UPDATED: E-Signatures and Remote Online Notarization

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E-Signatures and Remote Online Notarization:

The Uniform Electronic Transactions Act (“UETA”) proposed by the Uniform Law Commission (“ULC”) in 1999 presented ways for states to effectuate electronic signatures with the same legal validity of wet ink signatures. At the federal level, the Electronic Signatures in Global and National Commerce Act (“E-SIGN”), was passed by Congress in 2000, authorizing the use of electronic signatures and notarizations for transactions between two or more parties in all jurisdictions where federal laws apply. UETA has been adopted by the District of Columbia, Guam, Puerto Rico, and every state except Illinois, New York and Washington. These three states have enacted their respective comparable electronic signature legislation in lieu of adopting UETA.

Once the legal basis for electronic signatures was established, states began addressing the need to notarize electronic documents and remote online notarization. Today, electronic notarization is legally authorized in all states by E-SIGN and/or UETA. However, as of July 2020, only 27 states have laws that enable their notaries to conduct remote notarizations. The states that have implemented Remote Online Notarization (“RON”) statutes include: Alaska, Arizona1, Colorado2,  Florida, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Missour,  Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Dakota3, Tennessee, Texas, Utah, Vermont, Virginia, Washington and Wisconsin. On March 5, 2020, Wisconsin enacted the Revised Uniform Law on Notarial Acts and became the twenty-third state to authorize notaries to perform remote online notarizations.

In the 27 states that have already adopted RON statutes, documents executed and notarized remotely and electronically are valid and binding. Among the 27 states, some states, including the two Ballard states of Nevada and Minnesota, provide that the notary need not be physically located in the state of execution of the applicable party. We have notaries certified to perform RON in our Nevada office and Minnesota office who have successfully completed RON. However, some states like Maryland and Utah require the notary is physically located for RON in the state of execution. Besides the aforementioned 27 states, nearly every state legislature has submitted a RON bill for consideration. In response to the COVID-19 emergency, the State of New York issued an Executive Order No. 202.7 stating that “any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology” provided that certain conditions4 are met56. This directive was originally effective through June 5, 20207 and has now been extended to August 29, 2020 by Executive Order 202.548. According to the updated guidance issued by the New York Secretary of State, New York allows signatories to sign using electronic signatures in accordance with the New York Electronic Signatures and Records Act, provided that the notary witnesses the electronic signature.

In addition the governor of Georgia also issued an Executive Order 04.09.20.01 to suspend the purported requirement under Georgia law that notarial acts and witnessing must be executed in-person until May 30, 2020. The State Bar of Georgia suggests re-executing of certain legal documents such as a will, a trust instrument, or a power of attorney after COVID-19 when feasible.9

On March 25, 2020, the State of Pennsylvania also joined to provide limited suspension of in-person regulatory requirements under its state law or 57 Pa. C.S. § 306. The Department of State of Pennsylvania provides specific guidelines for remote online notarization for estate-planning and real estate transactions10. Beginning April 20, 2020, Pennsylvania temporarily expanded remote notarization for all Pennsylvania notaries public, pursuant to Act 15 of 2020 (S.B. 841)11. This authorization will expire 60 days after termination or expiration of the COVID-19 disaster emergency issued by Governor Wolf12.This Act 15 of 2020 requires Pennsylvania notaries to (1) notify the Pennsylvania Department of State that the notaries intend to conduct RON and designate the communication and identity-proofing technology for RON; (2) use a technology that satisfies certain requirements13; (3) disclose that the notarization was conducted using communication technology on the notarial certificate; and (4) be in Pennsylvania at the time of the notarial act. However, unlike the Pennsylvania notary, the remotely located individual may be in Pennsylvania, another state or U.S. territory or possession, or in a foreign country. At this time, the Pennsylvania Department of State maintains a list of approved technology vendors and continues to add new remote notary vendors. Pennsylvania does not accept remote notarization conducted using Skype, Zoom and FaceTime alone.

The State of Delaware also issued the Eleventh Modification of the Declaration of a State of Emergency, authorizing notarial acts “by utilizing audio-visual technology (remote notarization),” provided that certain conditions are met14. The Executive Order also permits the notarization performed by a licensed Delaware attorney who is in good standing with the Supreme Court of Delaware. Subsequently, the Delaware Department of State issued a guidance stating that “there is currently nothing in Delaware statutes that prohibits an individual or business from using a remote notary from states who permit remote notarization. At this time, Delaware does not permit remote notarizations by Delaware notaries,15” but it also provides that the general public can use Notarize.com, NotaryCam, or any other provider that they may research and choose. The states with temporary authorization to perform RONs or expand their existing RONs are Alabama, Colorado, Connecticut, Delaware, Georgia, Illinois, Iowa, Maryland, New Hampshire, New York, Pennsylvania, Vermont, Washington, Wisconsin and Wyoming. For more information regarding rules for each of these states, please refer to the below links to third-party resources.

