HB4958 94TH GENERAL ASSEMBLY

LRB094 16639 JAM 51907 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB4958

Introduced 1/19/2006, by Rep. Kevin Joyce

SYNOPSIS AS INTRODUCED:

5 ILCS 312/1-104	from Ch. 102, par. 201-104
5 ILCS 312/2-101	from Ch. 102, par. 202-101
5 ILCS 312/2-102	from Ch. 102, par. 202-102
5 ILCS 312/2-105	from Ch. 102, par. 202-105
5 ILCS 312/3-101	from Ch. 102, par. 203-101
5 ILCS 312/3-104	from Ch. 102, par. 203-104
5 ILCS 312/3-110 new
5 ILCS 312/7-105	from Ch. 102, par. 207-105
5 ILCS 312/7-106	from Ch. 102, par. 207-106
5 ILCS 312/7-107	from Ch. 102, par. 207-107
765 ILCS 5/20	from Ch. 30, par. 19

Amends the Illinois Notary Public Act. Authorizes the Secretary of State to appoint and commission real estate notaries public to perform notarial acts involving real property documents. Requires that persons seeking appointment as real estate notaries public submit to criminal background checks. Requires that a notary public keep a journal as to notarization of documents concerning real property. Specifies the information to be entered in the journal in order to identify the witnesses who or documents that affirmed the identity of persons whose acknowledgements were notarized. Specifies the manner in which the journal must be kept and the conditions under which journal entries must be disclosed. Makes violations by a notary public punishable by fines imposed by the Secretary of State and revocation of the notary's commission. Makes a notary public's official misconduct with respect to real property documents a Class 2 felony. Makes impersonation of a notary public a Class 1 felony (now, a Class A misdemeanor). Makes unlawful possession of a notary's official seal a Class 2 felony (now, a misdemeanor with a fine not to exceed $1,000). Amends the Conveyances Act. Provides that rights and interests shall (now, may) be acknowledged or proved before specified courts or officers. Provides that when the acknowledgement or proving is outside Illinois but within the United States and its territories, the notary public must be in substantial compliance with the Illinois Notary Public Act.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Notary Public Act is amended by changing Sections 1-104, 2-101, 2-102, 2-105, 3-101, 3-104, 7-105, 7-106, and 7-107 and by adding Section 3-110 as follows:

(5 ILCS 312/1-104) (from Ch. 102, par. 201-104)

Sec. 1-104. Notary Public, Real Estate Notary Public, and Notarization Defined.

(a) The terms "notary public" and "notary" are used interchangeably to mean any individual appointed and commissioned to perform notarial acts, except those pertaining to real property documents as provided for in Section 3-110 of this Act..

(b) The term "real estate notary public" shall mean any individual appointed and commissioned to perform any and all notarial acts pertaining to real property documents as provided for in Section 3-110 of this Act.

(c) Unless specifically enumerated, the terms "notary public" and "notary" shall include "real estate notary public".

(d) (b) "Notarization" means the performance of any a notarial act.

(e) (c) "Accredited immigration representative" means a not-for-profit organization recognized by the Board of Immigration Appeals under 8 C.F.R. 292.2(a) and employees of those organizations accredited under 8 C.F.R. 292.2(d).

(Source: P.A. 93-1001, eff. 8-23-04.)

(5 ILCS 312/2-101) (from Ch. 102, par. 202-101)

Sec. 2-101. Appointment. The Secretary of State may appoint and commission as notaries public for a 4-year term, or as real estate notaries public for a 2-year term, as many persons resident in a county in this State as he deems necessary. The Secretary of State may appoint and commission as notaries public for a one-year term as many persons who are residents of a state bordering Illinois whose place of work or business is within a county in this State as the Secretary deems necessary, but only if the laws of that state authorize residents of Illinois to be appointed and commissioned as notaries public in that state.

(Source: P.A. 91-818, eff. 6-13-00.)

