LEGISLATIVE ALERTS

The 2012 Legislative session has come and gone and thankfully, the public will continue to enjoy a level of professionalism that only qualified and commissioned notary publics can provide.

There were several changes to the law made this session, as detailed in the bills listed below.  All have been signed by the Governor and became law with the exception of HB-1192 which is awaiting signature and expected to be signed into law shortly.  If it is not vetoed, then it will automatically become law.

NEW LAWS:

HB-1192 Compromise Bill between the Notaries and Bankers
Allows Notary candidate who has passed two of the three sections of the exam to be provisionally appointed in a parish with less than 40,000 population provided that he works as a notary on behalf of an employer who supervises him.  The provisional notary may not draft wills, trusts or prepare any instrument that transfers immovable property.  Employer is liable for actions.  Certain other requirements explained in the act.  These provisions expire on August 1, 2016 whereas the provisional notary will no longer be a notary unless they have completed the remainder of the exam.

 

HB-361 Provides Notary with the right to act in an adjacent parish provided that the parish has a population of less than 40,0000 .
 
HB-439 Repeals the provision that allows a designation in a will of an attorney to handle the estate. 
 
HB-470 Provides for the correction of documents.  In the event the original notary is not available, then any Louisiana Notary who has possession of the document may mane a correction to the document. This act must be by authentic act; before another Notary and two witnesses.
 
HB-929 Puts Teeth in the Notary Law
A notary commission can be revoked by any act of Dishonesty, fraud, deceit or misrepresentation...or by a felony conviction, gross misconduct, or in certifying something as true that the notary knew to be untrue.    Requires a hearing in court as a rule to show cause why commission should not be revoked.  Provides that persons shall not have been convicted of a felony in order to obtain a commission.  Must have graduated High School or earned a GED in order to participate in the exam.  Raises the annual fee from $10.00 to $25.00 and requires that all instructors be statewide commissioned notaries beginning Feb 28, 2015.  Additional requirements for education providers explained in the bill.

 

 

Interesting reading:

Alan Jennings provided us this commentary (April 10, 2012) that you should consider:

LEGISLATIVE UPDATE from Louisiana Notary -- The Notary's Newsletter

Secretary of state resists Louisiana bankers push to dumb-down notary exam and create second-class notary

Secretary of State Tom Schedler has taken a firm stand opposing the Louisiana Bankers Association's legislative package designed to solve the problems small-town bank s have in getting their employees commissioned as notaries. He is instead offering a more constructive solution by using amendments to HB922 to provide some relief to bankers and businesses in rural parishes where access to notary training is poor at best, and to give the 2011 legislative-study proposals time to develop. HB922 was reported out of committee today by substitute -- the House Committee on Civil Law and Procedure approved the amendments proposed by the secretary of state. A new bill number will be available later today.

The bankers' proposals (SB259 and HB928 ) sought to remove performance-assessment requirements from the state notary exam and to prohibit notaries from receiving notarial testaments and preparing notarial acts involving the conveyance of immovable property.

The bankers' proposal, which remains a threat if the legislature balks at the secretary's plan, would create a second-class, limited-authority notary from August 1 forward, would require the governor to commission all who passed the multiple-choice and research portions of the exam since 2009, and would require the secretary of state to stop using performance assessments in examining future applicants as to competence to prepare notarial instruments.

The secretary has informed the bankers and legislators that he is quite confident in the validity of the exam, developed by LSU, and that it is not in the interest of the people of Louisiana for the legislature to yield to political pressure to "dumb down" the exam. He has made it clear he will oppose any second-class notary official with limited powers, as that would compromise the reliability of any notarial instru­ments made in this state.

Schedler instead has asked bankers and notary association leadership to support a temporary provisional commissioning program for the less-populated parishes as a better approach to the bankers' alleged problem while his office moves to improve the notary-education offerings available to qualified applicants. (Watch for amendments to HB922 coming to the Committee on Civil Law and Procedure on Tuesday April 10.)

According to the HCR45 notary study committee re port  released in January, the motivated and educated people who are having trouble passing the exam in the northern part of the state are no more than half as likely to pass the exam as those in the southern part of the state. The report demonstrates that persons in that area of the state who have a college education and otherwise appear to fit the profile of the successful examinee from south Louisiana are unable to obtain the skills training they need to pass the exam.

The problem has hit hard in the northeast part of the state, where small-town bankers want to designate their employees as notaries so they can provide notary services to their customers and prospective customers. Under the new statewide standard, these bankers are no longer able to designate who in their employ should be notaries, send them to the courthouse for a letter from a judge, and obtain a commission. Until 2005, all you needed was a boss with connections at the courthouse. It's a new world for the banks in those parishes, and they don't like it.

