SB 90: Notaries Public; the modernization of certain legal, notarial, and court services using electronic means; provide

Senate Bill 90

By: Senators Tillery of the 19th and Albers of the 56th

A BILL TO BE ENTITLED

AN ACT

To amend Article 3 of Chapter 19 of Title 15 and Article 1 of Chapter 17 of Title 45 of the Official Code of Georgia Annotated, relating to the regulation of the practice of law and general provisions regarding notaries public, respectively, so as to provide for the modernization of certain legal, notarial, and court services using electronic means; to allow an attorney to conduct a real estate closing for property in this state using electronic means under certain conditions; to clarify the definition of the practice of law; to provide for definitions; to prohibit witness-only closings; to prohibit the unauthorized practice of law; to provide for penalties, liability, remedies, relief, and class action lawsuits; to provide for legislative construction; to provide for legislative findings; to provide for certain notarial acts to be performed remotely using electronic means when certain requirements are satisfied; to provide for requirements and exemptions; to permit the use of an electronic seal of office; to provide for criminal penalties and civil liability, including compensatory and other damages; to provide for class action lawsuits; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

PART I

Real estate closing using electronic means

SECTION 1-1.

The General Assembly recognizes that the Supreme Court of Georgia, in the exercise of its authority to govern the practice of law in this state, has issued several opinions addressing real estate closings and the practice of law, including, but not limited to, Formal Advisory Opinion No. 86-5 (86-R9) (May 12, 1989), Formal Advisory Opinion No. 00-3 (February 11, 2000), In re: Formal Advisory Opinion No. 00-3 (November 10, 2003), Formal Advisory Opinion No. 04-1 (August 6, 2004), In re: Formal Advisory Opinion No. 13-1 (September 22, 2014), UPL Advisory Opinion No. 2003-2 (April 22, 2003), and In re: UPL Advisory Opinion No. 2003-2 (November 10, 2003). The General Assembly finds that it is in the public's interest to codify the rulings of such opinions on what constitutes the unauthorized practice of law as it pertains to real estate closings in this state.

SECTION 1-2.

Article 3 of Chapter 19 of Title 15 of the Official Code of Georgia Annotated, relating to the regulation of the practice of law, is amended by revising Code Section 15-19-50, relating to "practice of law" defined, as follows:

"15-19-50.

(a) The practice of law in this state is defined as:

(1) Representing litigants in court and preparing pleadings and other papers incident to any action or special proceedings in any court or other judicial body;

(2) Conveyancing, including the transfer of ownership of real property located in this state or any act in a real estate closing that constitutes the practice of law;

(3) The preparation of legal instruments of all kinds whereby a legal right is secured;

(4) The rendering of opinions as to the validity or invalidity of titles to real or personal property;

(5) The giving of any legal advice; and

(6) Any action taken for others in any matter connected with the law.

(b) Nothing in paragraph (2) of subsection (a) of this Code section shall prohibit acts taken by an individual while solely representing himself or herself in the purchase or sale of real estate property located in this state."

SECTION 1-3.

Said article is further amended by adding new Code sections to read as follows:

"15-19-50.1.

As used in this article, the term:

(1) 'In person electronic notarization' means a notarial act in which: the signatory appears in front of and is identified by the notary in the same physical location at the time of notarization; the document is presented in a digital format and signed using an electronic signature; the notary witnesses the act of signing the document; and the notary uses an electronic seal and signature to notarize the document.

(2) 'Real estate closing using electronic means' refers to the continuous, interconnected series of events through which title to real property located in this state is conveyed from one party to another party and includes all acts conducted in whole or in part using electronic means as provided for in Code Section 15-19-50.2.

(3) 'Security instrument' means any written document presented for recording for the purpose of conveying or creating a lien or encumbrance on real estate for the purpose of securing a long-term note secured by real estate.

(4) 'Technology provider' means an individual or entity that offers the services of a tamper-evident technology for electronic notarial acts.

(5) 'Witness-only closing' means a real estate closing in which an attorney presides over the execution of deeds of conveyance and other closing documents but purports to do so merely as a witness and notary and not as someone who is practicing law.

