In the middle of the 2018 Regular Legislative Session, many notaries are focused on two bills that have been pre-filed. In particular, House Bill 572 and Senate Bill 358, both mirrors of each other, and both concerning the introduction of electronic notary procedures in Louisiana.
But there is another danger lurking in the shadows...
Representative Raymond E. Garofalo is the Chairman of the Committee on Civil Law and Procedure. He has written a bill that could be just as damaging as the electronic notary bills. The problem is that Garofalo has not pre-filed this bill. It is laying in wait like a sleeping dragon.
Since the, "sleeping dragon," has not been pre-filed, it will not have a chance to be studied. Additionally, this bill is rumored to be sixty-seven pages long. If introduced during session, without being pre-filed, nobody will have the time to read it, and therefore they will vote blindly.
Garofalo's bill creates a, "second-class," notary public and actually calls this office, "Notary Public." Current notaries like me, who have studied extensively, passed a rigorous exam, and worked their butts off to become notaries public will now be referred to as, "Civil Law Notaries Public." In order to become one of these second class notaries, all you will have to do is pay a $35 commission fee, and check, "yes" on the question that asks if you have a high school diploma. You will not have to undergo any training at all and you won't have to take any kind of exam.
Once you pay your $35 and sign your form, you will be rewarded with the same kind of stamp and seal that I have, as well as a notary ID number that looks the same as mine (different numbers, but same number issuing system).
The difference is that you won't be able to draft documents. I can draft documents for you to donate your house, give someone power of attorney, sell your boat, etc. I can even draft your last will and testament. But you won't be able to.
The problem with this, "sleeping dragon," is, "Who's going to know the difference?"
The Problems with this Bill:
The, "sub-notary," would be able to witness your signature, but would only be able to charge a maximum of $10 every time they sign. First of all, if nobody's looking, what's going to stop them from charging more? There are plenty of laws in place right now regarding notaries, but the process to report a notary for doing something wrong is so full of red tape, that notaries rarely get in trouble for being unethical or breaking the law.
With that being said, let's take it one step further... if nobody's looking, what's going to stop them from drafting documents without the proper training? What if somebody took the notary class and notary exam four times, got tired of studying and taking the exam over and over again, paid their $35 to become a, "sub-notary," and then started drafting documents because they think they know how to do it? The general public wouldn't be able to tell the difference!
I have been contracted to invalidate many, many documents for various court cases, drafted by notaries and attorneys. If Garofalo's legislation passed, I would never stop invalidating documents drafted by those same people and by second-class notaries pretending they can draft because nobody's going to know the difference..
Also, back to the money issue, if a, "sub-notary," was created, and if they were only allowed to charge $10, the vast majority of the general public would go to, "one of the cheap notaries," instead of using us other notaries for their documents. The love of my life is a notary, too. He owns a UPS Store and charges $15 for each signature. If this legislation was passed, he would either have to cut prices or lose the majority of his business to someone cheaper.
There would also be a massive increase in the numbers of notaries public. In 2005, the State of Louisiana began issuing notary commissions only after a candidate took and passed a very rigorous statewide exam, comparable to the bar exam. In Louisiana, a notary has almost as much authority as an attorney. We can't give legal advice, and we can't defend you in court, but we can draft and authenticate all kinds of documents that affect peoples lives, and have legal effect. So, the exam had to be hard. This was done for several reasons, one of which was to regulate the numbers of notaries public in Louisiana, and the effort was successful. Garofalo's bill would reverse the success held by the inception of the statewide exam in 2005. He wants to undo what was done and what worked.
Representative Garofalo... if it ain't broke, don't fix it!
Why is Garofalo doing this? What is his motivation? For the last several years, Representative Garofalo has been attempting to pass bills similar to this one. He has pre-filed them and they have always failed.
He has hidden this bill and not pre-filed it, written it to 67 pages long, and has waited until the last minute to file it, so that nobody has a chance to read it and they just vote for it instead of against it.
Garofalo claims that it is extremely difficult to find a notary public. Actually, it's not. There are 52,760 active notaries public in Louisiana currently. And in the very small area of zip code 70043 (Rep. Garofalo's office zip code), there are 98 active notaries. I firmly believe it's all about the money. He doesn't want to pay the prices of notaries who worked their butts off and passed a pseudo-bar exam to get where they are. He's wanting to limit the amount he pays to $10, instead of $15. Mr. Garofalo, who probably works full time and has great health insurance and a nice car wants to save himself $5.
