House File 736 - Introduced HOUSE FILE 736 BY COMMITTEE ON STATE GOVERNMENT (SUCCESSOR TO HSB 167) A BILL FOR An Act providing for notarial acts, including by providing 1 for the use of electronic media, providing penalties, and 2 including effective date provisions. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 2242HV (2) 88 da/jh
H.F. 736 Section 1. Section 9B.1, Code 2019, is amended to read as 1 follows: 2 9B.1 Short title. 3 This chapter may be cited as the “Revised Uniform Law on 4 Notarial Acts” Acts (2018)” . 5 Sec. 2. Section 9B.2, subsection 10, paragraph b, Code 2019, 6 is amended to read as follows: 7 b. “Personal Except as provided in section 9B.14A, “personal 8 appearance” does not include appearances which require video, 9 optical, or technology with similar capabilities. 10 Sec. 3. Section 9B.4, Code 2019, is amended by adding the 11 following new subsection: 12 NEW SUBSECTION . 3. A notarial officer may certify that a 13 tangible copy of an electronic record is an accurate copy of 14 the electronic record as provided in section 9B.14A. 15 Sec. 4. Section 9B.6, Code 2019, is amended to read as 16 follows: 17 9B.6 Personal appearance required. 18 If a notarial act relates to a statement made in or a 19 signature executed on a record, the individual making the 20 statement or executing the signature shall appear personally 21 before the notarial officer. This section is satisfied by a 22 remotely located individual using communication technology to 23 appear before a notary public as provided in section 9B.14A. 24 Sec. 5. NEW SECTION . 9B.14A Notarial act performed for 25 remotely located individual. 26 1. As used in this section unless the context otherwise 27 requires: 28 a. “Communication technology” means an electronic device or 29 process that does all of the following: 30 (1) Allows a notary public and a remotely located individual 31 to communicate with each other simultaneously by sight and 32 sound. 33 (2) When necessary and consistent with other applicable 34 law, facilitates communication with a remotely located 35 -1- LSB 2242HV (2) 88 da/jh 1/ 9
H.F. 736 individual who has a vision, hearing, or speech impairment. 1 b. “Foreign state” means a jurisdiction other than the 2 United States, a state, or a federally recognized Indian tribe. 3 c. “Identity proofing” means a process or service by which 4 a third person provides a notary public with a means to verify 5 the identity of a remotely located individual by a review of 6 personal information from public or private data sources. 7 d. “Outside the United States” means a location outside 8 the geographic boundaries of the United States, Puerto Rico, 9 the United States Virgin Islands, and any territory, insular 10 possession, or other location subject to the jurisdiction of 11 the United States. 12 e. “Remotely located individual” or “individual” means an 13 individual who is not in the physical presence of the notary 14 public who performs a notarial act under subsection 3. 15 2. A remotely located individual may comply with section 16 9B.6 by using communication technology to appear before a 17 notary public. 18 3. A notary public located in this state may perform a 19 notarial act using communication technology for a remotely 20 located individual if all of the following applies: 21 a. The notary public has any of the following: 22 (1) Personal knowledge under section 9B.7, subsection 1, of 23 the identity of the individual. 24 (2) Satisfactory evidence of the identity of the remotely 25 located individual by oath or affirmation from a credible 26 witness appearing before the notary public under section 9B.7, 27 subsection 2, or this section. 28 (3) Obtained satisfactory evidence of the identity of the 29 remotely located individual by using at least two different 30 types of identity proofing. 31 b. The notary public is able reasonably to confirm that a 32 record before the notary public is the same record in which the 33 remotely located individual made a statement or on which the 34 individual executed a signature. 35 -2- LSB 2242HV (2) 88 da/jh 2/ 9
H.F. 736 c. The notary public, or a person acting on behalf of 1 the notary public, creates an audio-visual recording of the 2 performance of the notarial act. 3 d. For a remotely located individual located outside the 4 United States, all of the following applies: 5 (1) The record complies with any of the following: 6 (a) Is to be filed with or relates to a matter before a 7 public official or court, governmental entity, or other entity 8 subject to the jurisdiction of the United States. 9 (b) Involves property located in the territorial 10 jurisdiction of the United States or involves a transaction 11 substantially connected with the United States. 12 (2) The act of making the statement or signing the record 13 is not prohibited by the foreign state in which the remotely 14 located individual is located. 15 4. If a notarial act is performed under this section, the 16 certificate of notarial act required by section 9B.15 and the 17 short-form certificate provided in section 9B.16 must indicate 18 that the notarial act was performed using communication 19 technology. 20 5. A short-form certificate provided in section 9B.16 for a 21 notarial act subject to this section is sufficient if any of 22 the following applies: 23 a. It complies with rules adopted under subsection 8, 24 paragraph “a” . 25 b. It is in the form provided in section 9B.16 and contains 26 a statement substantially as follows: “This notarial act 27 involved the use of communication technology”. 28 6. A notary public, a guardian, conservator, or agent of 29 a notary public, or a personal representative of a deceased 30 notary public shall retain the audio-visual recording created 31 under subsection 3, paragraph “c” , or cause the recording 32 to be retained by a repository designated by or on behalf 33 of the person required to retain the recording. Unless a 34 different period is required by rule adopted under subsection 35 -3- LSB 2242HV (2) 88 da/jh 3/ 9