15-19-50.2.

(a) Any witness-only closing shall be unlawful in this state.

(b) An attorney conducting any real estate closing shall:

(1) Be licensed and present in this state at the time of such closing;

(2) Directly supervise and be responsible for the entirety of such closing, including all employees, agents, and contractors who assist the attorney with such closing;

(3) Perform any and all duties otherwise required by law and by the rules and opinions of the Supreme Court of Georgia; and

(4) Comply with subsection (c) of this Code section if conducting a real estate closing using electronic means.

(c) In any real estate closing using electronic means, the participants shall have the following duties:

(1) The attorney shall:

(A) Obtain consent from all participants to such closing, including any mortgage lender, to the use of electronic means to facilitate such closing prior to such closing;

(B) Utilize two-way audio-video communication technology that is sufficiently secure to prevent interference with the authenticity, integrity, and security of all documents for such closing;

(C) Confirm the identity of any signatory through knowledge based authentication or the presentation of a government issued form of identification and credential analysis;

(D) Ensure that two-way audio-video communication technology records such closing and that such recording contains the following:

(i) The date and time of such closing, including any notarial act;

(ii) A description of the documents that are being notarized;

(iii) An attestation that the attorney is physically located in this state at the time of such closing; and

(iv) A clear image of any government issued identification that was used to verify the identity of each participant;

(E) Conduct only one real estate closing using electronic means at a time;

(F) Certify that the copy of the electronic record is an accurate copy of such record; and

(G) Retain possession of all electronic documents, a copy of the audio-video recording, and other records of such closing for at least six years;

(2) The witness shall:

(A)(i) Be in the same physical location as the signatory, able to see, hear, and communicate with the signatory, and able to witness the signature; or

(ii) Be present in this state and able to see, hear, and communicate with the signatory and witness the signature through two-way audio-video communication technology;

(B) Witness the signatory sign the document; and

(C) Immediately sign the document as a witness; and

(3) The notary public shall:

(A) Be the attorney conducting such closing and shall provide his or her bar number on each notarized document;

(B) Be present in this state;

(C) Be able to see, hear, and communicate with the signatory and witness the signature by being in the same physical location for an in person electronic notarization or by using two-way audio-video communication technology for a real estate closing using electronic means;

(D) Witness the signatory sign the document; and

(E) Immediately notarize the document using an electronic seal compliant with the provisions of Code Section 45-17-6.

(d) Any person, including, but not limited to, a notary public, a technology provider, a mortgage lender or its affiliates, employees, agents, and attorneys, or an attorney or the attorney's employee or agent, that aids or abets another person in violating the provisions of this Code section shall, upon the first or second conviction, be guilty of a misdemeanor; provided, however, that, upon a third or subsequent conviction, such person shall be guilty of a felony, punishable by imprisonment of not less than one year nor more than five years, a fine of up to $5,000.00, or both."

SECTION 1-4.

Said article is further amended by revising subsection (a) of Code Section 15-19-51, relating to unauthorized practice of law forbidden, as follows:

"(a) It shall be unlawful for any person other than a duly licensed attorney at law:

(1) To practice or appear as an attorney at law for any person other than himself or herself in any court of this state or before any judicial body;

(2) To make it a business to practice as an attorney at law for any person other than himself or herself in any of such courts;

(3) To hold himself or herself out to the public or otherwise to any person as being entitled to practice law;

(4) To render or furnish legal services or advice;

(5) To furnish attorneys or counsel;

(6) To render legal services of any kind in actions or proceedings of any nature;

(7) To assume or use or advertise the title of 'lawyer,' 'attorney,' 'attorney at law,' or equivalent terms in any language in such manner as to convey the impression that he or she is entitled to practice law or is entitled to furnish legal advice, services, or counsel; or

(8) To advertise that either alone or together with, by, or through any person, whether a duly and regularly admitted attorney at law or not, he or she has, owns, conducts, or maintains an office for the practice of law or for furnishing legal advice, services, or counsel; or

(9) To perform any act that constitutes the practice of law under the law or under the rules and opinions of the Supreme Court of Georgia."