Forget about the little guy. They didn't need that $15 to buy a gallon of milk, a loaf of bread, a bag of red beans and an onion. The independent notaries, the retirees who supplement their income with notary work, and the single moms who use notary income to help provide for their kids will all be extremely negatively impacted if this legislation passes.
Really, it's all about the money.
I urge you, keep a watchful eye on www.legis.la.gov. Representative Garofalo's deadline to file this bill is Tuesday. If he does indeed file it, we will need as many notaries as possible to storm the state capitol, attend the committee meeting where it is being heard, and fight this legislation!!
So, here I sit with a pretty awful sinus infection, cuddled up with my puppy in my recliner in the living room, with laptop on my lap and my apple cider vinegar next to me. Despite the fact that I feel awful, I can't stop thinking. There is a piece of proposed legislation that is being considered in the Louisiana House of Representatives and the Louisiana Senate right now. It could be voted on as early as Monday. And it's burning a hole in the notary part of my brain right now. So, being that I am a Louisiana notary, I am a successful notary exam prep educator, and... I am BatMandy, I have to voice my opinion about this bill.
Here's what is going on, and the problems I see with this bill.
House Bill No. 572 By Representative Magee Senate Bill No 358 By Senator Luneau
Creation of the Electronic Notary
Both proposed bills aim to amend La. CC Art. 1833, and Title 35 of the Louisiana Revised Statutes, to provide for the implementation of electronic notary services.
First, these bills direct the Secretary of State to develop, adopt, and maintain standards and rules for the facilitation of electronic notarial acts. Once these tasks are accomplished, notaries can apply to be appointed and commissioned as electronic notaries public.
The qualifications to become an electronic notary are the same as the qualifications for the office of, “pen and paper notary,” although this proposed legislation allows the Secretary of State to impose additional qualification requirements for the electronic notary.
The Problem with the Creation of the Electronic Notary
This same type of bill is being pushed in all 50 states. So far, only FIVE of them have actually adopted electronic notary legislation. According to the Notary Law Institute, the other forty-five states are completely opposed to this type of legislation, due to problems to be further discussed below. Who is pushing it? Signing companies, mortgage companies, and banks. They are trying to institute "Robo-signings." This would cut into the average full-time notary in Louisiana, in that signing companies, mortgage companies and banks would set this up in their institutions, and would not hire Notary Signing Agents anymore for their transactions. Notary signings encompass about 60% of my notary income. Therefore, 60% of my income would be lost to some faceless notary behind a computer, authenticating these acts remotely.
Additionally, people just needing a general signature witness (about 30% of my notary income) would be enticed to just go to the bank and have their signature authenticated, probably for less than I would charge to drive to meet them to witness their signature.
Performance of Duties
Under this proposed legislation, the electronic notary may draft and execute all types of notarial acts, including authentic acts. The electronic notary will be required to keep meticulous records, including identity verification, along with audio and video files that memorialize the signing. The bills require that these records be kept, secured, and backed up for a period of five years after the date of the transaction.
Not only will the files need to be secured, but all equipment involved in the electronic notary’s business will need to be secured as well.
Problem with the Performance of Duties
Really? Electronic notaries would execute authentic acts? Under CC Art. 1833, the procedure for an authentic act is to have the party/ies sign, in the presence of two witnesses, and a notary, and then those witnesses sign in the presence of the party/ies, and then the notary signs in front of all those people. What is the purpose? To have the act memorialized in a manner that is irrefutable, prima facie evidence, and that is self-proving.
In one case in particular, the witness was standing in the doorway of an office, watching the parties sign. The judge asked if she had seen the parties sign. She confirmed that she had seen them sign. The judge then asked how she knew they signed. The witness replied, "because I saw their hands moving on the paper." The judge went further, asking if she could really see what they were writing from ten feet away, and how she knew they didn't sign, "Mickey Mouse," or some other name. The witness replied that she could not see perfectly from ten feet away, and could not confirm that the parties did not sign someone else's name to the act.
If the parties, witnesses, and notary are all situated in different place, executing the act over the internet, how is everyone to attest to exactly what happened?
