BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 898|
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THIRD READING
Bill No: AB 898
Author: Lieu (D)
Amended: 3/22/10
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-1, 06/23/09
AYES: Corbett, Harman, Florez, Leno
NOES: Walters
ASSEMBLY FLOOR : 49-29, 05/21/09 - See last page for vote
SUBJECT : Notaries public: Power of Attorney, Protests,
and Other
Documents
SOURCE : Secretary of State Debra Bowen
DIGEST : This bill makes changes to the law governing
notaries public: (1) it authorizes the Secretary of State
to refuse to process (authenticate) documents that are
clearly intended for fraudulent purposes, (2) it prohibits
the use of a subscribing witness when establishing a power
of attorney, just as a subscribing witness cannot now be
used for real property documents that must be recorded, and
(3) it eliminates the duty of a notary public to process
antiquated documents (i.e., "protests" of nonpayment of
negotiable instruments), unless the notary public works for
a financial institution.
Senate Floor Amendments of 3/22/10 amends two Business and
CONTINUED
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Professions Code sections in order to strengthen and
clarify current law regarding deceptive business practices.
ANALYSIS : Existing law prohibits a proof of execution of
any of several types of specified documents, including a
grant deed, mortgage, deed of trust, quitclaim deed, or
security agreement as it relates to the recording of
transfers of property, by use of a "subscribing witness."
(Civ. Code Sec. 1195.)
This bill adds, to the list of documents that may not be
acknowledged by use of a subscribing witness, a power of
attorney.
This bill expressly prohibits the use of proof of execution
to acknowledge any instrument that requires a notary public
to obtain a thumbprint from the party signing the document
in the notary public's journal.
Existing law provides that a protest is a certificate of
dishonor (of a payment claimed) 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 the dishonor occurs. (Cal. U. Com. Code Sec.
3505(b).)
This bill permits only a notary public during the course
and scope of employment with a financial institution (in
addition to a U.S. consul or vice consul or other person
authorized by the law of the state, government or country
where the dishonor occurred) to issue a protest.
Existing law defines 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 and nonpayment.
This bill limits this duty to notaries public who are
employed by a financial institution during the course and
scope of the notary's employment with the financial
institution.
Existing law makes it unlawful for a nongovernmental entity
to solicit funds or information by means of a mailing,
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electronic message, or Internet Web site that contains a
seal, insignia, trade, or brand name, or any other term or
symbol that reasonably could be interpreted or construed as
implying any state or local government connection,
approval, or endorsement, unless the nongovernmental entity
has an expressed connection with a state or local entity or
unless the solicitation contains specified disclosures in
conspicuous and legible type. Existing law requires a
business to include the contact information for a
referenced governmental agency in an unsolicited mailing
that offers to assist the recipient in dealing with the
governmental agency. A violation of these or other
provisions related to advertising is a misdemeanor,
punishable by imprisonment in the county jail not exceeding
six months, a fine not exceeding $1,000, or both.
This bill makes it unlawful for a nongovernmental entity to
solicit funds or information by any of those means that
contains an emblem that reasonably could be interpreted or
construed as implying any state or local government
connection, approval, or endorsement, unless the
nongovernmental entity has an expressed connection with a
state or local entity or unless the solicitation contains
the specified disclosures. The bill requires e disclosures
to be conspicuously displayed in specified locations, type,
and manner. The bill increases the maximum criminal fine
for a violation of these provisions to $2,500 and
authorizes a person to recover specified damages resulting
from a violation of these provisions. The bill deletes the
provisions requiring a business to include the contact
information for a referenced governmental agency in an
unsolicited mailing that offers to assist the recipient in
dealing with the governmental agency.
Existing law makes it unlawful for a person to make any
untrue or misleading statements in any manner in connection
with the offering or performance of an assessment reduction
filing service. Existing law provides that an untrue or
misleading statement includes representing that an offeror
of an assessment reduction filing service is, or is
affiliated with, any governmental entity by, among other
things, the use of a business name including the word
"appeal" or "tax" and any of a list of terms, including
"agency," "bureau," or "department."
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This bill provides that it is also an untrue or misleading
statement in connection with the offering or performance of
an assessment reduction filing service if the words "board"
or "commission" are used with the word "appeal" or "tax" in
the business name of an assessment reduction filing
service.
The bill makes other conforming changes to the law
governing the charging of fees by notaries public.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 3/23/09)
Secretary of State Debra Bowen (source)
American Society of Notaries
City of Riverside
National Notary Association
United States Notary Association
ARGUMENTS IN SUPPORT : According to the author's office:
As the economy worsens and home property values
continue to drop dramatically, blatant and costly
scams have arisen to defraud hardworking Californians
of their well-deserved money. Many of these scams and
fraudulent documents have become much more
sophisticated and appear to an average Californian as
being legitimate. These scams are pushing many
Californians into deeper debt and must be alleviated.
AB 898 addresses many of these activities by
preventing document fraud.
The National Notary Association is in support because it
"provides needed updates to certain California notarial
statutes and will better equip Notaries to serve as the
state's front line of defense against document fraud. ? The
NNA is in agreement with AB 898's stipulation that only
Notaries in financial institutions be allowed to perform
the Protest. Our experience has shown that Notaries who
perform this as a notarial act should have the appropriate
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business/commercial training and we therefore concur that
the act should only be performed by Notaries within
financial organizations."
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Beall, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,
Feuer, Fuentes, Furutani, Galgiani, Hall, Hayashi,
Hernandez, Hill, Huber, Huffman, Jones, Krekorian, Lieu,
Bonnie Lowenthal, Ma, Mendoza, Monning, Nava, John A.
Perez, V. Manuel Perez, Portantino, Price, Ruskin, Salas,
Skinner, Solorio, Swanson, Torlakson, Torres, Torrico,
Yamada, Bass
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Blakeslee, Conway, Cook, DeVore, Duvall, Emmerson,
Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,
Harkey, Jeffries, Knight, Logue, Miller, Nestande,
Niello, Nielsen, Silva, Smyth, Audra Strickland, Tran,
Villines
NO VOTE RECORDED: Fong, Saldana
RJG:nl 3/23/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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