TitleBytes News & Happenings

NOTARIZATION – ELECTRONIC & REMOTE

By John Bommarito

On June 28, 2018, Governor Snyder signed HB 5811 (PA 330 of 2018) which essentially authorizes Remote Online Notarization (RON) in Michigan. The law is effective September 30, 2018 and when effective, authorizes the Secretary of State (SOS), along with the Department of Technology Management and Budget (DTMB) to review and approve technology platforms for the performance of remote notarial acts in this state. But first, the SOS and the DTMB must promulgate guidelines and standards for the notaries who wish to perform RON and for the platforms to be used. When evaluating platforms, the SOS and DTMB will consider at a minimum: 1) ensuring that any change to an electronic record is plainly evident; 2) the ability to ensure the electronic records’ integrity regarding creation, transmittal, storage, and authentication; 3) the need to prevent fraud or mistakes in the performance of RON; 4) the ability to investigate and authenticate an remotely performed notarial act; 5) the most recent standards enacted by national trade associations; and 6) the standards practices and customs of other jurisdictions.

When confirming the identity of the individual whose signature appears on the record requested to be remotely notarized, the individual’s identity would be confirmed by a combination of credential analysis and identity proofing. Credential analysis is the process by which a third party validates an identity document (such as a driver’s license) presented by the individual to be genuine. Identity proofing is the process by which the principal/signatory of the record affirms the validity of their identity to a third party through a review of public and proprietary data sources (i.e. answering questions that only the signatory would know about themselves).

The new law requires that notaries who perform RON to maintain a journal (either in a traditionally tangible format or digital, tamper-evident electronic format) of those notarial acts performed. The journal needs to be maintained for at least 10 years after the last notarial act performed. If the notary is going to make an audio/video recording of the notarial act, then the notary must disclose to the person requesting the act that 1) the act will be recorded; 2) how the recording will be stored; and 3) that the person requesting the act consents or has previously consented to the recording. A notary is free to refuse to perform a remote notarization if the person requesting the act objects or refuses to consent to the recording. The notary may designate a custodian to either maintain the journal or retain the audio/video recording of the notarial act or both.

The notary “stamp” for a remote notarization shall, in additional to the traditional information, include information whether the notarial act was performed electronically*(see the discussion below regarding electronic notarization) or using a remote notarization platform.

In November of 2017, the SOS introduced SB 664 (which later was tie-barred to include SB 996, 997, 998 & 999). SB 664 is a bill that authorizes ELECTRONIC notarization (not to be confused with RON).

Electronic Notarization more similar to traditional “wet-ink” notarization than RON in that the notary and the principal would still appear in person (without the aid of any a/v technology) and the notary would confirm the identity of the principal the same way they do today.

The SOS viewed Electronic Notarization as a first step toward RON (how ironic that RON passed and E-Notarization has not). This bill package passed the Senate on June 6 and was sent to the House, where it is presently. If the House does not pass the package of bills and the Governor does not sign them, then they would have to be reintroduced next year. At this point, the only hurdle to whether the SB 664 package passes seems be the limited number of sessions days left for the House to act before the end of the year.

Several other states already have passed laws enabling either RON, electronic notarization or both – Virginia, Montana, Texas, Nevada, Indiana Tennessee, Minnesota, and Vermont. Many other states have bills introduced that would authorize RON and electronic notarization. While there are still open questions on both electronic and remote notarization that will hopefully be answered in the coming year, many of our industry partners are embracing and looking forward to utilizing RON as it becomes available in each state. 2019 looks to be a busy year for remote notarization.