Bulletin: MT2015002

Dear Associates:

Over all, the 2015 Legislative Session was relatively mild for our industry. Once we overcame the effort by some to pass a condominium conversion/revocation statute, not much else happened that impacted us. New legislation passed that affected appraisers (HB0029); the regulation of engineers and surveyors (HB0063); how to handle surplus funds following a foreclosure (HB0164); and increased the coal tax trust fund money available for veteran home loans (SB 0380).

The following is a summary of legislation that was passed during the 2015 legislation.  

• HB 0053 Permit discounts to military or veterans by property/casualty insurers. (This bill removes the restrictions on providing rebates, favors or special inducements to anyone in or retired from the armed forces-and their spouse or dependent.)

Section 33-18-210. Unfair discrimination and rebates prohibited -- for title, property, casualty, and or surety insurances -- exceptions -- limitations.

Except as provided in subsection (4), a title, property, casualty, or surety insurer or an employee, representative, or insurance producer of an insurer may not, as an inducement to purchase insurance or after insurance has been effected, pay, allow, or give or offer to pay, allow, or give, directly or indirectly, a:

(a) rebate, discount, abatement, credit, or reduction of the premium named in the insurance policy; (b) special favor or advantage in the dividends or other benefits to accrue on the policy; or (c) valuable consideration or inducement not specified in the policy, except to the extent provided for in an applicable filing with the commissioner as provided by law.

(4) The prohibitions under subsections (1) and (2) do not apply to an active, retired, or honorably separated member of the United States armed forces as described in [section 1(1)(a)] or to a spouse, surviving spouse, dependent, or heir of a United States armed forces member as provided in [section 1].

• HB 0074 Require data breach notice to attorney general and insurance commissioner. (This bill requires you to notify any person of any breach of your computer system and to also notify the insurance commissioner.)

33-19-321. Computer security breach

(5) Any licensee or insurance-support organization that is required to issue a notification pursuant to this section shall simultaneously submit an electronic copy of the notification and a statement providing the date and method of distribution of the notification to the commissioner, excluding any information that personally identifies any individual who is entitled to receive notification. If a notification is made to more than one individual, a single copy of the notification must be submitted that indicates the number of individuals in the state who received notification.

• SB 0306 Generally revise laws on notarial acts. (This Act updates and revises the notarial laws providing for reciprocity with notarial acts in other jurisdictions and allowing for attestations of electronic records.  Significant changes were made to bring this section of the law current with business practices. There is not room here to note all the changes. You are encouraged to review the Act in its entirety.)

1-5-602. Definitions

(2) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. 

(3) "Electronic signature" means an electronic symbol, sound, or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record.

(5) "Notarial act" means an act, whether performed with respect to a tangible or electronic record, that a notarial officer may perform under the law of this state. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification upon an oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy, certifying or attesting a transcript of an affidavit or deposition, and noting a protest of a negotiable instrument.

(11) "Sign" means, with present intent to authenticate or adopt a record: (a) to execute or adopt a tangible symbol; or (b) to attach to or logically associate with the record an electronic tangible symbol; or (b) to attach to or logically associate with the record an electronic symbol, sound, or process. 

(12) "Signature" means a tangible symbol or an electronic signature that evidences the signing of a record. 

(13) "Stamping device" means: (a) a physical device capable of affixing to or embossing on a tangible record an official stamp; or (b) an electronic device or process capable of attaching to or logically associating an official stamp with an electronic record. The notarial official stamp, whether applied to the record physically or electronically, is considered to be a seal for the purposes of admitting a document in court. 

(14) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. 

(15) "Verification on oath or affirmation" means a declaration, made by an individual on oath or affirmation before a notarial officer, that a statement in a record is true."

1-5-603. Requirements for certain notarial acts -- personal appearance -- identification methods. 

(1) A notarial officer who takes an acknowledgment of a record shall determine, either from personal knowledge or satisfactory evidence, the identity of the individual, that the individual appearing before the notarial officer and making the acknowledgment has the identity claimed and that the signature on the statement verified is the signature of the individual.

(7) (a) If a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear physically before the notarial officer or by real-time, two-way video and audio communication technology as authorized in [section 12] and [section 25]. 

(b) Except as provided in subsection (7)(c), subsection (7)(a) modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001, et seq. 

(c) Subsection (7)(a) does not modify, limit, or supersede 15 U.S.C. 7001(c) or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b). 

(8) A notarial officer has personal knowledge of the identity of an individual appearing before the notarial officer if the individual is personally known to the notarial officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed. 

(9) A notarial officer has satisfactory evidence of the identity of an individual appearing before the notarial officer if the notarial officer can identify the individual: 

(a) by means of: 

(i) a passport, driver's license, or government-issued nondriver identification card, which may be current or expired, and if expired may not be expired for more than 3 years before the performance of the notarial act; or 

(ii) another form of government identification issued to an individual, which: 

(A) may be current or expired, and if expired may not be expired for more than 3 years before performance of the notarial act; 

(B) must contain the signature or a photograph of the individual; and (C) must be satisfactory to the notarial officer; or 

(b) by verification on the oath or affirmation of a credible witness personally appearing before the notarial officer and known to the notarial officer; or 

(c) whom the notarial officer can identify on the basis of a passport, driver's license, or government-issued nondriver identification card, which is current or expired, and if expired may not be expired for more than 3 years before the performance of the notarial act. 

(10) A notarial officer may require an individual to provide additional information or identification credentials necessary to assure the notarial officer of the identity of the individual.

1-5-605. Notarial act in another state -- reciprocity -- notary public authority. 

(1) A notarial act performed in another state has the same effect under the law of this state as if the notarial act were performed by a notarial officer, of this state if the notarial act performed in the other state is performed by: 

(a) a notary public of that state; 

(b) a judge, clerk, or deputy clerk of a court of that state; or 

(c) any other individual authorized by the law of that state to perform the notarial act. 

(2) The signature and title of an individual performing a notarial act in another state are prima facie evidence that the signature is genuine and that the individual holds the designated title. 

(3) The signature and title of a notarial officer described in subsection (1) conclusively establish the authority of the officer to perform the notarial act. 

(4) A commission to act as a notary public authorizes the notary public, as provided in [section 16], to perform notarial acts in any county in the state or in any bordering state if the border state recognizes the notary's authority within that state. The commission does not provide the notary public any immunity or benefit conferred by the laws of this state on public officials or employees.

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