(5 ILCS 312/2-102) (from Ch. 102, par. 202-102)

Sec. 2-102. Application. Every applicant for appointment and commission as a notary shall complete an application form furnished by the Secretary of State to be filed with the Secretary of State, stating:

(a) the applicant's official name, which contains his or her last name and at least the initial of the first name;

(b) the county in which the applicant resides or, if the applicant is a resident of a state bordering Illinois, the county in Illinois in which that person's principal place of work or principal place of business is located;

(c) the applicant's residence address and business address, if any, or any address at which an applicant will use a notary public commission to receive fees;

(d) that the applicant has resided in the State of Illinois for 30 days preceding the application or that the applicant who is a resident of a state bordering Illinois has worked or maintained a business in Illinois for 30 days preceding the application;

(e) that the applicant is a citizen of the United States or an alien lawfully admitted for permanent residence in the United States;

(f) that the applicant is at least 18 years of age;

(g) that the applicant is able to read and write the English language;

(h) that the applicant has never been the holder of a notary public appointment that was revoked or suspended during the past 10 years;

(i) that the applicant has not been convicted of a felony; and

(j) any other information the Secretary of State deems necessary.

A real estate notary public applicant must submit to a criminal background investigation in accordance with rules adopted by the Secretary of State in cooperation with the Department of State Police.

(Source: P.A. 93-1001, eff. 8-23-04.)

(5 ILCS 312/2-105) (from Ch. 102, par. 202-105)

Sec. 2-105. Bond.

(a) Every application for appointment and commission as a notary public shall be accompanied by an executed bond commencing on the date of the appointment with a term of 4 years, in the sum of $5,000, with, as surety thereon, a company qualified to write surety bonds in this State. The bond shall be conditioned upon the faithful performance of all notarial acts in accordance with this Act. The Secretary of State may prescribe an official bond form.

(b) Every application for appointment and commission as a real estate notary public shall be accompanied by an executed bond commencing on the date of the appointment with a term of 2 years, in the sum of $25,000, with, as surety thereon, a company qualified to write surety bonds of all notarial acts in accordance with this Act. For real estate notaries employed by a government entity who are authorized solely to notarize real estate documents for their government employer, the amount of the executed bond shall be $5,000.

(c) The Secretary of State may prescribe an official bond form.

(Source: P.A. 84-322.)

(5 ILCS 312/3-101) (from Ch. 102, par. 203-101)

Sec. 3-101. Official Seal. Each notary public shall, upon receiving the commission from the county clerk, obtain an official rubber stamp seal with which the notary shall authenticate his official acts. The rubber stamp seal shall contain the following information:

(a) the words "Official Seal";

(b) the notary's official name;

(c) the words "Notary Public", or "Real Estate Notary Public" for notaries commissioned to notarize real property documents as provided for in Section 3-110 of this Act, "State of Illinois", and "My commission expires____________(commission expiration date)"; and

(d) a serrated or milled edge border in a rectangular form not more than one inch in height by two and one-half inches in length surrounding the information.

(Source: P.A. 84-322.)

(5 ILCS 312/3-104) (from Ch. 102, par. 203-104)

Sec. 3-104. Maximum Fee.

(a) Except as provided in subsections subsection (b) and (e) of this Section, the maximum fee in this State is $1.00 for any notarial act performed.

(b) Fees for a notary public, agency, or any other person who is not an attorney or an accredited representative filling out immigration forms shall be limited to the following:

(1) $10 per form completion;

(2) $10 per page for the translation of a non-English language into English where such translation is required for immigration forms;

(3) $1 for notarizing;

(4) $3 to execute any procedures necessary to obtain a document required to complete immigration forms; and

(5) A maximum of $75 for one complete application.

Fees authorized under this subsection shall not include application fees required to be submitted with immigration applications.

Any person who violates the provisions of this subsection shall be guilty of a Class A misdemeanor for a first offense and a Class 3 felony for a second or subsequent offense committed within 5 years of a previous conviction for the same offense.

(c) Upon his own information or upon complaint of any person, the Attorney General or any State's Attorney, or their designee, may maintain an action for injunctive relief in the court against any notary public or any other person who violates the provisions of subsection (b) of this Section. These remedies are in addition to, and not in substitution for, other available remedies.