The bankers have brought intense pressure to bear on their legislator allies this session to offer legislation to dumb down the notary exam and limit the access of citizens of their community to obtain certain notarial services only from lawyers. The bankers' self-serving proposals were quickly identified as unsatisfactory by the informed legal community, prompting the secretary of state to step in and ask for time to develop solutions proposed by the legislative study that concluded its work and reported to the legislature this January.

Secretary of State Schedler opposed efforts to change the office of notary and to change the exam to allow persons who could not meet minimum-competence standards. His survey of notaries in late 2011 indicated that the banks should not be allowed to designate and appoint their own notaries.

Schedler's office this week reported that the bankers have agreed to hold their bills and go along with the secretary's plan.

Now is the time to get accurate information to the legislators.
Louisiana legislators—many of whom have been convinced by Louisiana bankers that we should change the Louisiana notary to a common-law notary—would be better equipped to make a decision in the interest of the citizens of this state if they would better inform themselves of the reasons the notary in Louisiana is not merely an affidavit clerk like we find in the other 49 states.

Most of the legislators who supported the bankers' bills were acting in good faith, but they had inaccurate information given to them about the exam's pass-rate. Some of the legislators, however, have funda­mentally flawed concepts about the role of the notary in Louisiana, and would rather see local lawyers get fees for notary work, even when the constituent does not need legal advice.

But more than just being disabused of their notion that notaries in this state should be no longer allowed to do anything more than witness signatures, legislators need to understand the reasons we have a special notary in Louisiana.

If the legislators can be enlightened, we can avoid these every-time-the-legislature's-membership-changes attempts to limit notarial services and change our notaries' role into one like that found in common-law states. Taking the path they advocates would simply force Louisiana citizens to pay lawyers to put their transactions into proper notarial form instead of allowing them to avail themselves of the services of notaries, whose job it is to do just that– put constituents notarial transactions in proper form.

The Louisiana Notary
When co-author of Fundamentals of Louisiana Notarial Law and Practice (the official study guide for the state notary exam, developed by LSU and published by the secretary of state) read the bankers' bills, he sent me the following, which I hope you and any legislator that reads it will find informative and helpful in understanding why the bankers bills need to be killed.

When Napoleon instituted the Civil Code in France (which of course was the model for our civil code although Louisiana law originally codified Spanish civil law in force in Louisiana at the time), the purpose was to do away with the legal gloss and complicated bureaucratic procedures the "average" man faced in France at the time.  It was nearly impossible to understand the law because of all the non-legislative sources of authority that had been grafted on to it.  The common law of our sister states adheres to the principle that "every man is charged with knowing the law"; yet it is impossible to know the law in a state where crimes are defined by court decisions and statutes are set aside or limited as being in derogation of the judge made common law. 

The declared purpose of the Civil Code was so that "every man" should be able to pick up the Code and know exactly what the law is without the need to know or understand all the legal gloss placed on it by the courts or the bureaucrats.   The notary was integral to this fundamental principle of French law.  It was a simplification of the process; a better way if you will--different from our common law brothers.  In Britain, you have not one lawyer, but two:   the barrister who litigates, and the attorney that facilitates transactions both commercial and private. In the United States that distinction is lost, but in Louisiana it continues on in the form of the civil law notary.

The notary public is not intended to be a lawyer, but to be able to do the most basic things that an "attorney" is required for in common law jurisdictions.   They are responsible for putting into form and meeting the requirements of the law for those transactions the "average man" will need--basic acts such as receiving a will, selling or mortgaging real estate, taking oaths and affirmations.   What the bankers' proposed bill suggests is to destroy that basic principle underlying Louisiana's civil law.   Their bills, if enacted will take away from the public the ability to control his own business and to settle his affairs without the need to resort to an attorney where he understands our law and knows what he wants but not how to put it in proper form.   While the attorney in Louisiana clearly holds a sacred role, its role was intended to be one where the "average man" finds himself outside the ordinary, involved in more than just ordinary day to day issues.

As we hearken back to the days of our early days as a colony, it was lawyers who were few in number and notaries that were more common.   Here the proponents of this legislation turns this principle on its head claiming that now lawyers are more common and notaries not as much.  Notaries, they argue, should not be doing wills and real estate transfers.  They are "too complicated" they say.  Why shouldn't they be doing them?  They have been doing so in Louisiana since the days of the first French and Spanish settlers. Their acts are in fact the foundation of modern titles whether passing by testament or by sale.

The bankers come now before the legislature and say that the need for notaries in some parishes is dire, and assail the state notary exam as the problem. Is the problem the test?  Or is it in fact is a combination of under-prepared qualified test takers and the limited availability and accessibility of valid education programs for the persons seeking to be appointed?

