West Virginia Revises Notary and Consumer Credit Protection Provisions
by: Louis Danastorg
House Bill 4360
West Virginia has amended and reenacted provisions in section 46A article 2 relating to conduct that constitutes unfair or unconscionable conduct when collecting or attempting to collect a debt. Unfair or unconscionable conduct now includes:
a) Seeking or obtaining any written statement or acknowledgement that specifies that a consumer’s obligation was incurred for necessaries of life when such is not true;
b) Seeking or obtaining any written statement or acknowledgement from a consumer having been declared bankrupt that contains an affirmation of any obligation without clearly disclosing the nature and consequences of making such a statement and the fact that the consumer is not legally obligated to do so;
c) Collecting or attempting to collect any part of the debt collector’s fee, provided that reasonable collection costs and charges necessary for the collection of amounts due upon delinquent educational loans may be recovered when the terms of the obligation provide for such. Further, recovery of attorney’s fees and collection costs may not exceed 33.333% of the amount due and owing to the institution;
d) Collecting or attempting to collect any interest or other charge incidental to the principal obligation unless such incidental expense is expressly authorized in the original agreement and by statute;
e) Any communication with the consumer that is represented by an attorney, and that attorney’s name and address are known or could be easily discovered.
f) Failing to provide in the initial written communication with a consumer statutory obsolescence disclosure information, relating to the debtor’s inability to sue the consumer due to the age of the debt and whether or not the debtor may report the unpaid balance to the credit reporting agencies, when attempting to collect a debt that has aged passed the statute of limitations for filing a legal action.
House Bill 4012
West Virginia enacted provisions within the Revised Uniform Law on Notarial Acts relating to records and papers (Chapter 39) and fees (Chapter 59).
Chapter 39
Article 1, Section 5: Acknowledgment by Husband and Wife
A wife may acknowledge together with or separately from her husband when spouses have signed a writing purporting to convey an interest in real property. Either party may sign before the other, or they may acknowledge the writing simultaneously. If both wish to sign at the same time, the statute provides sample language for the certificate of acknowledgment.
Article 4, Section 3: Applicability
This article applies to notarial acts performed on or after July 1, 2014.
Article 4, Section 4: Authority to Perform Notarial Act
A notarial officer may perform a notarial act authorized by this article, but may not do so with respect to a record to which the officer or the officer’s spouse is a party, or in which either spouse has a beneficial interest. A notarial act performed in violation of this section is voidable.
Article 4, Section 5: Requirements for Certain Notarial Acts
Notarial officers that take acknowledgments of record shall determine that the individual appearing before the officer has the identity claimed and that the signature on record is the signature of the individual. Notarial officers that take verifications of statements on oath or affirmation shall make the same determinations. Notarial officers that witness or attest to a signature shall determine that the individual appearing and signing the record has the identity claimed. Notarial officers certifying copies of record must determine that the copy is a full, true and accurate reproduction.
Article 4, Section 6: Personal Appearance Required
Individuals making a statement or executing a signature must appear personally before the notarial officer. Video or audio appearance, even if synchronous, is not sufficient.
Article 4, Section 7: Identification of Individual
A notarial officer has personal knowledge of an individual’s identity if the officer personally knows the individual through dealings that would provide reasonable certainty that the individual has the identity claimed. Officers have satisfactory evidence of an individual’s identity if provided: a passport, driver’s license or other government issued identification card (current and not expired more than three years), or by verification on oath or affirmation from a credible and identifiable witness that appears personally before the officer. Notarial officers may require individuals to provide additional information or identification materials to ensure the identity of the individuals.
Article 4, Section 8: Authority to Refuse to Perform Notarial Act
A notarial officer may refuse to perform a notarial act if the officer is not satisfied that the individual executing the record is competent or has made his or her signature knowingly and voluntarily. A notarial officer may also refuse to perform a notarial act unless such refusal is prohibited by law.
Article 4, Section 9: Signature if Individual is Unable to Sign
An individual physically unable to sign a record may direct an individual other than the notarial officer to sign the record. The notarial officer shall insert “signature affixed by…at the direction of…” or similar words to the record.
Article 4, Section 10: Notarial Act in this State
A notarial act may be performed by a notary public of WV, a judge, clerk or deputy clerk, or any other individual authorized to perform the specific act. The signature and title of the individual performing a notarial act shall be prima facie evidence that the signature is genuine and the individual holds the designated title. Such signature and title establish the authority to perform the notarial act.
Article 4, Section 11-13: Notarial Act…in another State; Under Authority of Federally Recognized Indian Tribe; Under Federal Authority
Notarial acts performed in another state, under the authority of a federally recognized Indian tribe, or under federal authority has the same effect under WV law as if performed by a notarial officer of WV if the individual performing the notarial act is an authorized notary public under the other jurisdiction, authorized military service member, or otherwise falls within one of the categories in Article 4, Section 10.
Article 4, Section 14: Foreign Notarial Act
Notarial acts performed under the authority and in the jurisdiction of a foreign state or international governmental organization have the same effect in WV as if performed by a notarial officer of WV. The foreign officers authority to perform the act may established by title of office and indication of authority that appears in a foreign law digest. The signature and official stamp, an apostille issued by a foreign state party to the Hague Convention, or a consular authentication issued by an individual designated by the US Department of State as a notarizing officer for performing notarial acts overseas may serve as prima facie evidence that the signature is valid and the individual holds the designated title.