In addition, on March 18, 2020, Senator Kevin Kramer, R-N.D., and Senator Mark Warner, D-Va., introduced legislation that would allow immediate nationwide use of RON in response to the COVID-19 outbreak. The Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020 (“SECURE”) would authorize every notary in the United State to perform RONs, requires tamper-evident technology in electronic notarizations and provides fraud prevention through use of multifactor authentication16. Under Senate rules, the bill would most likely be referred to the Senate Banking Committee, which must approve the bill before sending it to the Senate floor. As of March 23, 2020, House Representative Guy Reschenthaler, R-PA-14, also introduced a new bill to the House, H.R. 6364, to authorize and establish minimum standards for electronic and remote notarizations. Along with these efforts, national trade associations such as American Land Title Association (“ALTA”) and Mortgage Bankers Association (“MBA”) are pushing for a federal RON provision to be attached to COVID-19 stimulus bill(s). At this time, we are monitoring the future developments of the bills closely.

In response to the current development over the RON, Fannie Mae and Freddie Mac have issued guidance to address several policy areas to support mortgage originations, including power of attorney and acceptance of RON. The guidance links are listed below17.

E-Recording:

Among title insurance companies, some appear more willing than others to provide a gap insurance for title for the time between closing and recording, regardless of whether the recording offices are open or accepting electronic filings. We have heard reports of First American Title Insurance Company and Old Republic Title Company willing to provide such gap coverage, but the situation is fluid and changing daily. First American Title Insurance Company indicated that it has implemented an internal approval process to evaluate the facts of each transaction to see if and under what terms the company can provide title insurance. 

Chicago Title Insurance Company, Fidelity National Title Insurance Company and Commonwealth Land Title Insurance Company issued a statement on March 13, 2020 stating that they will not close a transaction if the appropriate recording offices are closed. However, per the statement, if a recording office is closed to the public, but retains the ability to complete recording of documents electronically, then they will insure title as long as an appropriate title search is performed and applicable tax information is available prior to closing.

As of January 1, 2020, over 2,000 recording jurisdictions will accept a scanned image of a paper security instrument or electronically prepared security instrument for recordation. However, whether a recording office will accept electronic recording (“e-recording18”) varies by jurisdiction. For example, every county in Colorado, Delaware, Hawaii and Iowa accepts e-recordings; whereas only three counties in West Virginia and 20 of 67 counties in Alabama offer e-recording. Currently, Vermont is the only state where e-recording is not accepted anywhere. 

Despite the willingness of title insurers’ to provide gap coverage and the availability of e-recording in many jurisdictions of the U.S., it must be noted that in order to e-record a document, the recording office must be “open” with the ability to complete recording even if closed to public access. Amid the COVID-19 crisis, we are noticing many jurisdictions, including the New York County Clerk, with complete closure and inability to record electronically or physically. As of March 20, 2020, we learned that the clerk’s office in the City of Philadelphia is still able to accept electronic recordings and the recorders were deemed essential services which enable them to continue processing the recordings. For more information regarding current status by jurisdiction, please refer to the below table19and the below links to third-party resources. Also, ALTA has started monitoring the status of recording offices nationwide. The main ALTA site for Covid-19 can be found at https://www.alta.org/business-tools/coronavirus.cfm .

Key
DLYD:  Delayed. Recording may experience a delay.
EREC:  E-recording only. 
EREC + MAIL:  Accepting e-recording and mail.
CLSD: Closed to recording.

ALABAMA  

Jefferson County

EREC

Madison County

EREC

Marshall County

EREC

   
CALIFORNIA  

Alhemarle County

DLYD

Contra Costa County

EREC

Kern County

EREC

Los Angeles County

EREC

Nevada County

EREC + MAIL

Riverside County

EREC

San Bernardino County

EREC

San Diego County

EREC + MAIL

San Francisco County

EREC

San Luis Obispo

EREC + MAIL, plus drop box at 1055 Monterey Street

Santa Clara County

EREC + MAIL

Sonoma County

EREC + MAIL

Tulare County

EREC + MAIL

Yuba County

EREC + MAIL

   
COLORADO  

Adams County

CLSD

Boulder County

EREC

Custer County

CLSD

Delta County

DLYD

Douglas County

EREC + MAIL

Eagle County

DLYD

Freemont County

EREC

Gunnison County

EREC + MAIL

Jefferson County

CLSD

Morgan County

EREC + MAIL, plus drop box

Pueblo County

EREC + MAIL

Saguache County

EREC + MAIL, plus drop box

Summit County

EREC

Weld County

EREC

   
   
CONNECTICUT  

Town of Colchester

EREC + MAIL, plus drop box

Town of Glastonbury

EREC + MAIL, in-person by appt.

