|
Senate Engrossed House Bill
false filings; UCC; penalty |
|
State of Arizona House of Representatives Fifty-fifth Legislature Second Regular Session 2022
|
|
HOUSE BILL 2645 |
|
|
|
|
An Act
amending sections 41-323 and 47-9527, Arizona Revised Statutes; relating to the uniform commercial code.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 41-323, Arizona Revised Statutes, is amended to read:
41-323. Change of address; lost, stolen or compromised journal or seal; civil penalty
A. Within thirty days after the change of a notary public's mailing, business or residential address, the notary public shall deliver to the secretary of state, by certified mail or other means providing a receipt, a signed notice of the change that provides both the old and new addresses.
B. Within ten days after the loss, theft or compromise of an official journal or stamping device, the notary public shall deliver to the secretary of state, by certified mail or other means providing a receipt, a signed notice of the loss, theft or compromise. The notary also shall inform the appropriate law enforcement agency in the case of theft.
C. If a notary public fails to comply with subsection A or B of this section, the notary public has failed to fully and faithfully discharge the duties of a notary public. and If the notary public failed to comply with subsection A of this section, the secretary of state may impose a civil penalty of $25 against the notary. If the notary public failed to comply with subsection B of this section, the secretary of state shall impose a civil penalty of $1,000 against the notary. The notary public shall pay any civil penalty imposed by the secretary of state pursuant to this subsection before the renewal of the notary's commission. Failure to pay a penalty may be referred to the attorney general for collection.
D. In a judicial proceeding where the identity of a party to a notarized instrument is in question, the official journal of the notary public is lost, stolen or compromised and the notary complied with this section, a presumption shall be given to the validity of the identity of the party who signed the instrument. If it is determined that the official journal never existed or that the notary public failed to comply with this section, no presumption shall apply that the identity of the party who signed the notarized instrument in question is valid.
E. In an action in which the validity of a notarized document is at issue and it is determined that the notary public did not comply with this section, the court shall provide notice of such findings to the secretary of state and the county attorney for the county in which the violation occurred.
Sec. 2. Section 47-9527, Arizona Revised Statutes, is amended to read:
47-9527. Unauthorized records; material misstatements; false claims; liability; special action; damages; violation; classification
A. A person who causes a record to be filed or recorded in a filing office and who knows or has reason to know that the record is unauthorized under section 47-9509 or that the record contains a material misstatement or false claim is liable to a debtor, a consumer obligor, a person named as a debtor or the owner or holder of collateral affected by the record for the sum of at least five hundred dollars $500 or for treble the actual damages caused by the record, whichever is more, and reasonable attorney fees and costs of the action, if the person who causes the record to be filed or recorded wilfully refuses to terminate or correct the record within twenty days after the date of a written request from the debtor, the consumer obligor, the person named as a debtor or the owner or holder of collateral affected by the record.
B. Any debtor, any consumer obligor, any person named as a debtor or the owner or holder of collateral affected by a record that is unauthorized under section 47-9509 or that contains a material misstatement or false claim may bring an action pursuant to this section in the superior court for any temporary or permanent relief as is necessary to clear or otherwise correct the records of the filing office of the record as provided for in the rules of procedure for special actions. The relief shall be consistent with the practical limitations of the filing system used by the filing office. This special action may be brought based on the ground that the record is not authorized under section 47-9509 or contains a material misstatement or false claim. A debtor, a consumer obligor, a person named as a debtor or the owner or holder of collateral affected by the record may bring a separate special action to clear or otherwise correct the records of a filing office of the record or join the special action with an action for damages as described in this section.
C. If a debtor, a consumer obligor, a person named as a debtor or the owner or holder of collateral affected by a record that is unauthorized under section 47-9509 or that contains a material misstatement or false claim prevails in a special action pursuant to this section, both of the following apply:
1. The court may mandate any legal or equitable remedy that is consistent with the practical limitations of the filing system used by the filing office and that is necessary to immediately and effectively clear or otherwise correct the records of the filing office of the record, including ordering the person responsible for filing the record to file a termination statement or take any other action as is necessary to clear or otherwise correct the records of a filing office of the record. ; and
2. The debtor, the obligor, the person named as a debtor or the owner or holder of collateral affected by the record may recover reasonable attorney fees and costs of the action.
D. The remedies provided in this section are cumulative and are not exclusive to and do not limit any other legal or equitable remedies that may be available to any debtor, any obligor, any person named as a debtor or the owner or holder of collateral affected by a record that is unauthorized under section 47-9509 or contains a material misstatement or false claim.
E. A person who is not entitled to file a record under section 47-9509, who causes a record to be filed in the records of a filing office and who knows or has reason to know that the record is unauthorized under section 47-9509 or the record contains a material misstatement or false claim is guilty of a class 1 misdemeanor 3 felony.
F. The attorney general or county attorney for the county in which an alleged violation of this section occurred may prosecute a violation of this section.