SECTION 1-5.

Said article is further amended by revising Code Section 15-19-58, relating to injunctive relief, venue, procedure, and other remedies not curtailed, as follows:

"15-19-58.

(a) The Attorney General, any district attorney, Either the State Bar of Georgia, the Judicial Council of this state, or any organized bar association of this state is authorized to institute in the proper superior court of this state an action or actions seeking injunctive relief, civil penalties not to exceed $10,000.00 per violation, restitution for an ascertainable loss caused by such violation, and investigative costs, reasonable expenses, and attorney's and witness fees, against any person, firm, or corporation, when it determines after an investigation determines that such person, firm, or corporation:

(1) Is engaged in the unauthorized or unlawful practice of law;

(2) Reserved;

(3) Is in In violation of Code Section 15-19-55 or rules promulgated by the Supreme Court, is orally or by in writing, for a consideration then or afterwards to be charged or received by himself or herself or another, offering or tendering to another person, without the solicitation of such other person, the services of an attorney at law, resident or nonresident of this state, in order for the attorney to institute an action or represent the person in the courts of this or any other state or of the United States in the enforcement or collection by law of any claim, debt, or demand of any such person against another or is suggesting or urging the bringing of the action; or

(4) Is engaged in the practice of seeking out and proposing to other persons that they present and urge through any attorney at law the collection of any claim, debt, or demand of such person against another.

(b) The venue of any action authorized by this Code section shall be determined by the constitutional and statutory provisions relating to cases in equity.

(c) The hearing, interlocutory or final, and the trial of actions authorized by this Code section shall be governed by the laws of this state relating to injunctions, as shall appeals from orders or judgments therein.

(d) In any action brought under this Code section, the final judgment, if in favor of the plaintiff, shall perpetually enjoin the defendant or defendants from the commission or continuance of the act or acts complained of. Restraining orders or temporary injunctions may be granted as in other cases in which injunctive relief is sought. Any person who violates the terms of an injunction, judgment, or consent order entered under the provisions of this Code section shall forfeit and pay to the state a civil penalty of not more than $20,000.00 per violation of such injunction, judgment, or consent order, and investigative costs, reasonable expenses, and attorney's and witness fees.

(e) This Code section and Code Section 15-19-57 shall not repeal or curtail any remedy provided in cases of unauthorized or unlawful practice of law, and nothing contained in these Code sections shall be construed as abridging the powers of the courts in such matters."

SECTION 1-6.

Said article is further amended by revising Code Section 15-19-60, relating to consumer action for damages for violations, as follows:

"15-19-60.

Any consumer who is a party to a one-to-four family residential real estate transaction or a consumer debtor or a trustee of a consumer debtor in a bankruptcy case that involves a one-to-four family residential real property who is damaged by a violation of this article or a violation of the Supreme Court's rules or opinions governing the unlicensed practice of law shall be entitled to maintain a civil action to recover damages, treble damages, reasonable attorney's fees, and expenses of litigation. A claim for a violation of this Code section shall be asserted in an individual action only and shall not be the subject of a class action under Code Section 9-11-23. This Code section shall not prevent the activities authorized by Code Section 15-19-52, 15-19-53, 15-19-54, 15-19-59, or 43-40-25.1.

(a) Any buyer, seller, or borrower that is or was a party to a residential or commercial real estate closing in which any person involved in such transaction engaged in conduct constituting the unauthorized or unlawful practice of law or a class of such plaintiffs shall be entitled to maintain a civil action to recover damages. Such damages shall include, but not be limited to:

(1) Actual monetary losses incurred by the plaintiff or the class of plaintiffs as a result of a violation of the provisions this article, or $1,000.00 in damages for each such violation, whichever is greater;

(2) Any expenses paid by the plaintiff or the class of plaintiffs for the services of any person or entity that violated the provisions of this article; and

(3) De minimis or nominal damages incurred by the plaintiff or the class of plaintiffs as a result of a violation of the provisions of this article.