Town of Durham

EREC + MAIL, in-person by appt.

   
FLORIDA  

Duval County

DLYD

Miami-Dade County

EREC + MAIL

   
GEORGIA  

Clayton County

CLSD

Cobb County

EREC + MAIL

   
IDAHO  

Valley County

EREC

   
ILLINOIS  

Carroll County

EREC + MAIL, mail-in starting 3/20

Lake County

EREC + MAIL, plus drop box

   

INDIANA

 

Blackford County

EREC + MAIL

Crawford County

EREC

Pike County

EREC + MAIL

Whitley County

EREC + MAIL, plus drop box

   

IOWA

 

Allamakee County

EREC + MAIL

Bremer County

EREC + MAIL

Carroll County

EREC + MAIL

Cass County

EREC + MAIL

Cedar County

EREC + MAIL

Cherokee County

EREC + MAIL

Clarke County

EREC + MAIL

Clayton County

EREC + MAIL

Crawford County

EREC + MAIL

Dallas County

EREC + MAIL

Dickinson County

EREC + MAIL

Dubuque County

EREC + MAIL

Emmet County

EREC + MAIL

Franklin County

EREC + MAIL

Guthrie County

EREC + MAIL

Hamilton County

EREC + MAIL

Henry County

EREC + MAIL

Humboldt County

EREC + MAIL

Ida County

EREC + MAIL

Jackson County

EREC + MAIL

Jones County

EREC + MAIL

Linn County

EREC + MAIL

Lucas County

EREC + MAIL

Jasper County

EREC + MAIL

Johnson County

EREC + MAIL

Lee County

EREC + MAIL, plus drop box. Scheduled to reopen 4/13

Louisa County

EREC + MAIL, plus drop box

Madison County

DLYD

Marion County

EREC + MAIL

Marshall County

EREC + MAIL, plus by appt. on a case-by-case basis

Pottawattamie County

EREC + MAIL

Ringgold County

EREC + MAIL, plus drop box

Warren County

EREC + MAIL, plus drop box

Washington County

EREC + MAIL

Wayne County

EREC + MAIL

Webster County

EREC + MAIL

Winnebago County

EREC + MAIL

Worth County

EREC + MAIL

   

KANSAS

 

Bourbon County

EREC

Franklin County

EREC + MAIL

   

MAINE

 

Kennebec County

EREC + MAIL, plus drop box

   

MARYLAND

 

ALL Maryland Counties

EREC

   

MICHIGAN

 

Calhoun County

EREC

Genesee County

EREC + MAIL, scheduled to reopen on 4/6

Grand Traverse County

EREC + MAIL, plus drop box

Oscoda County

CLSD

Muskegon County

CLSD

Washtenaw County

CLSD

Wayne County

CLSD

   

MINNESOTA

 

Arenac County

EREC + MAIL

Cass County

EREC + MAIL, plus drop boxes

Hennepin County

EREC

Penobscot County

EREC + MAIL, plus drop box

Piscataquis County

EREC + MAIL, plus drop box

Todd County

EREC + MAIL

Weld County

EREC + MAIL

   

MISSOURI

 

Platte County

EREC + MAIL

   

MONTANA

 

Missoula County

EREC, for urgent issues or plats, contact the county

   

NEBRASKA

 

Keith County

EREC + MAIL

Washington County

EREC + MAIL

   

NEW JERSEY

 

Bergen County

EREC

Burlington County

EREC

Camden County

EREC

Cape May County

EREC + MAIL

Cumberland County

EREC

Essex county

EREC

Hudson County

EREC

Hunterdon County

EREC

Mercer County

CLSD

Middlesex County

DLYD

Monmouth County

EREC

Ocean County

EREC

Somerset County

EREC + MAIL

Union County

EREC + MAIL, in-person by appt.

