court of competent jurisdiction to recover the amount of a civil fine.
Sec. 45. (1) Whenever it appears to the secretary that a person has engaged or is about to engage in an act or practice that constitutes or will constitute a violation of this act, a rule promulgated under this act, or an order issued under this act, the attorney general may petition a circuit court for injunctive relief. Upon a proper showing, a circuit court may issue a permanent or temporary injunction or restraining order to enforce the provisions of this act. A party to the action has the right to appeal within 60 days from the date the order or judgment of the court was issued.
(2) The court may order a person subject to an injunction or restraining order provided for in this section to reimburse the secretary for the actual expenses incurred in the investigation related to the petition. The secretary shall refund any amount received as reimbursement should the injunction or restraining order later be dissolved by an appellate court.
Sec. 47. (1) Subject to subsection (2) and in the courts of this state, the certificate of a notary public of official acts performed in the capacity of a notary public, under the seal of office, is presumptive evidence of the facts contained in the certificate except that the certificate is not evidence of a notice of nonacceptance or nonpayment in any case in which a defendant attaches to his or her pleadings an affidavit denying the fact of having received that notice of nonacceptance or nonpayment.
(2) Notwithstanding subsection (1), the court may invalidate any document not notarized in compliance with this act.
Sec. 49. (1) Except as otherwise provided for in section 41(4) or as provided by law, a person who violates this act is guilty of a misdemeanor punishable by a fine of not more than $5,000.00 or by imprisonment for not more than 1 year, or both.
(2) An action concerning a fee charged for a notarial act shall be filed in the district court in the place where the notarial act occurred.
(3) The penalties and remedies under this act are cumulative. The bringing of an action or prosecution under this act does not bar an action or prosecution under any other applicable law.
Sec. 51. The notary fees fund is created in the state treasury. Except as otherwise provided in sections 15(2) and21(4), an application fee, duplicate notary public certificate of appointment service charge, certification service charge, copying service charge, 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.
Sec. 53. A person, or the personal representative of a person who is deceased, who performed a notarial act 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.
Sec. 55. The secretary may promulgate rules pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, to implement this act.
Enacting section 1. The following acts and parts of acts are repealed effective April 1, 2004:
(a) Executive Reorganization Order No. 1980-2, MCL 55.103.
(b) Sections 107, 108, 109, 110, 111, 112, 112a, 113, 114, 115, 116, and 117 of 1846 RS 14, MCL 55.107, 55.108, 55.109, 55.110, 55.111, 55.112, 55.112a, 55.113, 55.114, 55.115, 55.116, and 55.117.
(c) 1903 PA 18, MCL 55.221.
(d) 1909 PA 18, MCL 55.251.
(e) Section 2564 of the revised judicature act of 1961, 1961 PA 236, MCL 600.2564.
Enacting section 2. This act takes effect April 1, 2004.
This act is ordered to take immediate effect.
Clerk of the House of Representatives
Secretary of the Senate
Approved
Governor