The bankers propose to strip away the powers of the civil law notary, to dumb them down, discount them if you will.   They say there is a need to be able to provide these services at their branches as part of a marketing plan designed to turn local banks into MASS MARKET* super-stores of banking.   However, we have seen what happens when the MASS MARKET* approach is taken to any business:   quality suffers, choices are reduced, cheap imports stand instead of quality.  In these days of dark economic times, do we really want to tell the "average man" that he stands alone now? Do you want to tell him we will give you your affidavits for free but require you to pay as much as 10 times more for a basic will? Is this what we want for our state--to create a greater need for lawyers?  I think what the citizens want is a strong well educated well qualified civil law notary capable of fulfilling their historical role; a role hand in hand with the average man, not a cheap knock off made in China.   (* The original text names a low cost, mass market retailer whose name has been deleted from our web posting of this article.)

Richard Bullock, by the way, was commissioned as a notary before he became a licensed attorney. His perspective is spot-on.

Legislators need better (and accurate) information
Hopefully, Richard's words will give the legislators a start at understanding why we have, for 350 years, always entrusted our notaries with high and important functions. Legislators could also do their consti­tuents a favor by reading the first three chapters of the notary study guide, and even its chapters on conveyance and mortgage of immovable property and on testaments.

If our legislators (and bankers) would educate themselves on this issue, and consider that the performance-evaluation component of the state notary exam is an open-book exam, they may think twice about why the pass-rate is lower than they'd like.

By the way, the actual exam pass rate is 17 percent. One of every six persons who have taken the exam has passed it. Not 2%, 5%, or 8%, as has been represented to the legislators. Giving legislators this kind of misleading information is shameful, and the people of this state are all victimized when legislators buy into it. Pass rate is a function of how many people take the exam. Under the current system, anybody with a pulse and a Louisiana voter registration card can pay $75 and take the notary exam. There are no academic qualifications whatsoever. Success on the exam, however requires mature critical thinking skills, and an ability to read and write at least at the level of a college graduate.

Legislators might be wise to ask what would be the pass rate for any professional exam if two-thirds of those taking the test had no formal education in preparation for the exam, nor even a requirement to be able to read and write at a college level.
I invite them to ask themselves this question: If any resident of this state age 18 or over could sit for the Louisiana state bar exam as often as they could pay the fee for the exam, what would its pass-rate be? But, when the exam identifies the applicant with the necessary competencies, who cares what the pass rate is, anyway?

If legislators think their constituents will be better off if they take the bankers' approach to the notary exam, then how much better off we would all be to open up some other fields to untrained uneducated masses! Why not make it easier for people to become lawyers, accountants, doctors, pharmacists, by letting them take a multiple-choice exam and have no requirement that they have any more than a high-school education? Fact is, right now, better education is available to those desiring to be a florist in this state than for those who want to sit for the notary exam.

Let's not lose sight of the goal: competent Louisiana notaries to serve Louisiana citizens.

The wrong approach: A second-class notary commission for any entry-level employee to act as a signature witness.
In 2004, the legislature decided to protect the citizens of all Louisiana parishes and require notaries in all parishes to meet a statewide competency standard before being appointed as a Louisiana notary.

The northern parishes, especially the rural parishes, had a system before the state exam standard was established. Their system defined "qualified applicant" to mean those they designate to take the exam; Their logic is now that if their employee cannot pass the notary exam, the exam must be the problem.

This condition exists primarily in low-population parishes, where notary applicants have been unsuccessful in getting the training they need to have a chance at passing the state notary exam. A close look at the situation brought to my attention two or three small-town banks looking to add branches in the northeastern parishes, who would be the main beneficiaries of the bankers' bills.

When the 2011 legislative study concluded, the committee didn't agree that the exam should be dumbed down, but instead insisted that the prospective notaries get better education.  The bankers were not satisfied with that idea, and instead pressured legislators to introduce bills to undo the reforms of 2004 and convert a centuries-old system to serve their own interests.

The information that convinced the legislators was simply incorrect, but it induced the legislators to file their bills. The bad information was furnished knowingly, and its goal was apparently to enable banks to get their employees commissioned as notaries without their having demonstrating the minimum acceptable competencies required of a Louisiana notary.

The proponents of the banker bills secured the support of legislators who have limited knowledge of the traditional role of the Louisiana notary, and who have made clear their contempt for the regularly commissioned notary, saying that notaries have no business doing what they are currently authorized to do. Things notaries have done since before lawyers even existed in this state.

In the House committee hearings for HB929 (that's the secretary of state's bill to improve the education programs), some legislators on the House Committee on Civil Law and Procedure made it clear they have bought the bankers' line. Their words indicate that they have no respect for the role of notaries in this state, that the office needs to be conformed to the office in the other 49 states, and that notaries should be prohibited from preparing certain notarial instruments! You can view the March 19th hearing online at http://house.louisiana.gov/H_Video/WM/2012/Mar_2012/0319_12_CL.asx Listening to some of those fellows, one can almost hear the same logic that in the not too distant past held that African Americans had no business knowing how to read and write.

