The West Virginia legislature recently amended its laws related to financial institutions and to provide for out-of-state commissioners who may take acknowledgments of deeds and other writings to be admitted for recording in West Virginia.  The legislation discussed in this memorandum are effective May 30, and June 7, 2019 respectfully.

WEST VIRGINIA SENATE BILL 453

The amendments changed the name of the Division of Banking to the Division of Financial Institutions (“Division”).

The amendments also gave the Commissioner of the Division of Financial Institutions the authority to determine alternate acceptable forms for background check information for direct or indirect principals of a licensee or applicant for a mortgage lender or broker license who are not residents of the United States if such licensee or applicant also has owners or principals who are residents of the United States and the Division has been provided adequate background information for such owners or principals of the licensee or applicant who are United States residents.

WEST VIRGINIA SENATE BILL 669

The Secretary of State of West Virginia may appoint a qualified person residing in West Virginia or outside West Virginia but within the United States, its territories, or possessions, as a commissioner to acknowledge signatures performed in or out of West Virginia by persons residing in or out of the state covering deeds, leases, and other writings pertaining to West Virginia property for recordation in the state of West Virginia.

To be qualified for such an appointment, a person must be commissioned as a notary public pursuant to West Virginia law.

Applications for appointment as a commissioner must be made as required by the Secretary of State.  The Secretary of State may deny, refuse to renew, revoke, suspend, or impose a condition on a commission for any act or omission that demonstrates the individual lacks the honesty, integrity, competence, or reliability to act as a commissioner, including:

• Failure to comply with these provisions;
• A fraudulent, dishonest, or deceitful misstatement or omission in the application for a commission submitted to the Secretary of State;
• A conviction of the applicant or commissioner for any felony or for a crime involving fraud, dishonesty, or deceit;
• A finding against, or admission of liability by, the applicant or commissioner in any legal proceeding or disciplinary action based on the applicant’s or commissioner’s fraud, dishonesty, or deceit;
• Failure by the commissioner to discharge any duty required of a commissioner whether by these provisions, rules promulgated by the Secretary of State, or any federal or state law;
• Use of false or misleading advertising or representation by the notary public representing that the notary has a duty, right, or privilege that the notary does not have;
• Revocation, suspension, or refusal or failure to renew the commissioner’s commission as a notary public;
• Violation by the commissioner of a rule of the Secretary of State regarding a commissioner; and
• Denial, refusal to renew, revocation, suspension, or conditioning of a commission in another state.

Before issuance of a commission, an applicant must provide at the time of application a statement that he or she solemnly swears or affirms, under penalty of perjury, that the answers to all questions in the application are true, complete, and correct; and, if appointed and commissioned, he or she will perform faithfully, to the best of his or her ability, all acts in accordance with the law.

A nonrefundable fee of $500 for each commission issued must be paid to the Secretary of State.  The Secretary of State has the authority to refund some or all of the application fee for denials resulting from good-faith mistakes made by applicants.

Upon approval of a successful application, commissioners will hold office for 10 years, unless removed by the Secretary of State as provided by law. When any oath may lawfully be administered, or affidavit or deposition taken, within the, territory, or district for which any such commissioner is appointed, to be used in West Virginia, it may be done by the commissioner.

Each commissioner must have an official seal, which must be a rubber stamp containing:

• The words “Official Seal”;
• The words “Commissioner for West Virginia”;
• The commissioner’s name exactly as it is written as an official signature;
• The city and state of residence of the commissioner; and
• The words “My Commission Expires” and the date of expiration of the commission.

A stamped imprint of the seal, together with the official signature, must be filed in the office of the Secretary of State. Commissioners may take, within or any place outside of the State of West Virginia, the acknowledgements of deeds and other writings to be admitted to the record in the State of West Virginia, but each acknowledgement must reflect where the acknowledgement was taken, including, but not limited to, the state and county or territory.  Every certificate of the commissioner must be authenticated by his or her signature and official seal.

Commissioners must refrain from the following prohibited activities:

• Assisting persons in drafting legal records, giving legal advice, or otherwise practicing law;
• Acting as an immigration consultant or an expert on immigration matters; or
• Representing a person in a judicial or administrative proceeding relating to immigration to the United States, United States citizenship, or related matters.

The above provisions should not be construed to prohibit the practice of law by a duly licensed attorney