Warren County

EREC

   

NEW YORK

 

Broome County

EREC

Columbia County

DLYD

Cortland County

DLYD

Delaware County

DLYD

Dutchess County

EREC + MAIL

Essex County

DLYD

Franklin County

DLYD

Lake County

EREC + MAIL

Madison County

DLYD

Monroe County

DLYD

Montgomery County

CLSD

Nassau County

DLYD, restricted hours. Tu, W, Th from 9 a.m. - noon

Oneida County

EREC + MAIL

Orange County

EREC + MAIL

Oswego County

EREC + MAIL

Rensselaer County

EREC + MAIL

Saratoga County

EREC + MAIL

Suffolk County

EREC

Sullivan County

EREC + MAIL

Tioga County

DLYD

Ulster County

EREC

Washington County

EREC

   

NEVADA

 

Elko County

EREC

Nye County

EREC

   

NORTH CAROLINA

 

Durham County

Closed for e-recording but open for walk-ins

Pasquotank County

CLSD

   

NORTH DAKOTA

 

Hettinger County

EREC + MAIL

   

OHIO

 

Cuyahoga County

DLYD

Greene County

CLSD

Miami County

EREC + MAIL

Stark County

EREC + MAIL, plus drop off in lobby

   

OKLAHOMA

 

Comanche County

EREC + MAIL

Rogers County

EREC + MAIL

   

OREGON

 

Clackamas County

EREC + MAIL, reopening 4./6

Coos County

EREC + MAIL

GrantCounty

DLYD

Lake County

EREC + MAIL

Lane County

EREC + MAIL, plus drop box

Wallowa County

EREC + MAIL

   

PENNSYLVANIA

 

Adams County

DLYD

Bucks County

EREC

Butler County

EREC

Centre County

EREC

Crawford County

EREC

Cumberland County

EREC

Dauphin County

EREC

Delaware County**

EREC

Lancaster County

EREC + MAIL

Lawrence County

EREC + MAIL

Leheigh County

EREC, Assessment office is closed

Luzerne County

EREC, Physical access is greatly restricted

Montgomery County

EREC + MAIL

Philadelphia County

EREC

   

RHODE ISLAND

 

Town of Smithfield

EREC + MAIL

   

SOUTH CAROLINA

 

Lexington County

EREC + MAIL

   

SOUTH DAKOTA

 

DavidsonCounty

DLYD

Moody County

EREC + MAIL

   

TENNESSEE

 

Cheatham County

EREC + MAIL, plus drop box. Closed 3/19

   

TEXAS

 

Hays County

EREC + MAIL

   
   

WEST VIRGINIA

 

Jefferson County

EREC + MAIL, plus drop box

WASHINGTON

 

Clark County

EREC

Cowlitz County

EREC + MAIL, plus drop box

Grant County

EREC + MAIL, plus drop box

King County

EREC

Lewis County

EREC + MAIL

Pierce County

DLYD

Skagit County

EREC + MAIL

Snohomish County

EREC + MAIL, plus drop boxes. Couriers at 10a, Noon, 2p

Whatcom County

EREC + MAIL, plus drop box

   

WISCONSIN

 

Waukesha County

EREC + MAIL

   

UTAH

 

Beaver County

EREC

Grand County

EREC

   
VIRGINIA  

Chesterfield County

Closed 3/18 but will re-open for paper and e-recordings on 3/19

Spotsylvania County

EREC

 

For more information please refer to the links below.

https://blog.alta.org/2019/06/the-basics-of-e-recording.html

https://acrobat.adobe.com/content/dam/doc-cloud/en/pdfs/adobe-sign-us-guide-e-signatures-wp-ue.pdf

https://www.nationalnotary.org/notary-bulletin/blog/2020/03/notary-technology-digital-certificates

https://www.docusign.com/learn/us-electronic-signature-laws-and-history

https://www.proplogix.com/blog/remote-online-notarization-a-brief-history-and-how-its-changing-real-estate-closings

https://simplifile.com/services/e-recording/e-recording-counties/

https://www.nationalnotary.org/notary-bulletin/blog/2020/03/states-emergency-action-remote-notarization


1: Arizona’s original RON law was scheduled to take effect July 1, 2020 but by the Governor Doug Ducey’s Executive Order 2020-26 the timeline is accelerated as to April 10, 2020. https://azgovernor.gov/governor/news/2020/04/governor-ducey-signs-executive-order-establishing-virtual-notary-services; see also https://azgovernor.gov/sites/default/files/eo_2020-26.pdf

2: On March 27, 2020, the physical presence requirement for notarizations in Colorado has been suspended under its Executive Order D 2020 019. The Executive Order was extended multiple times by Executive Order D 2020 030, D 2020 047, and D 2020 087, on May 29, 2020 until June 29, 2020. On June 26, 2020, the Executive Order was extended until December 31, 2020 under a new law SB 20-096.

