Arkansas Modifies Provisions Regarding Notary Publics
The General Assembly of the state of Arkansas has recently amended Arkansas Code § 21-6-309, which relates to notary publics. These updates are effective as of August 18, 2017.
Previously, the state had set the fees that a notary public was permitted charge. For each notarial act he or she was only permitted to charge $5.00, plus mileage based on the federal rate of mileage reimbursement.
The updated law, however, allows each notary public to set his or her own fees. The only requirements are that the fees are reasonably set by the notary public, and agreed upon by the client before the notarial act occurs. If a notary public is found to have violated this section, he or she may be fined no less than $100.00 for each offense.
As with the prior law, when performing a notarial act, a notary public must sign his or her official signature (the signature on file with the Secretary of State) on every notary certificate, in either blue or black ink. However, the updated provisions provide that a notary public may refuse to perform a notarial act for any reason. The law also suggests several scenarios where a refusal to perform a notarial act would be proper. These include when the principal does not appear to understand the nature of the transaction, does not appear to be acting on his or her own volition, lacks the ability to sign the document using letters or characters of a language that the notary public understands, or is not able to directly communicate in a language understood by both the principal and the notary public.
The law also discusses the scenario where a principal is unable to sign his or her name. The update states that a “signature by mark” on a notarial document will be found legal if certain conditions are met. The principal must be presently unable to write or sign his or her name, and the signature by mark must be witnessed by at least one disinterested person. In addition, the notary public must write below the signature by mark, “Mark affixed by (Name of signer by mark) in the presence of (name(s) of witnesses).”
When a principal is physically unable to sign by mark, a disinterested third party may sign the name of the principal, if certain conditions are met. First, in the presence of two disinterested witnesses, the principal must direct a disinterested third party to sign his or her name. The disinterested third party must then sign the name of the principal in the presence of the notary public, the principal, and the disinterested witnesses. In addition, each disinterested witness must sign his or her own name next to the signature. And finally, the notary public must write below the signature, “Signature affixed by (name of third party) at the direction and in the presence of (name of principal unable to sign or make a mark) and also in the presence of (names of two witnesses).”
Lastly, the update sets out the requirements for the notarial certificate, which the notary public must execute with each notarial act involving a document. The notarial certificate must be worded in English, and must include the official signature of the notary public (the signature on file with the Secretary of State). The certificate must also include the official seal of the notary public, the venue of the notarial act (including state and county), and the date of the notarial act.
The full text is available at:
http://www.arkleg.state.ar.us/assembly/2017/2017R/Bills/HB1450.pdf
Zachary Pearlstein, JD, is a Regulatory Compliance Director with CLA's Mortgage Advisory Division. He joined CLA on January 1, 2014, as part of its acquisition of Bankers Advisory, Inc. Zachary oversees Mortgage Advisory's regulatory compliance team, which focuses on federal and state compliance, fair lending, and the Home Mortgage Disclosure Act (HMDA). He is a graduate of Brandeis University and earned his juris doctor at Suffolk University Law School. He is admitted to the Massachusetts Bar.
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