BILL NUMBER: AB 898 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Lieu
FEBRUARY 26, 2009
An act to amend Section 1195 of the Civil Code, to amend Section
3505 of the Commercial Code, to amend Sections 8205, 8208, 8211, and
27287 of, and to add Section 12181 to, the Government Code, relating
to notaries public.
LEGISLATIVE COUNSEL'S DIGEST
AB 898, as introduced, Lieu. Notaries public.
(1) Existing law relating to the recording of transfers prohibits
a proof of the execution of any of several types of specified
instruments, including a grant deed, mortgage, deed of trust,
quitclaim deed, or security agreement.
This bill would add a power of attorney to the types of
instruments for which a proof of the execution is prohibited and
would further prohibit a proof of the execution for any instrument
requiring a notary public to obtain a thumbprint from the party
signing the document in the notary public's journal.
(2) Existing law provides that a protest is a certificate of
dishonor made by a United States consul or vice consul, or a notary
public or other person authorized to administer oaths by the law of
the place where dishonor occurs.
The bill would instead provide that a protest is a certificate of
dishonor made by a United States consul or vice consul, or a notary
public during the course and scope of employment with a financial
institution or other person authorized to administer oaths by the
laws of any other state, government, or country in the place where
dishonor occurs.
(3) Existing law prescribes the duties of a notary public,
including the duty to demand acceptance and payment of foreign and
inland bills of exchange, or promissory notes, to protest them for
nonacceptance or nonpayment, and to exercise any other powers and
duties that by the law of nations and according to commercial usages,
or by the laws of any other state, government, or country, may be
performed by notaries.
The bill would limit this duty to notaries public employed by
financial institutions.
(4) Existing law provides that the protest of a notary public,
under his or her hand and official seal, of a bill of exchange or
promissory note for nonacceptance or nonpayment, providing specified
information, is prima facie evidence of the facts recited therein.
The bill would instead provide that the protest of a notary public
employed by a financial institution, under his or her hand and
official seal, of a bill of exchange or promissory note for
nonacceptance or nonpayment, providing specified information, is
prima facie evidence of the facts recited therein.
(5) Existing law prescribes the maximum fees a notary public may
charge for specified services.
The bill would delete the prescribed maximum fees for every
protest for the nonpayment of a promissory note or for the nonpayment
or nonacceptance of a bill of exchange, draft, or check, for serving
every notice of nonpayment of a promissory note or of nonpayment or
nonacceptance of a bill of exchange, order, draft, or check, and for
recording every protest.
(6) Existing law sets forth the fees the Secretary of State is
authorized to charge for the provision of specified business
services.
The bill would authorize the Secretary of State's office to refuse
to perform a service or refuse a filing based on a reasonable belief
that the service or filing is being requested for any of a number of
specified improper purposes.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1195 of the Civil Code is amended to read:
1195. (a) Proof of the execution of an instrument, when not
acknowledged, may be made any of the following:
1. By the party executing it, or either of them.
2. By a subscribing witness.
3. By other witnesses, in cases mentioned in Section 1198.
(b) (1) Proof of the execution of a
power of attorney, grant deed, mortgage, deed of trust,
quitclaim deed, or security agreement is not permitted pursuant to
Section 27287 of the Government Code, though proof of the execution
of a trustee's deed or deed of reconveyance is permitted.
(2) Proof of the execution for any instrument requiring a notary
public to obtain a thumbprint from the party signing the document in
the notary public's journal is not permitted.
(c) Any certificate for proof of execution taken within this state
may be in the following form, although the use of other,
substantially similar forms is not precluded:
State of California )
ss.
County of __________ )
On ____ (date), before me, the undersigned, a notary public for
the state, personally appeared ____ (subscribing witness's name),
personally known to me (or proved to me on the oath of ____ [credible
witness's name], who is personally known to me) to be the person
whose name is subscribed to the within instrument, as a witness
thereto, who, being by me duly sworn, deposed and said that he/she
was present and saw ____ (name[s] of principal[s]), the same person
(s) described in and whose name(s) is/are subscribed to the within
and annexed instrument in his/her/their authorized capacity(ies) as
(a) party(ies) thereto, execute the same, and that said affiant
subscribed his/her name to the within instrument as a witness at the
request of ____ (name[s] of principal[s]).
SEC. 2. Section 3505 of the Commercial Code is amended to read:
3505. (a) The following are admissible as evidence and create a
presumption of dishonor and of any notice of dishonor stated:
(1) A document regular in form as provided in subdivision (b)
which purports to be a protest.
(2) A purported stamp or writing of the drawee, payor bank, or
presenting bank on or accompanying the instrument stating that
acceptance or payment has been refused unless reasons for the refusal
are stated and the reasons are not consistent with dishonor.
(3) A book or record of the drawee, payor bank, or collecting
bank, kept in the usual course of business which
that shows dishonor, even if there is no evidence of who
made the entry.
(b) A protest is a certificate of dishonor made by a United States
consul or vice consul, or a notary public during the course and
scope of employement with a financial institution or other
person authorized to administer oaths by the law of the
place laws of any other state, government, or country
in the place where dishonor occurs. It may be made upon
information satisfactory to that person. The protest shall identify
the instrument and certify either that presentment has been made or,
if not made, the reason why it was not made, and that the instrument
has been dishonored by nonacceptance or nonpayment. The protest may
also certify that notice of dishonor has been given to some or all
parties.