If the Attorney General or any State's Attorney fails to bring an action as provided pursuant to this subsection within 90 days of receipt of a complaint, any person may file a civil action to enforce the provisions of this subsection and maintain an action for injunctive relief.

(d) All notaries public must provide receipts and keep records for fees accepted for services provided. Failure to provide receipts and keep records that can be presented as evidence of no wrongdoing shall be construed as a presumptive admission of allegations raised in complaints against the notary for violations related to accepting prohibited fees.

(e) Fees for a real estate notary public for notarizing real property documents as provided for in Section 3-110 of this Act shall be limited to $20 for the first notarial act and $1 for each additional notarial act that is part of the same real estate transaction.

(Source: P.A. 93-1001, eff. 8-23-04.)

(5 ILCS 312/3-110 new)

Sec. 3-110. Real property documents.

(a) As to the notarization of documents affecting real property, including but not limited to deeds, liens, or mortgages, a notary public shall keep one active sequential journal at a time of all official acts performed as a notary public. The journal shall be kept in a locked and secured area, under the direct and exclusive control of the notary. Assignments and releases of interest in property are not subject to the provisions of this Section.

(b) The journal shall be in addition to and apart from any copies of notarized documents that may be in the possession of the notary public and shall include the following:

(1) Date, time, and type of each official act.

(2) Character of the instrument acknowledged or proved before the notary.

(3) The signature of each person whose signature is being notarized.

(4) A statement as to whether the identity of a person making an acknowledgment was based on personal knowledge or satisfactory evidence. If identity was established by satisfactory evidence pursuant to Section 6-102 (5 ILCS 312/6-102), then the journal shall contain the signature of the credible witness swearing to or affirming the identity of the individual or the type of identifying document, the governmental agency issuing the document, the serial or identifying number of the document, and the date of issue or expiration of the document.

(5) If an identifying document is used in order to verify the identity of the person whose signature is being notarized, copies of the front and back of the identifying document attached to the corresponding journal entry page.

(6) If the identity of the person making the acknowledgment was established by the oaths or affirmations of 2 credible witnesses whose identities are proven upon the presentation of satisfactory evidence, the type of identifying documents, the identifying numbers of the documents, and the dates of issuance or expiration of the documents presented by the witnesses to establish their identity.

(7) The fee charged for the notarial service.

(8) The right thumbprint of the party signing the document. If the right thumbprint is not available, then the notary shall have the party use his or her left thumb, or any available finger, and shall so indicate in the journal. If the party signing the document is physically unable to provide a thumbprint or fingerprint, the notary shall so indicate in the journal and shall also provide an explanation of that physical condition. This paragraph shall not apply to a trustee's deed resulting from a decree of foreclosure or a non-judicial foreclosure pursuant to the Code of Civil Procedure beginning at Section 15-1101 (735 ILCS 5/15-1101 et seq.) or to a deed of reconveyance.

(c) If the journal of official acts performed by a notary public is stolen, lost, misplaced, destroyed, damaged, or otherwise rendered unusable as a record of notarial acts and information, the notary public shall notify the Secretary of State by certified or registered mail within 5 business days of discovering the journal is stolen, lost, misplaced, destroyed, damaged, or otherwise rendered unusable as a record of notarial acts and information. The notification shall include the period of the journal entries, the notary public commission number, the expiration date of the commission, and, when applicable, a photocopy of any police report that specifies the theft of the sequential journal of official acts.

(d) Upon written request of any member of the public, which request shall include the name of the parties, the type of document, and the month and year in which notarized, the notary shall supply a photostatic copy of the line item representing the requested transaction at a cost of not more than 30 cents per page.