Article 4, Section 15: Certificate of Notarial Act
A notarial act must be evidenced by a certificate. The certificated must:
1. Executed contemporaneously with the performance of the notarial act;
2. Signed and dated by the notarial officer;
3. Identify the jurisdiction where the act is performed;
4. Contain the notarial officer’s title;
5. Indicate the expiration date of the officer’s commission if the notary officer is a notary public.
An official stamp must be affixed to the certificate if the notarial act regarding a tangible record is performed by a notary public. If not a notarial public and the certificate contains the information listed above, an official stamp may be affixed.
A certificate of a notarial act is sufficient if the above conditions are met, and:
1. In a short form set forth in Article 4, Section 16;
2. In a form otherwise permitted by WV law or law applicable in the jurisdiction where the act was performed;
3. Sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the notarial act.
Article 4, Section 17: Official Stamp
A notary public’s official stamp must include: the notary public’s name, address, jurisdiction, commission expiration date, any other information required by the Secretary of State; and must be capable of being copied together with the record to which it is affixed.
Article 4, Section 18: Stamping Device
The notary public is responsible for the security of the notary public’s stamping device and may not allow anyone else to use the device to perform a notarial act. Upon resignation or otherwise leaving his or her office, the notary public shall disable or destroy the stamping device. If the stamping device is lost or stolen the Secretary of State must be promptly notified.
Article 4, Section 19: Notification Regarding Performance of Notarial Act on Electronic Record
A notary public may select a tamper-evident technology to perform notarial acts with respect to electronic records, but must first notify the Secretary of State and identify the technology.
Article 4, Section 20: Commission as Notary Public
This section outlines the qualifications for applying to become a notary public. A commission to act as a notary public authorizes the notary public to perform notarial acts, but does not provide any immunity or benefit conferred upon public officials or employees.
Article 4, Section 21: Grounds to Condition Commission of Notary Public
The Secretary of State may deny, refuse to renew, revoke, suspend, or otherwise impose conditions on a commission as a notary public for any act or omission that demonstrates the individual lacks the honesty, integrity, competence, or reliability to act as a notary public:
1. Failure to comply with this article;
2. Fraudulent misstatements or omissions on application;
3. Conviction of any felony or crime involving fraud or dishonesty;
4. Failure to discharge any duty required of a notary public;
5. Use of false or misleading advertising;
6. Denial, refusal to renew, revocation, or suspension of commission in another state; 7. Failure to maintain an assurance;
8. Failure to notify the Secretary of State of an address or name change.
Article 4, Section 22: Database of Notaries Public
The Secretary of State shall maintain an electronic database of notaries public.
Article 4, Section 23: Prohibited Acts
Commission as a notary public does not authorize an individual to:
1. Assist individuals to draft legal documents, give legal advice or otherwise practice law;
2. Act as an immigration consultant
3. Represent a person in a judicial or administrative proceeding relating to immigration to the US or US citizenship;
4. Receive compensation for false or deceptive advertising and offering legal services without being a licensed attorney.
Article 4, Section 24: Validity of Notarial Acts
The failure of a notarial officer to perform a duty or meet a requirement does not invalidate a notarial act performed by the notarial officer.
Article 4, Section 26: Notary Public Commission
A commission as a notary public in effect on June 30, 2014 continues until its expiration date. An appointment as commissioner under the repealed provisions, in effect on June 30, 2014, continues until its expiration date.
Article 4, Section 27: Savings Clause
This article does not affect the validity or effect of a notarial act performed before July 1, 2014.
Article 4, Section 30: Maximum Fees
The maximum fee for each signature notarized is $5; $5 for each 8″ x 11″ page of a document’s copy kept in the notary’s file; and $5 for any other notarial act performed.
Article 4, Section 32: Liability of Notary and Notary’s Employer
A notary public is liable to the parties involved for all damages proximately caused by the notary’s misconduct. The notary’s employer is also liable if the notary acted within the scope of his or her employment and the employer consented to the misconduct.
Article 4, Section 33: Criminal Penalties
1. Knowingly and willfully committing official misconduct is a misdemeanor and upon conviction the notary may be fined up to $5000 and/or jailed up to a year.
2. Reckless or negligent official misconduct is a misdemeanor carrying up to a $1000 fine.
3. Willfully impersonating a notary while not lawfully appointed and commissioned is a misdemeanor and upon conviction the individual may be fined up to $5000 and/or jailed up to a year.
4. Unlawfully possessing a notary’s seal is a misdemeanor carrying up to a $1000 fine.
Chapter 59
Article 1, Section 2: Fees to be charged by the Secretary of State
The Secretary of State shall charge for services rendered in his or her office by the person to whom service has been rendered. Chapter 59 outlines the specific fees and allowances to be charged for certain services performed at the Secretary of State’s office.
About the Author
Louis Danastorg, J.D., M.B.A. is Regulatory Compliance Consultant at Bankers Advisory, Inc. He is a graduate of Vanderbilt University and earned his Juris Doctor and Masters of Business Administration from Suffolk University. He can be reached at Louis@bankersadvisory.com
Anna DeSimone founded Bankers Advisory in 1986 and is a nationally recognized authority in residential mortgage lending. She has received numerous industry awards and has authored more than 40 best practices guides and hundreds of articles.
Comments are closed.