Electronic Notarial Act Procedures
The authentication of notarial acts via electronic means is stipulated to cross state lines. Therefore, neither the party nor the notary need to be physically located in Louisiana at the time of the signing. The notary will be required to verify the identity of the signer.
If the act is being notarized over the internet, audio and video recordings must be made, using equipment that is approved under these proposed laws. Additionally, the equipment and connections must be secured.
Problems with Electronic Notarial Act Procedures
Again, as stated above, if the camera is not positioned perfectly, how is a witness or notary supposed to validly attest to the signing and the circumstances surrounding same?
Furthermore, the equipment required to perform this type of authentication would be costly and expensive. Saving every single .mpeg file for 5 years will require a lot of storage. The security measures that would need to be taken would also be extremely expensive. The secured internet connection, the video cameras, the microphones, etc., would all be so costly that the only people able to afford this equipment would be banks or possibly public tag agencies. I know for a fact, that as an independent notary, I certainly would not be able to afford this equipment.
Termination of Commission
When the commission of an electronic notary ends, all equipment and software allowing the notary to affix their seal must be completely destroyed.
Problem with Termination of Commission
Simply put, what goes on the internet, stays on the internet. Is there really, truly any certain way to destroy your electronic seal?
Regardless of whether the parties are appearing personally and using pen and paper for the medium, whether the parties and notary are situated in front of a computer, or whether the authentication is completed over the internet, any writing executed by electronic means before an electronic notary public will be considered an authentic act under this proposed law.
The Problem with Authentic Acts
This portion of the bill, amending La. CC Art. 1833, totally undermines the very definition of the term, "Authentic Act."
But the real issue, and the primary reason forty-five other states have shot this type of legislation down previously, is that it opens up the notary, the parties, and the witnesses to prosecution due to fraud. Internet fraud, particularly identity theft, is a major issue in this day and age. Seriously, who hasn't received an email from some long-lost cousin in Nigeria asking them to wire money now so they can fly their grandfather to America to get extremely necessary medical treatment? It is becoming easier and easier to commit fraud over the internet. My identity has been stolen multiple times - as secure as I think my internet connection is, every once in a while, I get hacked. When it happens, I take more and more measures to protect myself, and then I'm good for a couple or three years. But with it being so easy to hack into someone's connection, and with it being so easy to commit internet fraud crimes, this legislation would open the electronic notary up to lawsuits surrounding the validation of identification and the circumstances surrounding the signing. I don't know about you, but if this passes, I don't think my $100,000 E&O policy will be enough to cover me for this kind of lawsuit.
PLEASE PLEASE PLEASE call your senators and representatives, as well as the senators and representatives who wrote this bill on Friday, March 23, 2018. This is possibly the last day we have to voice our opinions!!! This bill could be extremely detrimental to the Civil Law Notary Public, who is held to a much higher standard than the common law notaries in other states. We in Louisiana are unique and special! Help us keep it that way!
In Louisiana, we have a unique process for transferring ownership of property when someone has passed away. In other states, the process is called, "Probate." In our Civil Law society, we refer to this as, "Succession."
Anytime someone passes away in Louisiana with their name on something, like a car title, or a bank account, the succession paperwork must be done before the heirs can legally say they own that property. Most of the time, you would consult an attorney for this. But in some cases, a notary public can draft and execute an, "Affidavit of Small Succession," for you, saving you thousands of dollars and months of hassle.
For many years a, "Small Succession," was defined as one where the person who passed away either owned less than $75,000 worth of property or passed away more than 25 years earlier. But in 2017, the Louisiana Legislature revised La. CCP Art. 3421, to allow for small successions to be executed if the Decedent owned less than $125,000 or passed away more than 20 years earlier. This law went into effect on January 1, 2018.
This year, during the 2018 Regular Legislative Session, Senator Eddie J. Lambert has submitted House Bill No. 48 for consideration, which increases the dollar value limit for small successions to $250,000. Senator Lambert's bill would be valuable to both notaries and their clients alike, in that, if passed, notaries could have authority to assist even more people with our services, for less than it costs to hire an attorney. I personally have seen various persons come to me requesting small succession services, but end up having to turn them away because the Decedent's property was valued just barely over the previous limits. Those persons often had to go seek out an attorney, pay a $5,000 retainer, and go through months of paperwork to legally inherit that property.
The dollar value increase proposed by Senator Lambert is appropriate, fitting, and a valuable bill to both notaries and Louisiana citizens alike.