(e) The journal of notarial acts of a notary public is the exclusive property of that notary public and shall not be surrendered to an employer upon termination of employment, whether or not the employer paid for the journal, or at any other time. The notary public shall not surrender the journal to any other person except a peace officer, as defined in Section 2-13 of the Criminal Code of 1961 (720 ILCS 5/2-13), acting in his or her official capacity and within his or her authority, in response to a criminal search warrant signed by a judge or to a grand jury subpoena or subpoena duces tecum and served upon the notary public by the peace officer. The notary public shall obtain a receipt for the journal and shall notify the Secretary of State by certified mail within 10 days that the journal was relinquished to a peace officer. The notification shall include the period of the journal entries, the commission number of the notary public, the expiration date of the commission, and a photocopy of the receipt. The notary public shall obtain a new sequential journal. If the journal relinquished to a peace officer is returned to the notary public and a new journal has been obtained, the notary public shall make no new entries in the returned journal. A notary public who is an employee shall permit inspection and copying of journal transactions by a duly designated auditor or agent of the notary public's employer, provided that the inspection and copying are done in the presence of the notary public and the transactions are directly associated with the business purposes of the employer. The notary public, upon the request of the employer, shall regularly provide copies of all transactions that are directly associated with the business purposes of the employer but shall not be required to provide copies of any transaction that is unrelated to the employer's business. Confidentiality and safekeeping of any copies of the journal provided to the employer shall be the responsibility of that employer.

(f) The notary public shall provide the journal for examination and copying in the presence of the notary public upon receipt of a subpoena duces tecum or a court order and shall certify those copies if requested.

(g) Failure to secure the journal or make reports as required by this Section shall result in the following measures being taken by the Secretary of State:

(1) For the first violation of any provision concerning the securing of the journal or notification as set forth in this Section, the notary shall be fined not less than $500 and not more than $1,500 by the Secretary of State.

(2) For any subsequent violation of any provision concerning the securing of the journal or notification as set forth in this Section, the notary shall be fined not less than $1,500 and not more than $5,000 by the Secretary of State and the notary's commission shall be permanently revoked.

(5 ILCS 312/7-105) (from Ch. 102, par. 207-105)

Sec. 7-105. Official Misconduct. (a) A notary public who knowingly and willfully commits any official misconduct is guilty of a Class A misdemeanor; provided that a notary public who knowingly and willfully commits any official misconduct in connection with a notarial act involving a document of conveyance or encumbrance affecting real estate is guilty of a Class 2 felony.

(b) A notary public who recklessly or negligently commits any official misconduct is guilty of a Class A B misdemeanor.

(Source: P.A. 84-322.)

(5 ILCS 312/7-106) (from Ch. 102, par. 207-106)

Sec. 7-106. Willful Impersonation. Any person who acts as, or otherwise willfully impersonates, a notary public while not lawfully appointed and commissioned to perform notarial acts is guilty of a Class 1 felony A misdemeanor.

(Source: P.A. 84-322.)

(5 ILCS 312/7-107) (from Ch. 102, par. 207-107)

Sec. 7-107. Wrongful Possession. Any person who unlawfully possesses a notary's official seal is guilty of a Class 2 felony misdemeanor and punishable upon conviction by a fine not exceeding $1,000.

(Source: P.A. 84-322.)

Section 10. The Conveyances Act is amended by changing Section 20 as follows:

(765 ILCS 5/20) (from Ch. 30, par. 19)

Sec. 20. Deeds, mortgages, conveyances, releases, powers of attorney or other writings of or relating to the sale, conveyance or other disposition of real estate or any interest therein whereby the rights of any person may be affected, shall may be acknowledged or proven before some one of the following courts or officers, namely:

1. When acknowledged or proven within this State, before a notary public, United States commissioner, county clerk, or any court or any judge, clerk or deputy clerk of such court. When taken before a notary public or United States commissioner, the same shall be attested by his official seal; when taken before a court or the clerk thereof, or a deputy clerk thereof, the same shall be attested by the seal of such court.