(b) In addition to any other penalties provided for by law, if the court finds that the defendant willfully or knowingly violated the provisions of this article, the court may, in its discretion, increase the award to an amount equal to not more than three times the amount available under paragraph (1) of subsection (a) of this Code section. The court shall consider the frequency and persistence of noncompliance by the defendant, the nature of such noncompliance, the extent to which such noncompliance was intentional, the number of persons or sales impacted by the violation, the impact of the judgment, and the resources of the defendant.

(c) Any person, including, but not limited to, a notary public, a technology provider, a mortgage lender or its affiliates, employees, agents, and attorneys, or an attorney or the attorney's employee or agent, that, while participating in a residential or commercial real estate closing, engages in conduct that constitutes the unauthorized or unlawful practice of law, knowingly aids and abets another person in committing such conduct, or otherwise violates the provisions of this article regulating real estate transactions shall be liable for damages resulting from such conduct.

(d) When the loan agreement for a real estate transaction contains an arbitration clause and the mortgage lender or such lender's agent engages in conduct that constitutes the unauthorized or unlawful practice of law or an unlawful notarial act, the arbitration clause shall not be enforceable to the extent it restricts or excludes damages or remedies that would be available to the plaintiff in court, including the right to participate in a class action.

(e) The court may provide such equitable relief it deems necessary or proper, including invalidating any security instrument in connection with the sale of the real estate property at issue executed in violation of the provisions of this article and enjoining the defendants from further violations of the provisions of this article.

(f) In a successful action to enforce the provisions of this article, a court shall award plaintiffs costs, including reasonable attorney's fees. When a class of plaintiffs prevails, class counsel shall be entitled to the greater of one-third of the class's recovery or the number of hours billed at a reasonable hourly rate times a multiplier set by the court in its discretion, whichever is greater.

(g) A person shall not be held liable for damages in any action brought under this article if the person shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures implemented to avoid such error.

(h) A cause of action brought under this Code section may be filed in any court of competent jurisdiction within this state without regard to the amount in controversy. Such cause of action shall be filed within one year from the date on which the violation occurred or the date of discovery of the violation, whichever is later.

(i) This Code section shall not prevent the activities authorized by this article, Chapter 17 of Title 45, and Code Section 43-40-25.1."

PART II

Notarization using electronic means

SECTION 2-1.

Article 1 of Chapter 17 of Title 45 of the Official Code of Georgia Annotated, relating to general provisions regarding notaries public, is amended by revising Code Section 45-17-9, relating to where notarial acts may be exercised, as follows:

"45-17-9.

(a) Notarial acts may be exercised in any county in the state, provided that the notary public shall be physically located in this state and the notarial act is performed in the physical presence of the notary public as provided in subsection (b) of this Code section or is performed remotely as provided in subsection (c) of this Code section.

(b) Any notarial act to be performed in the physical presence of the notary public shall take place in the same physical location and at the same time and close enough for the notary public to see, hear, communicate with, and exchange tangible identification credentials with the individual whose act is being notarized.

(c) Any notarial act to be performed remotely shall meet the following requirements:

(1) The notary public shall use real-time two-way audio-video communication technology that allows the parties to see, hear, and communicate with each other and is sufficiently secure to prevent interference with the authenticity, integrity, and security of the transaction, corruption or loss of the recording of the transaction, and unauthorized use of or tampering with the recording, record, and backup record;

(2) The signatory shall be physically located in the United States or one of its territories or military bases or at a United States embassy, consulate, or diplomatic mission location and present evidence of his or her identity and location;

(3) The notary public shall witness the signature;

(4) The notary public shall document evidence of the acts provided for in paragraphs (1) through (3) of this subsection; and

(5) The notarial act shall not be performed to:

(A) Create or execute a will, codicil, or testamentary trust; or

(B) Notarize the signature on any security instrument or document executed for the conveyance of real property located in this state, whether or not such security instrument or document is recorded, except as provided for in Code Section 15-19-50.2.

