The Illinois Notaries Public Act governs notaries public in Illinois. Pursuant to 5 ILCS 312/2-101, the Secretary of State may appoint and commission as notaries public for a 4-year term as many persons resident in a county in Illinois as s/he deems necessary. The Secretary of State may appoint and commission as notaries public for a one-year term as many persons who are residents of a state bordering Illinois whose place of work or business is within a county in Illinois as the Secretary deems necessary, but only if the laws of that state authorize residents of Illinois to be appointed and commissioned as notaries public in that state.
Pursuant to 5 ILCS 312/2-102, every applicant for appointment and commission as a notary must complete an application form furnished by the Secretary of State to be filed with the Secretary of State, stating:
- the applicant’s official name, which contains his or her last name and at least the initial of the first name;
- the county in which the applicant resides or, if the applicant is a resident of a state bordering Illinois, the county in Illinois in which that person’s principal place of work or principal place of business is located;
- the applicant’s residence address and business address, if any, or any address at which an applicant will use a notary public commission to receive fees;
- that the applicant has resided in the State of Illinois for 30 days preceding the application or that the applicant who is a resident of a state bordering Illinois has worked or maintained a business in Illinois for 30 days preceding the application;
- that the applicant is a citizen of the United States or an alien lawfully admitted for permanent residence in the United States;
- that the applicant is at least 18 years of age;
- tha the applicant is able to read and write the English language;
- that the applicant has never been the holder of a notary public appointment that was revoked or suspended during the past 10 years;
- that the applicant has not been convicted of a felony; and
- any other information the Secretary of State deems necessary.
ILCS 312/2-104 provides that every applicant for appointment and commission as a notary public must take an oath in the presence of a person qualified to administer an oath in Illinois. Every application for appointment and commission as a notary public must be accompanied by an executed bond commencing on the date of the appointment with a term of 4 years, in the sum of $ 5,000, with, as surety thereon, a company qualified to write surety bonds in Illinois[i]. The bond must be conditioned upon the faithful performance of all notarial acts in accordance with the Act. The Secretary of State may prescribe an official bond form.
Pursuant to 5 ILCS 312/2-106, the appointment of the applicant as a notary public is complete when the commission is recorded with the county clerk. The Secretary of State must forward the applicant’s commission to the county clerk of the county in which the applicant resides or, if the applicant is a resident of a state bordering Illinois, the county in Illinois in which the applicant’s principal place of work or principal place of business is located. Upon receipt thereof, the county clerk must notify the applicant of the action taken by the Secretary of State, and the applicant must either appear at the county clerk’s office to record the same and receive the commission or request by mail to have the commission sent to the applicant with a specimen signature of the applicant attached to the request. The applicant must have a record of the appointment, and the time when the commission will expire, entered in the records of the office of the county clerk. When the applicant appears before the county clerk, the applicant must pay a fee of $ 5, at which time the county clerk delivers the commission to the applicant. If an applicant does not respond to the notification by the county clerk within 30 days, the county clerk again notifies the applicant that the county clerk has received the applicant’s notary public commission issued by the Secretary of State. The Secretary of State cancels the appointment of all notaries whose commissions are returned to his or her office by the county clerks. No application fee will be refunded and no bonding company is required to issue a refund when an appointment is cancelled.
5 ILCS 312/3-101 provides that each notary public must, upon receiving the commission from the county clerk, obtain an official rubber stamp seal with which the notary must authenticates his or her official acts. The rubber stamp seal must contain the following information:
- the words “Official Seal”;
- the notary’s official name;
- the words “Notary Public”, “State of Illinois”, and “My commission expires (commission expiration date)”; and
- a serrated or milled edge border in a rectangular form not more than one inch in height by two and one-half inches in length surrounding the information.
At the time of the notarial act, a notary public must officially sign every notary certificate and affix the rubber stamp seal clearly and legibly using black ink, so that it is capable of photographic reproduction. The illegibility of any of the information does not affect the validity of a transaction.
This subsection does not apply on or after July 1, 2013[ii].
Pursuant to 5 ILCS 312/3-102, a notary appointed and commissioned as a notary in Illinois must, create a Notarial Record of each notarial act performed in connection with a Document of Conveyance. The Notarial Record must contain:
- The date of the notarial act;
- The type, title, or a description of the Document of Conveyance being notarized, and the property index number (“PIN”) used to identify the Residential Real Property for assessment or taxation purposes and the common street address for the Residential Real Property that is the subject of the Document of Conveyance;
- The signature, printed name, and residence street address of each person whose signature is the subject of the notarial act and a certification by the person that the property is Residential Real Property, which states “the undersigned grantor hereby certifies that the real property identified in this Notarial Record is Residential Real Property as defined in the Illinois Notary Public Act [5 ILCS 312/1-101 et seq.]”.