2. When acknowledged or proved outside of this State and within the United States or any of its territories or dependencies or the District of Columbia, before a justice of the peace, notary public in substantial compliance with the Illinois Notary Public Act, master in chancery, United States commissioner, commissioner to take acknowledgments of deeds, mayor of city, clerk of a county, or before any judge, justice, clerk or deputy clerk of the supreme, circuit or district court of the United States, or before any judge, justice, clerk or deputy clerk, prothonotary, surrogate, or registrar of the supreme, circuit, superior, district, county, common pleas, probate, orphan's or surrogate's court of any of the states, territories or dependencies of the United States. In any dependency of the United States such acknowledgment or proof may also be taken or made before any commissioned officer in the military service of the United States. When such acknowledgment or proof is made before a notary public, United States commissioner or commissioner of deeds, it shall be certified under his seal of office. If taken before a mayor of a city it shall be certified under the seal of the city; if before a clerk, deputy clerk, prothonotary, registrar or surrogate, then under the seal of his court; if before a justice of the peace or a master in chancery there shall be added a certificate of the proper clerk under the seal of his office setting forth that the person before whom such proof or acknowledgment was made was a justice of the peace or master in chancery at the time of taking such acknowledgment or proof. As acknowledgment or proof of execution of any instrument above stated, may be made in conformity with the laws of the State, territory, dependency or district where it is made. If any clerk of any court of record within such state, territory, dependency or district shall, under his signature and the seal of such court, certify that such acknowledgment or proof was made in conformity with the laws of such state, territory, dependency or district, or it shall so appear by the laws of such state, territory, dependency or district such instrument or a duly proved or certified copy of the record of such deed, mortgage or other instrument relating to real estate heretofore or hereafter made and recorded in the proper county may be admitted in evidence as in other cases involving the admission of evidence of certified copies.

3. When acknowledged or proven outside of the United States before any court of any republic, dominion, state, kingdom, empire, colony, territory, or dependency having a seal, or before any judge, justice or clerk thereof or before any mayor or chief officer of any city or town having a seal, or before a notary public or commissioner of deeds, or any ambassador, minister or secretary of legation or consul of the United States or vice consul, deputy consul, commercial agent or consular agent of the United States in any foreign republic, dominion, state, kingdom, empire, colony, territory or dependency attested by his official seal or before any officer authorized by the laws of the place where such acknowledgment or proof is made to take acknowledgments of conveyances of real estate or to administer oaths in proof of the execution of conveyances of real estate. Such acknowledgments are to be attested by the official seal, if any, of such court or officer, and in case such acknowledgment or proof is taken or made before a court or officer having no official seal, a certificate shall be added by an ambassador, minister, secretary of legation, consul, vice consul, deputy consul, commercial agent or consular agent of the United States residing in such republic, dominion, state, kingdom, empire, colony, territory, or dependency under his official seal, showing that such court or officer was duly elected, appointed or created and acting at the time such acknowledgment or proof was made.

4. Any person serving in or with the armed forces of the United States, within or outside of the United States, and the spouse or former spouse of any such person, may acknowledge the instruments wherever located before any commissioned officer in active service of the armed forces of the United States with the rank of Second Lieutenant or higher in the Army, Air Force or Marine Corps, or Ensign or higher in the Navy or United States Coast Guard. The instrument shall not be rendered invalid by the failure to state therein the place of execution or acknowledgment. No authentication of the officer's certificate of acknowledgment shall be required and such certificate need not be attested by any seal but the officer taking the acknowledgment shall indorse thereon or attach thereto a certificate substantially in the following form:

On (insert date), the undersigned officer, personally appeared before me, known to me (or satisfactorily proven) to be serving in or with the armed forces of the United States (and/or the spouse or former spouse of a person so serving) and to be the person whose name is subscribed to the instrument and acknowledged that .... he .... executed the same as .... free and voluntary act for the purposes therein contained, and the undersigned further certifies that he is at the date of this certificate a commissioned officer of the rank stated below and is in the active service of the armed forces of the United States.

............................... Signature of Officer ............................... Rank of Officer and Command to which attached.

5. All deeds or other instruments or copies of the record thereof duly certified or proven which have been acknowledged or proven prior to August 30, 1963, before either of the courts or officers mentioned in this Act and in the manner herein provided, shall be deemed to be good and effectual in law and the same may be introduced in evidence without further proof of their execution, with the same effect as if this amendatory Act of 1963 had been in force at the date of such acknowledgment or proof.

(Source: P.A. 91-357, eff. 7-29-99.)