HB4689 93RD GENERAL ASSEMBLY

LRB093 20758 LCB 46652 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
HB4689

Introduced 02/04/04, by John A. Fritchey

SYNOPSIS AS INTRODUCED:

New Act

Creates the Civil Law Notary Act. Provides that the Secretary of State shall have the power to appoint civil law notaries. Authorizes civil law notaries to issue brevets, minutes, and notarial deeds. Lists the powers and obligations of a civil law notary. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning civil law notaries.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Civil Law Notary Act.

Section 5. Definition. For purposes of this Act:

"Authentic act" means an instrument executed by a civil law notary referencing this Act, which is imbued by the State with the legal acceptance of the certainty that comes from the presumption of truth that accompanies the document and that includes the particulars and capacities to act of transacting parties, a confirmation of the full text of any necessary instrument, the signatures or their legal equivalent of any transacting parties, the signature and seal of a civil law notary, and any other information prescribed by the Secretary of State.

"Brevet" means a private document in which a civil law notary attests to the authenticity of the signature or signatures, a fact, or a contract. Brevets may be used, among other things, to certify signatures, prescribe oaths, certify a translation or a copy of a document that is not part of the civil law notary's protocol, or certify the identity of any object or thing.

"Civil law notary" means a person who is admitted to the practice of law in this State, who has practiced law in a United States jurisdiction for at least 5 years, and who is appointed by the Secretary of State as a civil law notary.

"Minute" mean an authentic act written by a civil law notary that contains the exact narration of a finding of fact or facts influencing the rights of private parties of which the civil law notary has personal knowledge and that due to the nature of the authentic act does not constitute a contract or juridical business. Types of minutes include, but may not be limited to:

(1) "General minutes", which means a minute providing a certification of general facts known to the civil law notary;

(2) "Minutes of notoriety", which means a minute providing a certification that a fact is generally known by the people who have a direct or close relationship with the factual situation or its consequences or who belong to the social or economic environment of the person affected by a particular fact;

(3) "Minutes of correction", which means a minute for the purpose of rectifying minor errors in forms or omissions made by a civil law notary in prior authentic acts; or

(4) "Minutes of addition", which means a minute for the purpose of including a document in a civil law notary's protocol in order to provide for the preservation of the document, the limited memorialization of domestic private documents, or the execution of foreign legal documents.

"Notarial deed" means an authentic act that contains a contract, transaction, or other juridical act and that may also include the certification of facts. Notarial deeds may involve either a single party, as in the case of a will, or multiple parties, as with a contract.

"Protocol" means a registry maintained by a civil law notary in which the acts of the civil law notary are archived.

Section 10. Appointment; authorization.

(a) The Secretary of State shall have the power to appoint civil law notaries and to administer this Act.

(b) A civil law notary is authorized to issue brevets, minutes, and notarial deeds and may authenticate or certify any document, transaction, event, condition, or occurrence. The contents of an authentic act and matters incorporated in the authentic act shall be presumed legal and accurate. The presumption may be rebutted in litigation upon a showing of clear and convincing evidence. A civil law notary may also administer oaths and make certificates thereof when necessary for execution of any writing or document to be attested, protested, or published under the seal of a notary public. A civil law notary may also take acknowledgement of deeds and other instruments of writing for record.

(c) The authentic acts, oaths, and acknowledgments of a civil law notary shall be chronologically recorded in the civil law notary's protocol in a manner prescribed by the Secretary of State.

(d) The civil law notary may, without prejudice to his or her duty to ensure professional confidentiality, issue certified copies of authentic acts to individuals who, in his or her opinion, have a legitimate interest in the contents of the authentic act. Certified copies of authentic acts shall have the same legal force and effect as the original.

(e) A civil law notary is obligated to:

(1) Draw up authentic acts in accordance with his or her knowledge and comprehension and the documents must clearly reflect the wishes of the contracting parties duly adapted to legal requirements necessary for the documents to have full legal force and effect.

(2) Represent the transaction itself in the creation of the authentic act. For this purpose, the civil law notary acts as an intermediary where there are multiple parties to a transaction.

(3) Use his or her best efforts to advise all parties to the transaction equally, accurately, fully, and impartially regarding the nature and legal consequences of the transaction.

(4) Refrain from representing any party in any matter arising from or related to the civil law notary's authentic act.

Section 15. Rules. The Secretary of State shall adopt rules prescribing:

(1) The form and content of authentic acts, oaths, acknowledgements, and signatures and seals or their legal equivalents.

(2) Procedures for the permanent archiving of authentic acts, for the maintenance of records of acknowledgments and oaths, and for the administration of oaths and taking of acknowledgments.

(3) The charging of reasonable fees to be retained by the Secretary of State for the purpose of administering this Act.

(4) Educational requirements and procedures for testing an applicant's knowledge of all matters relevant to the appointment, authority, duties, or legal or ethical responsibilities of a civil law notary.

(5) Procedures for the disciplining of a civil law notary including, but not limited to, the suspension and revocation of his or her appointment for failure to comply with the requirements of this Act or the rules adopted pursuant to this Act or for misrepresentation or fraud regarding the civil law notary's authority, the effect of the civil law notary's authentic acts, or the identities or acts of the parties to a transaction.

(6) Bonding or errors and omissions insurance requirements, or both, for civil law notaries.

(7) Other matters necessary for administering this Act.

Section 20. Powers.

(a) The powers of civil law notaries include, but are not limited to, all of the powers of a notary public under the laws of this State.

(b) This Act shall not be construed as abrogating the provisions of any other Act relating to notaries public, attorneys, or the practice of law in this State.

Section 25. Certificate of authority. If certification of a civil law notary's authority is necessary for a particular document or transaction, it must be obtained from the Secretary of State.

Upon receipt of a written request from a civil law notary and the fee prescribed by the Secretary of State, the Secretary of State shall issue a certificate of the civil law notary's authority, in a form prescribed by the Secretary of State, which shall include a statement explaining the legal qualification and authority of a civil law notary in this State. The fee prescribed for the issuance of the certificate under this Section may not exceed $20 per document. The Secretary of State may adopt rules to implement this Section.

Section 30. Severability. If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity of that provision or application does not affect other provisions or applications that can be given effect without the invalid provision or application.

Section 35. Conflict of law. All laws or parts of laws in conflict with this Act are superseded.

Section 99. Effective date. This Act takes effect upon becoming law.