Montana Code 1-5-603. Requirements for certain notarial acts — personal and remote appearance — identification methods
1-5-603. Requirements for certain notarial acts — personal and remote appearance — identification methods. (1) A notarial officer who takes an acknowledgment of a record shall determine, from personal knowledge or satisfactory evidence of 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 record is the signature of the individual and was made knowingly and willingly for the purposes intended.
Terms Used In Montana Code 1-5-603
- Acknowledgment: means a declaration by an individual appearing before a notarial officer that the individual has willingly signed a record for the purposes stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed the record as the act of the individual or entity identified in the record. See Montana Code 1-5-602
- Appearing before: means :
(a)being in the same physical location as another person and close enough to see, hear, communicate with, and exchange identification credentials with that individual; or
(b)interacting with another individual by means of communication technology in compliance with this part. See Montana Code 1-5-602
- Communication technology: means a real-time, two-way audiovisual electronic device or process that:
(a)allows a notarial officer located in this state and a remotely located individual to communicate with each other simultaneously by sight and sound;
(b)facilitates communication with a remotely located individual with a vision, hearing, or speech impairment when necessary under and consistent with applicable law; and
(c)complies with this part and implementing rules. See Montana Code 1-5-602
- Credential analysis: means a process or service operating according to criteria approved by the secretary of state through which a third person affirms the validity of a government-issued identification credential through review of public and proprietary data sources. See Montana Code 1-5-602
- Deposition: means a written declaration under oath or affirmation, made upon notice to the adverse party for the purpose of enabling the adverse party to attend and cross-examine. See Montana Code 1-1-202
- Deposition: An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial.
- Dynamic knowledge-based authentication assessment: means an identity assessment that is based on a set of questions formulated from public or private data sources that does not contain a question for which the principal provided a prior answer to the entity doing the assessment. See Montana Code 1-5-602
- Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. See Montana Code 1-5-602
- Electronic notarization system: means a set of applications, programs, hardware, software, or technologies designed to enable a notary public to perform electronic notarizations that renders every electronic notarial act tamper-evident through the use of a security procedure and that meets the requirements of this part and implementing rules. See Montana Code 1-5-602
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Identification credential: means a government-issued record evidencing an individual's identity. See Montana Code 1-5-602
- Identity proofing: means a process or service by which a third person provides a notarial officer with a means to verify the identity of a principal by:
(a)a review of personal information from public or proprietary data sources; or
(b)biometric data including but not limited to facial recognition, voice analysis, or fingerprint analysis. See Montana Code 1-5-602
- In a representative capacity: means acting as:
(a)an authorized officer, agent, partner, trustee, or other representative for a person other than an individual;
(b)a public officer, personal representative, guardian, or other representative, in the capacity stated in a record;
(c)an agent or attorney-in-fact for a principal; or
(d)an authorized representative of another in any other capacity. See Montana Code 1-5-602
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Knowingly: means only a knowledge that the facts exist which bring the act or omission within the provisions of this code. See Montana Code 1-1-204
- 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. See Montana Code 1-5-602
- Notarial officer: means a notary public or other individual authorized to perform notarial acts. See Montana Code 1-5-602
- notary: means an individual commissioned to perform a notarial act by the secretary of state. See Montana Code 1-5-602
- Oath: A promise to tell the truth.
- Oath: includes an affirmation or declaration. See Montana Code 1-1-201
- Oath or affirmation: means a solemn verbal promise by which a person knowingly and willingly attests to the truthfulness of a statement and that is administered by a notarial officer. See Montana Code 1-5-602
- Official record: means a record or copy of a record attested by the officer or the officer's deputy with legal custody of the record that is accompanied by a certificate that the officer has custody of the record. See Montana Code 1-5-602
- Person: means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. See Montana Code 1-5-602
- Principal: means :
(a)an individual whose signature is notarized; or
(b)an individual taking an oath or affirmation from the notary public but not in the capacity of a credible or other witness for the notarial act. See Montana Code 1-5-602
- Public key certificate: means an electronic credential that is used to identify an individual who signed an electronic record with the credential and is issued and managed by a third-party provider utilizing public key infrastructure technology. See Montana Code 1-5-602
- Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. See Montana Code 1-5-602
- Remote notarization: means a notarial act performed by means of communication technology on a tangible record that meets the standards adopted under this part. See Montana Code 1-5-602
- Remote online notarization: means a notarial act or notarization performed by means of communication technology and an electronic notarization system on an electronic record that meets the standards adopted under this part. See Montana Code 1-5-602
- Remote presentation: means transmission to the notarial officer through communication technology of an image of a government-issued identification credential that is of sufficient quality to enable the notarial officer to:
(a)identify the individual seeking the notarial officer's services; and
(b)visually review the identity credential and its data; and
(c)perform credential analysis. See Montana Code 1-5-602
- Signature: means a tangible symbol or an electronic signature that evidences the signing of a record. See Montana Code 1-5-602
- 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. See Montana Code 1-5-602
- Transcript: A written, word-for-word record of what was said, either in a proceeding such as a trial or during some other conversation, as in a transcript of a hearing or oral deposition.
- United States: includes the District of Columbia and the territories. See Montana Code 1-1-201
- Venue: The geographical location in which a case is tried.
(2)A notarial officer who takes a verification on oath or affirmation of a statement shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the notarial officer, signing the record, and making the verification has the identity claimed and that the signature on the statement verified is the signature of the individual and was made knowingly and willingly for the purposes intended.