SEC. 3. Section 8205 of the Government Code is amended to read:
8205. (a) It is the duty of a notary public, when requested:
(1) To demand acceptance and payment of foreign and inland bills
of exchange, or promissory notes, to protest them for nonacceptance
and nonpayment, and, with regard only to the nonacceptance or
nonpayment of bills and notes, to exercise any other powers and
duties that by the law of nations and according to commercial usages,
or by the laws of any other state, government, or country, may be
performed by notaries. This paragraph applies only to notaries
public employed by financial institutions.
(2) To take the acknowledgment or proof of advance health care
directives, powers of attorney, mortgages, deeds, grants, transfers,
and other instruments of writing executed by any person, and to give
a certificate of that proof or acknowledgment, endorsed on or
attached to the instrument. The certificate shall be signed by the
notary public in the notary public's own handwriting. A notary public
may not accept any acknowledgment or proof of any instrument that is
incomplete.
(3) To take depositions and affidavits, and administer oaths and
affirmations, in all matters incident to the duties of the office, or
to be used before any court, judge, officer, or board. Any
deposition, affidavit, oath, or affirmation shall be signed by the
notary public in the notary public's own handwriting.
(4) To certify copies of powers of attorney under Section 4307 of
the Probate Code. The certification shall be signed by the notary
public in the notary public's own handwriting.
(b) It shall further be the duty of a notary public, upon written
request:
(1) To furnish to the Secretary of State certified copies of the
notary's journal.
(2) To respond within 30 days of receiving written requests sent
by certified mail from the Secretary of State's office for
information relating to official acts performed by the notary.
SEC. 4. Section 8208 of the Government Code is amended to read:
8208. The protest of a notary public employed by a financial
institution , under his or her hand and official seal, of a
bill of exchange or promissory note for nonacceptance or nonpayment,
specifying any of the following is prima facie evidence of the facts
recited therein:
(a) The time and place of presentment.
(b) The fact that presentment was made and the manner thereof.
(c) The cause or reason for protesting the bill.
(d) The demand made and the answer given, if any, or the fact that
the drawee or acceptor could not be found.
SEC. 5. Section 8211 of the Government Code is amended to read:
8211. Fees charged by a notary public for the following services
shall not exceed the fees prescribed by this section.
(a) For taking an acknowledgment or proof of a deed, or other
instrument, to include the seal and the writing of the certificate,
the sum of ten dollars ($10) for each signature taken.
(b) For administering an oath or affirmation to one person and
executing the jurat, including the seal, the sum of ten dollars
($10).
(c) For all services rendered in connection with the taking of any
deposition, the sum of twenty dollars ($20), and in addition
thereto, the sum of five dollars ($5) for administering the oath to
the witness and the sum of five dollars ($5) for the certificate to
the deposition.
(d) For every protest for the nonpayment of a promissory note or
for the nonpayment or nonacceptance of a bill of exchange, draft, or
check, the sum of ten dollars ($10).
(e) For serving every notice of nonpayment of a promissory note or
of nonpayment or nonacceptance of a bill of exchange, order, draft,
or check, the sum of five dollars ($5).
(f) For recording every protest, the sum of five dollars ($5).
(g)
(d) No fee may be charged to notarize signatures on
vote by mail ballot identification envelopes or other voting
materials.
(h)
(e) For certifying a copy of a power of attorney under
Section 4307 of the Probate Code the sum of ten dollars ($10).
(i)
(f) In accordance with Section 6107, no fee may be
charged to a United States military veteran for notarization of an
application or a claim for a pension, allotment, allowance,
compensation, insurance, or any other veteran's benefit.
SEC. 6. Section 12181 is added to the Government Code, to read:
12181. The Secretary of State's office may refuse to perform a
service or refuse a filing based on a reasonable belief that the
service or filing is being requested for an unlawful, false, or
fraudulent purpose, to promote or conduct an illegitimate object or
purpose, or is being requested or submitted in bad faith or for the
purpose of harassing or defrauding a person or entity.
SEC. 7. Section 27287 of the Government Code is amended to read:
27287. Unless it belongs to the class provided for in either
Sections 27282 to 27286, inclusive, or Sections 1202 or 1203, of the
Civil Code, or is a fictitious mortgage or deed of trust as provided
in Sections 2952, or 2963, of the Civil Code, or is a fictitious oil
and gas lease as provided in Section 1219 of the Civil Code, or is a
claim of lien, as provided in Section 3084 of the Civil Code, or a
notice of completion, as provided in Section 3093 of the Civil Code,
before an instrument can be recorded its execution shall be
acknowledged by the person executing it, or if executed by a
corporation, by its president or secretary or other person executing
it on behalf of the corporation, or, except for any power of
attorney, quitclaim deed , or grant deed other than
a trustee's deed or a deed of reconveyance, mortgage, deed of trust,
or security agreement, proved by subscribing witness or as provided
in Sections 1198 and 1199 of the Civil Code, and the acknowledgment
or proof certified as prescribed by law.