Section 10A-1-4.02

Delivery of filing instrument; duties of filing officer; fee; automated electronic system.

(a) A filing instrument required or allowed by this title to be delivered to the Secretary of State for filing shall be delivered to the Secretary of State for filing.

(b) A filing instrument required or permitted by this title to be delivered to the judge of probate for filing shall be delivered to the judge of probate for filing.

(c) If a provision of this title does not specify which filing officer a filing instrument is to be delivered to for filing, that filing instrument shall be delivered to the Secretary of State for filing.

(d) If the filing officer finds that a filing instrument delivered to the filing officer for filing substantially conforms to the provisions of this title that apply to that filing instrument and that all required fees have been paid, the filing officer shall file it immediately upon delivery by:

(1) recording that filing instrument as "filed," together with the name and official title of the filing officer and the date and time of receipt on the instrument and all copies required hereunder and on the receipt for the filing fee;

(2) accepting that filing instrument into the filing system adopted by the filing officer and assigning the instrument a date and time of filing; and

(3) delivering a copy of that filing instrument, indicating the date and time of the filing on the copy along with the filing fee receipt to the entity or its representative.

(e) The filing fee to be collected by the filing officer shall be paid or provision for payment shall be made in a manner permitted by the filing officer. The filing officer may accept payment of the correct amount due by check, credit card, charge card, or similar method. If the amount due is tendered by any method other than cash, the liability shall not be finally discharged until the filing officer receives final irrevocable full payment of immediately available funds. If after five consecutive calendar days prior notice by the filing officer to the entity or person who delivered a filing instrument for filing for which the filing fee was not received in final irrevocable full payment of immediately available funds, then the filing officer may declare the filing instrument to be null and void and of no legal effect as if it had never been filed and may remove the filing instrument from the records of the filing officer.

(f) If the filing officer refuses to file a filing instrument, the filing officer shall return it to the entity or its representative within five consecutive calendar days after the filing instrument was delivered to the filing officer for filing, together with a brief, written explanation of the reason for the refusal.

(g) Delivery by a filing officer of an acknowledgement of filing, receipt for the filing fee, an explanation for the reason a filing instrument was not filed, notice that a filing fee was not made in final irrevocable full payment of immediately available funds, or other communication as to a filing instrument delivered for filing to that filing officer may be accomplished by mail, courier, or electronic transmission.

(h) The duty of the filing officer to file filing instruments pursuant to this title is ministerial. Filing or refusing to file a filing instrument by the filing officer does not:

(1) affect the validity or invalidity of the filing instrument in whole or in part;

(2) relate to the correctness or incorrectness of information contained in the filing instrument; or

(3) create a presumption that the filing instrument is valid or invalid or that information contained in the filing instrument is correct or incorrect.

(i) The Secretary of State shall keep:

(1) an alphabetical list of all domestic entities and registered foreign entities;

(2) with respect to those domestic entities and registered foreign entities, all filing instruments and any other document required or permitted to be delivered to the Secretary of State for filing pursuant to this title; and

(3) the data contained in those filing instruments.

(j) The Secretary of State shall establish and maintain an automated electronic system that enables:

(i) the delivery, acceptance, and filing by electronic transmission of all filing instruments authorized or required by this title to be delivered to the Secretary of State for filing;

(ii) all filing instruments to be in a form that complies with this title but does not require the filing instruments to be in a form adopted by or otherwise required by the Secretary of State;

(iii) the delivery, acceptance, and filing of filing instruments by electronic transmission to occur 24 hours a day, seven days a week, each day of the year, including holidays and weekends; and

(iv) each person delivering a filing instrument by means of electronic transmission to the Secretary of State for filing to receive from the Secretary of State immediate confirmation that the filing instrument has been delivered to, and accepted and filed by, the Secretary of State with that confirmation to include the information required in subsections (d)(1), (d)(2), and (d)(3), associated with that filing instrument, clearly set forth on a digital copy of that filing instrument.

(k) If a filing instrument which is authorized or required to be delivered to the Secretary of State for filing by this title is delivered to the Secretary of State by means other than electronic transmission, and that filing instrument complies with the requirements of this title, then the Secretary of State shall:

(i) file that filing instrument as of the date and time of the receipt of that filing instrument;

(ii) confirm that the filing instrument has been delivered to, and accepted and filed by, the Secretary of State with that confirmation to include the information required in subsections (d)(1), (d)(2), and (d)(3), associated with that filing instrument, clearly set forth on a copy of that filing instrument; and

(iii) either (A) place that confirmation and that copy of the filing instrument in the United States mail, postage prepaid, and properly addressed to the person who delivered that filing instrument to the Secretary of State, not later than the next business day or (B) transmit that confirmation and that copy of the filing instrument by electronic transmission to the person who delivered that filing instrument to the Secretary of State, not later than the next business day.

(l) Subject to subsection (e), a filing officer who has filed a filing instrument shall maintain that filing instrument in perpetuity.

(Acts 1994, No. 94-245, p. 343, §1; Act 2000-705, p. 1442, §3; §10-2B-1.25; amended and renumbered by Act 2009-513, p. 967, §25; Act 2014-293, p. 1052, §1; Act 2018-125, §1; Act 2019-94, §2; Act 2020-73, §3.)