- A description of the satisfactory evidence reviewed by the notary to determine the identity of the person whose signature is the subject of the notarial act;
- The date of notarization, the fee charged for the notarial act, the Notary’s home or business phone number, the Notary’s residence street address, the Notary’s commission expiration date, the correct legal name of the Notary’s employer or principal, and the business street address of the Notary’s employer or principal; and
- The notary public must require the person signing the Document of Conveyance (including an agent acting on behalf of a principal under a duly executed power of attorney), whose signature is the subject of the notarial act, to place his or her right thumbprint on the Notarial Record. If the party signing the document is physically unable to provide a thumbprint or fingerprint, the notary must so indicate on the Notarial Record and must also provide an explanation of that physical condition. The notary may obtain the thumbprint by any means that reliably captures the image of the finger in a physical or electronic medium.
- If a notarial act is performed by a notary who is a principal, employee, or agent of a Title Insurance Company, Title Insurance Agent, Financial Institution, or attorney at law, the notary must deliver the original Notarial Record to the notary’s employer or principal within 14 days after the performance of the notarial act for retention for a period of 7 years as part of the employer’s or principal’s business records. In the event of a sale or merger of any of the foregoing entities or persons, the successor or assignee of the entity or person must assume the responsibility to maintain the Notarial Record for the balance of the 7-year business records retention period. Liquidation or other cessation of activities in the ordinary course of business by any of the foregoing entities or persons relieves the entity or person from the obligation to maintain Notarial Records after delivery of Notarial Records to the Recorder of Deeds of Cook County, Illinois.
- If a notarial act is performed by a notary who is not a principal, employee, or agent of a Title Insurance Company, Title Insurance Agent, Financial Institution, or attorney at law, the notary must deliver the original Notarial Record within 14 days after the performance of the notarial act to the Recorder of Deeds of Cook County, Illinois for retention for a period of 7 years, accompanied by a filing fee of $ 5.
- The Notarial Record must be created and maintained for each person whose signature is the subject of a notarial act regarding a Document of Conveyance and must be in the prescribed form
- No copies of the original Notarial Record may be made or retained by the Notary. The Notary’s employer or principal may retain copies of the Notarial Records as part of its business records, subject to applicable privacy and confidentiality standards.
- The failure of a notary to comply with the procedure set forth in this Section does not affect the validity of the Residential Real Property transaction in connection to which the Document of Conveyance is executed, in the absence of fraud.
- The Notarial Record or other medium containing the thumbprint or fingerprint must be made available or disclosed only upon receipt of a subpoena duly authorized by a court of competent jurisdiction. Such Notarial Record or other medium is not subject to disclosure under the Freedom of Information Act [5 ILCS 140/1 et seq.] and shall not be made available to any other party, other than a party in succession of interest to the party maintaining the Notarial Record or other medium.
- In the event there is a breach in the security of a Notarial Record maintained by the Recorder of Deeds of Cook County, Illinois, the Recorder must notify the person identified as the “signer” in the Notarial Record at the signer’s residential street address set forth in the Notarial Record. “Breach” shall mean unauthorized acquisition of the fingerprint data contained in the Notarial Record that compromises the security, confidentiality, or integrity of the fingerprint data maintained by the Recorder. The notification must be in writing and made in the most expedient time possible and without unreasonable delay, consistent with any measures necessary to determine the scope of the breach and restore the reasonable security, confidentiality, and integrity of the Recorder’s data system.
- Subsections (1) through (12) does not apply on and after July 1, 2013.
- Beginning July 1, 2013, at the time of notarization, a notary public shall officially sign every notary certificate and affix the rubber stamp seal clearly and legibly using black ink, so that it is capable of photographic reproduction. The illegibility of any of the information does not affect the validity of a transaction.
Pursuant to 5 ILCS 312/3-103, notary public who is not an attorney or an accredited immigration representative who advertises the services of a notary public in a language other than English, shall include in the document, advertisement, stationery, letterhead, business card, or other comparable written material the following: notice in English and the language in which the written communication appears.
Failure to follow the procedures in this Section results in a fine of $ 1,000 for each written violation. The second violation results in suspension of notary authorization. The third violation results in permanent revocation of the commission of notary public. Violations do not preempt or preclude additional appropriate civil or criminal penalties.