(3)A notarial officer who witnesses or attests to a signature shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the notarial officer and signing the record has the identity claimed and has executed the record knowingly and willingly for the purposes intended.
(4)(a) A notarial officer who takes an acknowledgment or witnesses a signature of an individual who signs a record in a representative capacity shall determine:
(i)from personal knowledge or satisfactory evidence of the identity of the individual that the individual appearing before the notarial officer has the identity claimed; and
(ii)from the record, personal knowledge, or presentment of an official record that the individual holds the title or capacity claimed and has knowingly and willingly signed the record in that capacity for the purposes intended.
(b)The notarial officer may refuse to perform the notarial act if the notarial officer is not satisfied that the official record or the presented record evidences the individual’s capacity to act as the principal‘s representative on the record presented for notarization.
(5)A notarial officer who certifies or attests a copy of a record or an item that was copied shall determine that the copy is a full, true, and accurate transcription or reproduction of the original or official record or the item. A notarial officer may certify that a tangible copy of an electronic record is an accurate copy of the electronic record. A county clerk shall accept for recording a tangible copy of an electronic record containing an original notarial certificate as satisfying any requirement that a record be an original.
(6)A notarial officer who makes or notes a protest of a negotiable instrument shall determine the matters set forth in 30-3-510(2).
(7)A notarial officer who administers an oath or affirmation shall determine from personal knowledge or satisfactory evidence of the identity of the individual that the person appearing before the notarial officer and taking the oath or affirmation has the identity claimed and is knowingly and willingly making the statement with the intent to be bound by the statement.
(8)A notarial officer who administers an oath in conjunction with taking a deposition and certifies or attests to the transcript of the deposition shall certify to the matters set forth by this part, other laws, or the court of jurisdiction.
(9)(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 communication technology as authorized in 1-5-615 and rules adopted pursuant to 1-5-628.
(b)Except as provided in subsection (9)(c), subsection (9)(a) modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001, et seq.
(c)Subsection (9)(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).
(10)(a) Subject to subsection (10)(b), a notarial officer may perform a remote notarization or remote online notarization for a principal who is located:
(i)in this state;
(ii)outside of this state but within the United States; or
(iii)outside the United States if:
(A)the act is not known by the notarial officer to be prohibited in the jurisdiction in which the principal is physically located at the time of the act; and
(B)the record is part of or pertains to:
(I)a matter that is to be filed with or is before a public official or court, governmental entity, or other entity located in the territorial jurisdiction of the United States;
(II)property located in the territorial jurisdiction of the United States; or
(III)a transaction substantially connected with the United States.
(b)A notarial officer may perform a remote notarization or remote online notarization only if the notarial officer:
(i)is physically located in this state at the time the notarial act is performed;
(ii)identifies the principal through personal knowledge or satisfactory evidence;
(iii)executes the notarial act in a single recorded session that complies with this part;
(iv)is satisfied that any record that is signed, acknowledged, or otherwise presented for notarization by the principal is the same record remotely notarized by the notarial officer;
(v)is satisfied that the quality of the communication technology is sufficient to make the determinations required for the notarial act under this part and any other applicable law of this state;
(vi)identifies the venue as described in 1-5-629; and
(vii)is capable of meeting the requirements of 1-5-618.
(c)A notarial officer who performs a remote notarization or remote online notarization shall take reasonable steps to ensure that:
(i)the notarial officer, the principal, and any required witness are accessing the communication technology or the electronic notarization system, or both, through an authentication procedure that is reasonably secure from unauthorized access;
(ii)the principal and any required witness are viewing the same record; and
(iii)all signatures, changes, and attachments to the record are made in real time.
(d)A notarial act performed by means of communication technology is considered to have been performed in Montana and is governed by Montana law regardless of the physical location of the principal at the time of the notarization.
(11)(a) A notarial officer who certifies a fact may review a public or private record to ascertain or verify that specific data is contained or shown on the record or memorialized in a publication that the notary believes to be reliable.
(b)A notarial officer who certifies that an individual is alive shall verify from personal knowledge or satisfactory evidence that the individual appearing before the notarial officer is alive at the time of certification.
(c)A notarial officer who certifies a photograph shall verify from personal knowledge or satisfactory evidence that the photograph is an accurate representation of the individual or item represented.
(12)(a) 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.
(b)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:
(i)by means of:
(A)a passport, driver’s license, or government-issued nondriver identification credential, 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
(B)another form of government identification issued to an individual, which:
(I)may be current or expired, and if expired may not be expired for more than 3 years before the performance of the notarial act;
(II)must contain the signature or a photograph of the individual; and
(III)must be satisfactory to the notarial officer; or
(ii)by oath or affirmation of a credible witness:
(A)physically present before the notarial officer and known to the notarial officer or whom the notarial officer can identify on the basis of a passport, driver’s license, or government-issued nondriver identification record, which is current or expired, and if expired may not be expired for more than 3 years before the performance of the notarial act; or
(B)appearing by means of communication technology and identified by the notarial officer as provided in subsection (12)(c).
(c)If a principal or witness is appearing by means of communication technology, a notarial officer has satisfactory evidence of the identity of the individual if the notarial officer can identify the individual by two or more different types of technologies, processes, or services approved by the secretary of state, such as dynamic knowledge-based authentication assessment, valid public key certificate, identity proofing, remote presentation and credential analysis, or any other means prescribed in rule by the secretary of state.
(13)A notarial officer may use one or more approved identification technologies described in subsection (12)(c) for an individual who is physically in the presence of the notarial officer as satisfactory evidence of identity.
(14)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.