The sad part is that the bankers really didn't need to do this. The bankers instead simply need to qualify and educate their employees, or hire qualified competent notaries to serve their customers. LSU offered to help them develop a first-class education program five years ago. The bankers balked. They wanted to "webinar" train their employees. The LBA  finally found a Texas notary online course and used it as their pre-exam offering to their member-bank employees. Here they are, five years later with nothing to show for it but a lot of people who still haven't passed the state notary exam.

Legislators should ask themselves whether they really want to help foster a system that enabled the banks in this country to visit fraud on their customers by their willingness to look the other way while using signature-only notaries who notarize anything they are told to notarize. By taking the bankers' bills approach, the legislature would be opening the door for a Louisiana version of the national foreclosure-fraud debacle. Remember this: Banks are all about collateral. If they own the notary, they own their customers. Think about the number of foreclosures that were filed nationally by banks who counted on fraudulent "notarize this" paperwork processed by common-law notaries contracted to banks.

As of this writing, the bankers' bills (SB259 and HB928) have not been withdrawn, but the bankers have agreed to let the secretary of state's plan go forward. Nevertheless, readers should be mindful that the bankers' bills continue being held at the ready, held over the head of the secretary as a means of saying, "Make us happy, or we will do anything we can destroy the office of notary as it currently exists in this state in order to serve our purposes." One look at the national foreclosure-fraud debacle is all it takes to understand the purposes their legislation will serve.

The right solution: Improved access to effective notary training
The secretary of state has listened to the recommendations of the 2011 notary study committee and proposes to improve the education available to properly qualified applicants. His bill is HB929 and it offers what promises to be the best option for the people of Louisiana, including the people who would appear before notaries in banks. Today, he asked for and received committee approval for amendments to companion bills, HB922 and HB361 to hopefully make the bankers' bills go away and let the education plan come about. The plan calls for a four-year period to allow certain provisional notaries to be commissioned for a short time in underserved parishes until the education programs can properly staff the needs in those parishes.

Secretary of State Tom Schedler stands by the state notary exam, and offers HB929, HB922 (look for substitute bill number later) and HB361  as the means to improve the pool of qualified applicants. He has obtained the bankers' word that they will not move SB259 or HB928, both of which propose to fundamentally change the office of notary in this state by legislating away a valid notary exam and creating a second-class notary to replace the notary we have today, and which have some support from some legislators who probably just don't know any better.

Permission granted to circulate this publication.
Louisiana notaries can get added to my legislative alert list by sending e-mail to
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--
Alan Jennings
Louisiana Notary
LEGISLATIVE UPDATE
April 10, 2012
Copyright (c) 2012
C. Alan Jennings

 



IF YOU ARE A COMMISSIONED NOTARY AND NOT A MEMBER OF AN ASSOCIATION, WE STRONGLY URGE YOU TO RECONSIDER YOUR DECISION TO NOT BE INVOLVED IN THE PROCESS.  CHANGES ARE TAKING PLACE, RIGHT BEFORE YOUR EYES!
 



LAST YEARS CONCERNS:
When a member of the general public asks a NOTARY PUBLIC to witness a document, they expect that the person that is assisting them to have been trained and competent in all areas of the duties of being a Notary Public.  To become a Notary Public, one has to pass a difficult exam where often less than 10% pass on their first attempt and it requires a great deal of study to succeed.  Louisiana is unique in that a Civil Law Notary has broad powers that are  normally reserved for attorneys in other states.   When you approach a Notary Public in Louisiana, you know that they have achieved a level of competency that other states don't require.

House Bill 257 was introduced into the Legislature in 2011 to provide for Bankers to have the ability to appoint notaries who have not been through the regular process of becoming a notary. 

That bill was withdrawn after much discussion and an agreement was reached whereas the Notary Study committee would work with reviewing the appropriate studies.

UPDATE 8-10-2011
HCR 45 NOTARY PUBLIC STUDY COMMITTEE

The Notary Public study committee met on August 3, 2011 to begin discussions on improving the profession in light of the concerns raised in the House Bill 257.  Agenda items included a discussion on the purpose of the committee, Notary Exam History, Presentation of Comparison of Notarial Authority of Louisiana Civil Law Notaries and Common Law Notaries and the creation of sub-committees to address (1) Standardizing the Test and Study Courses and (2) Continuing Education Requirements in the future.   In the future, we will provide a more detailed review of the progress of this Committee so that you can voice your opinion.

SECRETARY OF STATE WHAT'S NEW PAGE
http://www.sos.la.gov/Pages/default.aspx
 

 

 




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