5 ILCS 312/3-103 provides that notary public, agency or any other person who is not an attorney must not represent, hold themselves out or advertise that they are experts on immigration matters or provide any other assistance that requires legal analysis, legal judgment, or interpretation of the law unless they are a designated entity as defined pursuant to Section 245a.1 of Part 245a of the Code of Federal Regulations (8 CFR 245a.1) or an entity accredited by the Board of Immigration Appeals. Violation of this provision is a business offense punishable by a fine of 3 times the amount received for services, or $ 1,001 minimum, and restitution of the amount paid to the consumer.
5 ILCS 312/3-103 provides that any person who aids, abets or otherwise induces another person to give false information concerning immigration status is guilty of a Class A misdemeanor for a first offense and a Class 3 felony for a second or subsequent offense committed within 5 years of a previous conviction for the same offense.
Any notary public who violates the provisions of this Section is guilty of official misconduct and subject to fine or imprisonment.
If a notary public is convicted of 2 or more business offenses involving a violation of the Act within a 12-month period while commissioned, or of 3 or more business offenses involving a violation of the Act within a 5-year period regardless of being commissioned, the Secretary automatically revokes the notary public commission of that person on the date that the person’s most recent business offense conviction is entered as a final judgment[iii].
Pursuant to 5 ILCS 312/3-104, the maximum fee is $ 1.00 for any notarial act performed and, until July 1, 2018, up to $ 25 for any notarial act performed pursuant to Section 3-102 [5 ILCS 312/3-102]. Fees for a notary public, agency, or any other person who is not an attorney or an accredited representative filling out immigration forms is limited to the following:
- $ 10 per form completion;
- $ 10 per page for the translation of a non-English language into English where such translation is required for immigration forms;
- $ 1 for notarizing;
- $ 3 to execute any procedures necessary to obtain a document required to complete immigration forms; and
- . A maximum of $ 75 for one complete application.
5 ILCS 312/3-104 provides that any person who violates the above provisions is guilty of a Class A misdemeanor for a first offense and a Class 3 felony for a second or subsequent offense committed within 5 years of a previous conviction for the same offense. Upon his or her own information or upon complaint of any person, the Attorney General or any State’s Attorney, or their designee, may maintain an action for injunctive relief in the court against any notary public or any other person who violates the provisions. If the Attorney General or any State’s Attorney fails to bring an action within 90 days of receipt of a complaint, any person may file a civil action to enforce the provisions maintain an action for injunctive relief.
All notaries public must provide receipts and keep records for fees accepted for services provided. Failure to provide receipts and keep records that can be presented as evidence of no wrongdoing is construed as a presumptive admission of allegations raised in complaints against the notary for violations related to accepting prohibited fees[iv].
Pursuant to 5 ILCS 312/3-105, a notary public must have authority to perform notarial acts throughout the State so long as the notary resides in the same county in which the notary was commissioned or, if the notary is a resident of a state bordering Illinois, so long as the notary’s principal place of work or principal place of business is in the same county in Illinois in which the notary was commissioned.
5 ILCS 312/3-106 provides that upon the receipt of a written request, the notarized document, and a fee of $ 2 payable to the Secretary of State or County Clerk, the Office of the Secretary of State or County Clerk must provide a certificate of authority in the prescribed form.
Pursuant to 5 ILCS 312/4-101, when any notary public legally changes his or her name or moves from the county in which s/he was commissioned or, if the notary public is a resident of a state bordering Illinois, no longer maintains a principal place of work or principal place of business in the same county in Illinois in which s/he was commissioned, the commission ceases to be in effect and should be returned to the Secretary of State. These individuals who desire to again become a notary public must file a new application, bond, and oath with the Secretary of State.
Pursuant to 5 ILCS 312/5-101, no person is automatically reappointed as a notary public. At least 60 days prior to the expiration of a commission the Secretary of State must mail notice of the expiration date to the holder of a commission. Every notary public who is an applicant for reappointment shall comply with the provisions of Article II of this Act [5 ILCS 312/2-101].
5 ILCS 312/5-102 provides that a person shall not solicit any notary public or an applicant for a commission or reappointment thereof and offer to provide a surety bond more than 60 days in advance of the expiration date of the notary public’s commission.
Whenever it appears to the Secretary of State that any person is engaged or is about to engage in any acts or practices which constitute a violation of the provisions of this Section, the Secretary of State may, in his or her discretion, through the Attorney General, apply for an injunction, and, upon a proper showing, any circuit court has power to issue a permanent or temporary injunction or restraining order without bond to enforce the provisions of the Act. Either party to such suit has the right to prosecute an appeal from the order or judgment of the court.