H.F. 736 8, paragraph “d” , the recording must be retained for a period of 1 at least ten years after the recording is made. 2 7. Before a notary public performs the notary public’s 3 initial notarial act under this section, the notary public 4 must notify the secretary of state that the notary public will 5 be performing notarial acts with respect to remotely located 6 individuals and identify the technologies the notary public 7 intends to use. If the secretary of state has established 8 standards under subsection 8 and section 9B.27 for approval 9 of communication technology or identity proofing, the 10 communication technology and identity proofing must conform to 11 the standards. 12 8. In addition to adopting rules under section 9B.27, the 13 secretary of state may adopt rules under this section regarding 14 performance of a notarial act. The rules may do all of the 15 following: 16 a. Prescribe the means and process, including training 17 requirements, of performing a notarial act involving a remotely 18 located individual using communication technology. 19 b. Establish standards for communication technology and 20 identity proofing. 21 c. Establish requirements or procedures to approve providers 22 of communication technology and the process of identity 23 proofing. 24 d. Establish standards for data security and a period 25 for the retention of an audio-visual recording created under 26 subsection 3, paragraph “c” . 27 9. Before adopting, amending, or repealing a rule governing 28 performance of a notarial act with respect to a remotely 29 located individual, the secretary of state must consider all 30 of the following: 31 a. The most recent standards regarding the performance of 32 a notarial act with respect to a remotely located individual 33 promulgated by national standard-setting organizations and the 34 recommendations of the national association of secretaries of 35 -4- LSB 2242HV (2) 88 da/jh 4/ 9
H.F. 736 state. 1 b. Standards, practices, and customs of other jurisdictions 2 that have laws substantially similar to this section. 3 c. The views of governmental officials and entities and 4 other interested persons. 5 10. By allowing its communication technology or identity 6 proofing to facilitate a notarial act for a remotely located 7 individual or by providing storage of the audio-visual 8 recording created under subsection 3, paragraph “c” , the 9 provider of the communication technology, identity proofing, 10 or storage appoints the secretary of state as the provider’s 11 agent for service of process in any civil action in this state 12 related to the notarial act. 13 11. The commission of a notary public performing a notarial 14 act under this section is conditional upon the notary public 15 complying with the requirements in section 9B.21. 16 12. A document purporting to convey or encumber real 17 property that has been recorded by the county recorder for the 18 jurisdiction in which the real property is located, although 19 the document may not have been certified according to this 20 section, shall give the same notice to third persons and be 21 effective from the time of recording as if the document had 22 been certified according to this section. 23 13. In any cause of action brought under this section, venue 24 shall lie in the county where the notary public is performing 25 the notarial act. 26 14. In any cause of action brought under this section, Iowa 27 law shall be the choice of law. Any condition, stipulation, or 28 provision in a document requiring the application of the law of 29 another state in lieu of this state is void. 30 Sec. 6. NEW SECTION . 9B.14B Use of information. 31 1. As used in this section, unless the context otherwise 32 requires: 33 a. (1) “Personally identifiable information” means 34 information about or pertaining to an individual in a record 35 -5- LSB 2242HV (2) 88 da/jh 5/ 9
H.F. 736 which identifies the individual, and includes information that 1 can be used to distinguish or trace an individual’s identity, 2 either alone or when combined with other information. 3 (2) “Personally identifiable information” includes but is 4 not limited to a person’s photograph, social security number, 5 driver’s license number, name, address, and telephone number. 6 b. “Remote facilitator” means a person who participates in 7 performing a notarial act under section 9B.14A, by doing any 8 of the following: 9 (1) Providing communication technology used by a public 10 notary or remotely located individual. 11 (2) Creating, transmitting, or retaining audio-visual 12 recordings on behalf of a notary public. 13 2. A notary public or a remote facilitator shall not sell, 14 offer for sale, use, or transfer to another person personally 15 identifiable information collected in the course of performing 16 a notarial act for any purpose other than as follows: 17 a. As required to perform the notarial act. 18 b. As necessary to effect, administer, enforce, service, or 19 process the transaction for which the personally identifiable 20 information was provided. 21 3. Subsection 2 does not apply to the transfer of personally 22 identifiable information to another person in any of the 23 following circumstances: 24 a. Upon written consent of the person for the use or release 25 of that person’s personally identifiable information. 26 b. In response to a court order, subpoena, or other legal 27 process compelling disclosure. 28 c. As part of a change in the form of a business entity’s 29 organization or a change in the control of a business 30 entity, including as a result of an acquisition, merger, or 31 consolidation. However, any reorganized or successor business 32 entity shall comply with the same requirements as provided in 33 subsection 2. 34 4. A person who violates this section is guilty of a simple 35 -6- LSB 2242HV (2) 88 da/jh 6/ 9