3: South Dakota has enacted RON laws, but South Dakota limits RON to notarizing paper documents only. At this time, the governor of South Dakota does not have a plan to sign an executive order allowing any temporary enactment regarding RON.

4: The conditions are following: (1) the person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after; (2) the video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing); (3) the person must affirmatively represent that he or she is physically situated in the State of New York; (4) the person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed; (5) the Notary may notarize the transmitted copy of the document and transmit the same back to the person; and (6) the Notary may repeat the notarization of the original signed document as of the date of execution, provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.

5: On March 25, 2020, the New York Department of State issued a guidance providing that when performing RON, the notary should indicate on the document that the notarization was made pursuant to Executive Order No. 202.7 and keep a notary log of each remote notarization. (However, not following these two recommendations will not invalidate the act or be cause for discipline). Also, the guidance states that when the notary and signatory are in different counties, the notary should indicate on the document the county in which each person in located.

6: On March 31, 2020, the New York Department of State issued an additional guidance clarifying that the notaries must “print and sign the document, in ink,” and “may not use an electronic signature to officiate the document,” when performing RON. https://www.dos.ny.gov/licensing/notary/DOS_COVID19_RemoteNotaryGuidance.pdf

7: This effective date was extended by Executive Order 202.14, further extended by Executive Order 202.18, and further extended by Executive Order 202.28 until June 5, 2020. https://www.governor.ny.gov/news/no-20218-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency; see also https://www.nationalnotary.org/knowledge-center/news/law-updates/ny-governor-executive-order-202-7-2020 and https://www.governor.ny.gov/news/no-20228-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

8: https://www.governor.ny.gov/news/no-20254-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

9: The State Bar of Georgia lists general practices guidance for Remote Online Notarization under Executive Order 04.09.20.01 which can be found at https://www.gabar.org/COVID-19_remote_notarization.cfm

10: See https://www.dos.pa.gov/Documents/2020-03-25-Notaries-Inperson-limited-suspension.pdf; and https://www.dos.pa.gov/Documents/2020-04-02-Remote-Notarization.pdf

11: https://www.dos.pa.gov/OtherServices/Notaries/NotaryServices/Documents/Update/Remote%20notarization%20SB%20841.pdf

12: https://www.governor.pa.gov/wp-content/uploads/2020/03/20200306-COVID19-Digital-Proclamation.pdf

13: Those requirements are:

  1. The technology must enable a notary public located in Pennsylvania to communicate with a remotely located individual simultaneously by sight and sound and make reasonable accommodations for persons with vision, hearing or speech impairments;
  2. The technology must enable the notary public to determine the identity of the remotely located customer based either on (a) his or her personal knowledge; (b) the testimony of a credible witness; or (c) by using at least two identity-proofing technologies or services. Identify-proofing processes or services include having the remotely located individual answer questions for which there is a high probability that only the true individual would be able to answer correctly, or may identify the individual through the use of biometric identification technology or the analysis of identification cards. The identity of a witness must be determined in the same manner as the identity of the remotely located customer;
  3. The technology must enable the identification of a record before in the presence of the notary as the same record being signed by or containing a statement made by the remotely located individual. This can be accomplished by the use of electronic records or signatures created using tamper evident technology; the presence of the same tangible record before the notary and the remotely located individual; or by the exchange of tangible records;
  4. The technology must create an audio-visual recording of the notarization, including all interactions between the notary public and the remotely located individual, that will be retained by the notary public or a person acting on his or her behalf for at least ten years.

14: https://governor.delaware.gov/health-soe/eleventh-state-of-emergency/

15: https://notary.delaware.gov/covid-19-coronavirus/

16: For more information regarding the proposed SECURE Act, please refer to the following link to third-party resource: https://www.housingwire.com/wp-content/uploads/2020/03/The-SECURE-Notarization-Act_How-Is-My-State-Impacted.pdf

17: https://singlefamily.fanniemae.com/media/22316/display

https://sf.freddiemac.com/faqs/covid-19-selling-faqs#remote-online-notarization-ron

18: E-recording process works as a submitter electronically prepares, uploads, and submits documents; the county receives the documents electronically for processing and reviews the documents; and after review and approval, documents are processed, stamped, officially recorded with the county, and put on public record.

19: Simplifile. Available at https://go.simplifile.com/en/covid-19-county-recording-status-and-faq. Status as of March 19, 2020.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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