Any person, association, corporation, or others who violate the provisions of this Section is guilty of a business offense and punishable by a fine of not less than $ 500 for each offense[v].
Pursuant to 5 ILCS 312/6-102, in taking an acknowledgment, a verification or witnessing or attesting a signature, the notary public must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the notary and making the acknowledgment or verification is the person whose true signature is on the instrument. A notary public has satisfactory evidence that a person is the person whose true signature is on a document if that person:
- is personally known to the notary;
- is identified upon the oath or affirmation of a credible witness personally known to the notary; or
- is identified on the basis of identification documents. Identification documents are documents that are valid at the time of the notarial act, issued by a state or federal government agency, and bearing the photographic image of the individual’s face and signature of the individual[vi].
5 ILCS 312/6-103 provides that a notarial act must be evidenced by a certificate signed and dated by the notary public. The certificate must include identification of the jurisdiction in which the notarial act is performed and the official seal of office.
Pursuant to 5 ILCS 312/6-104, the following are the prohibited acts.
- A notary public shall not use any name or initial in signing certificates other than that by which the notary was commissioned.
- A notary public shall not acknowledge any instrument in which the notary’s name appears as a party to the transaction.
- A notary public shall not affix his signature to a blank form of affidavit or certificate of acknowledgment and deliver that form to another person with intent that it be used as an affidavit or acknowledgment.
- A notary public shall not take the acknowledgment of or administer an oath to any person whom the notary actually knows to have been adjudged mentally ill by a court of competent jurisdiction and who has not been restored to mental health as a matter of record.
- A notary public shall not take the acknowledgment of any person who is blind until the notary has read the instrument to such person.
- A notary public shall not take the acknowledgment of any person who does not speak or understand the English language, unless the nature and effect of the instrument to be notarized is translated into a language which the person does understand.
- A notary public shall not change anything in a written instrument after it has been signed by anyone.
- No notary public shall be authorized to prepare any legal instrument, or fill in the blanks of an instrument, other than a notary certificate; however, this prohibition shall not prohibit an attorney, who is also a notary public, from performing notarial acts for any document prepared by that attorney.
- If a notary public accepts or receives any money from any one to whom an oath has been administered or on behalf of whom an acknowledgment has been taken for the purpose of transmitting or forwarding such money to another and willfully fails to transmit or forward such money promptly, the notary is personally liable for any loss sustained because of such failure. The person or persons damaged by such failure may bring an action to recover damages, together with interest and reasonable attorney fees, against such notary public or his or her bondsmen.
Pursuant to 5 ILCS 312/7-101, notary public and the surety on the notary’s bond are liable to the persons involved for all damages caused by the notary’s official misconduct.
5 ILCS 312/7-102 provides that the employer of a notary public is also liable to the persons involved for all damages caused by the notary’s official misconduct, if:
- the notary public was acting within the scope of the notary’s employment at the time the notary engaged in the official misconduct; and
- the employer consented to the notary public’s official misconduct.
Pursuant to 5 ILCS 312/7-105, a notary public who knowingly and willfully commits any official misconduct is guilty of a Class A misdemeanor. A notary public who recklessly or negligently commits any official misconduct is guilty of a Class B misdemeanor.
5 ILCS 312/7-106 provides that any person who acts as, or otherwise willfully impersonates, a notary public while not lawfully appointed and commissioned to perform notarial acts is guilty of a Class A misdemeanor.
5 ILCS 312/7-107 provides that any person who unlawfully possesses a notary’s official seal is guilty of a misdemeanor and punishable upon conviction by a fine not exceeding $ 1,000.
5 ILCS 312/7-108 provides that the Secretary of State may revoke the commission of any notary public who, during the current term of appointment:
- submits an application for commission and appointment as a notary public which contains substantial and material misstatement or omission of fact; or
- is convicted of any felony or official misconduct under the Act.
Pursuant to 5 ILCS 312/7-109, upon his or her own information or upon complaint of any person, the Attorney General or any State’s Attorney, or their designee, may maintain an action for injunctive relief in the circuit court against any notary public who renders, offers to render, or holds himself or herself out as rendering any service constituting the unauthorized practice of the law. Any organized bar association in Illinois may intervene in the action, at any stage of the proceeding, for good cause shown. The action may also be maintained by an organized bar association in Illinois. These remedies are in addition to, and not in substitution for, other available remedies.
[i] 5 ILCS 312/2-105.
[ii] 5 ILCS 312/3-101.
[iii] 5 ILCS 312/3-103.
[iv] 5 ILCS 312/3-104.
[v] 5 ILCS 312/5-102.
[vi] 5 ILCS 312/6-102.