(d) A notary public may use an electronic seal of office to perform a notarial act as provided for in subsection (c) of this Code section or to perform an in-person electronic notarization in a real estate closing using electronic means as provided for in Code Section 15-19-50.2. Such electronic seal of office shall comply with the provisions of Code Section 45-17-6."

SECTION 2-2.

Said article is further amended by revising Code Section 45-17-20, relating to penalty and prosecution of violations of article, as follows:

"45-17-20.

(a) Any person who violates subsection (d) of Code Section 45-17-8 shall be guilty of a misdemeanor or performs any notarial act without complying with the provisions of this article shall, upon a first or second conviction, be guilty of a misdemeanor; provided, however, that, upon a third or subsequent conviction, such person shall be guilty of a felony, punishable by imprisonment of not less than one year nor more than five years, a fine of up to $5,000.00, or both.

(b) Any person who performs any notarial service without complying with the provisions of this article shall, upon the, including, but not limited to, a notary public, a technology provider, a mortgage lender or its affiliates, employees, agents, and attorneys, or an attorney or the attorney's employee or agent, that aids or abets another person in violating the provisions of this article, including, but not limited to, directing the performance of an unauthorized notarial act, shall, upon a first or second conviction, be guilty of a misdemeanor and; provided, however, that, upon a third or subsequent conviction, such person shall be guilty of a felony, punishable by imprisonment of not less than one year nor more than five years, a fine of up to $5,000.00, or both."

SECTION 2-3.

Said article is further amended by adding a new Code section to read as follows:

"45-17-21.

(a) Any person, including, but not limited to, a notary public, a technology provider, a mortgage lender or its affiliates, employees, agents, and attorneys, or an attorney or the attorney's employee or agent, that, while participating in a residential or commercial real estate closing involving property located in this state, engages in conduct that constitutes an unlawful notarial act, knowingly aids and abets another person in committing an unlawful notarial act, or otherwise violates the provisions of this article regulating real estate transactions shall be liable for damages resulting from such illegal conduct.

(b) Any buyer, seller, or borrower that is or was party to a residential or commercial real estate closing involving property located in this state in which any person engaged in an unlawful notarial act or other violation of the provisions of this article or a class of such plaintiffs shall be entitled to maintain a civil action to recover damages. Such damages shall include, but not be limited to:

(1) Actual monetary losses incurred by the plaintiff or class of plaintiffs as a result of a violation of the provisions of this article, or $1,000.00 in damages for each such violation, whichever is greater;

(2) Any expenses paid by the plaintiff or class of plaintiffs for the services of any person or entity that violated the provisions of this article; and

(3) De minimis or nominal damages incurred by the plaintiff or class of plaintiffs as a result of a violation of the provisions of this article.

(c) In addition to penalties provided for in this article, if the court finds that the defendant willfully or knowingly violated the provisions of this article, the court may, in its discretion, increase the award to any amount equal to not more than three times the amount available under paragraph (1) of subsection (b) of this Code section.

(d) When the loan agreement for a real estate transaction contains an arbitration clause and the mortgage lender or such lender's agent engages in conduct that constitutes an unlawful notarial act, the arbitration clause shall not be enforceable to the extent it restricts or excludes damages or remedies that would be available to the plaintiff in court, including the right to participate in a class action.

(e) The court may provide such equitable relief it deems necessary or proper, including invalidating any security instrument executed in violation of Code Section 45-17-9 in connection with the sale of the real estate property at issue and enjoining the defendants from further violations of the provisions of this article.

(f) In a successful action to enforce the provisions of this article, a court shall award the plaintiff costs, including reasonable attorney's fees. When a class of plaintiffs prevails, class counsel shall be entitled to the greater of one-third of the class's recovery or the number of hours billed at reasonable hourly rate times a multiplier set by the court in its discretion, whichever is greater.

(g) A cause of action brought under this Code section may be filed in any court of competent jurisdiction within this state without regard to the amount in controversy. Such cause of action shall be filed within one year from the date on which the violation occurred or the date of discovery of the violation, whichever is later."

PART III

Effective date and repealer

SECTION 3-1.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 3-2.

All laws and parts of laws in conflict with this Act are repealed.