H.F. 736 misdemeanor. 1 Sec. 7. Section 9B.20, Code 2019, is amended by adding the 2 following new subsection: 3 NEW SUBSECTION . 3. A county recorder may accept for 4 recording a tangible copy of an electronic record containing 5 a notarial certificate as satisfying any requirement that a 6 record accepted for recording be an original, if the notarial 7 officer executing the notarial certificate certifies that the 8 tangible copy is an accurate copy of the electronic record. 9 Sec. 8. Section 9B.21, Code 2019, is amended by adding the 10 following new subsection: 11 NEW SUBSECTION . 3A. The commission of a notary public, 12 who performs a notarial act using communication technology 13 for a remotely located individual under section 9B.14A, is 14 conditional upon the notary public executing an agreement with 15 such individual that at least stipulates any claim or cause of 16 action arising out of the notarial act must be brought by the 17 individual in a district court in this state as provided in 18 section 9B.14A rather than a state court in another state. 19 Sec. 9. EFFECTIVE DATE. This Act takes effect July 1, 2020. 20 EXPLANATION 21 The inclusion of this explanation does not constitute agreement with 22 the explanation’s substance by the members of the general assembly. 23 GENERAL. This bill amends Code chapter 9B, the “Revised 24 Uniform Law on Notarial Acts” (RULONA), enacted by the 25 general assembly in 2012 (2012 Acts, chapter 1050), which is 26 based on a uniform Act proposed by the national conference 27 of commissioners on uniform state laws (commissioners) in 28 2010. The Code chapter governs a notary public (an individual 29 commissioned to perform a notarial act by the secretary of 30 state) or other notarial officer (a statutory authorized 31 individual such as a judge) who performs a specific official 32 act such as attesting to some fact which often involves an 33 individual’s statement or signing of a record presented by an 34 individual (Code section 9B.2). Such an individual must appear 35 -7- LSB 2242HV (2) 88 da/jh 7/ 9
H.F. 736 personally before the notarial officer (Code section 9B.6). 1 A notarial act must be evidence by some form of certificate 2 executed contemporaneously with the performance of the notarial 3 act (Code sections 9B.15 and 9B.16). The record may either be 4 tangible or electronic. A notary public who elects to perform 5 a notarial act involving an electronic record must notify the 6 secretary of state regarding the tamper-proof technology that 7 the notary public will use (Code section 9B.20). 8 UNIFORM PROVISIONS. The bill includes amendments proposed 9 to the uniform Act by the commissioners in 2018 and referred 10 to as “RULONA (2018)”, by allowing a notary public to perform 11 a notarial act remotely by utilizing audio-visual technology. 12 Under the bill, an individual may personally appear before 13 a notary public by means of communication technology. 14 Communication technology is a process that allows a notary 15 public and a remotely located individual (individual) to 16 communicate with each other simultaneously. The notary public 17 must have some reliable evidence of the true identity of the 18 individual and confirm that the record before the notary public 19 is the same record of the individual’s statement or the same 20 document that is being signed. The certificate must indicate 21 that the remote notarial act is performed in accordance with 22 the provisions of the new Code section. The bill also requires 23 that an audio-visual recording of the performance be created 24 and stored for at least 10 years. The secretary of state is 25 authorized to adopt rules required to administer the new Code 26 section. The bill amends Code section 9B.20, by providing that 27 a county recorder may accept a tangible copy of an electronic 28 record, if a notarial officer certifies that the copy is 29 accurate. 30 NONUNIFORM PROVISIONS —— NOTICE TO CREDITORS. The bill 31 provides that a document purporting to convey or encumber 32 real property that has been recorded provides notice to third 33 persons regardless of whether it has been properly certified. 34 The bill also provides that a county recorder may accept a 35 -8- LSB 2242HV (2) 88 da/jh 8/ 9
H.F. 736 tangible copy of the electronic record, if a notarial officer 1 certifies that the copy is accurate. In a cause of action 2 brought under the new Code section, venue lies in the county 3 where the notary public is performing the notarial act, and 4 Iowa law is the choice of law. 5 NONUNIFORM PROVISIONS —— RESTRICTION ON USE OF PERSONALLY 6 IDENTIFIABLE INFORMATION. The bill creates nonuniform Code 7 section 9B.14B that restricts a public notary or person 8 involved in performing a notarial act electronically from 9 using personally identifiable information that is contained 10 in a created record, subject to specified exceptions (e.g., 11 consent of a party). A person who violates this provision of 12 the bill commits a simple misdemeanor. A simple misdemeanor is 13 punishable by confinement for no more than 30 days or a fine of 14 at least $65 but not more than $625 or by both. 15 EFFECTIVE DATE. The bill takes effect July 1, 2020. 16 -9- LSB 2242HV (2) 88 da/jh 9/ 9