Notarizing Documents: In and Outside of Oregon & on the Internet Oregon Land Title Association Education Seminar March 11, 2017 Presented by: John Martin

NOTARIZING DOCUMENTS Agenda OREGON LAW – BASIC PRINCIPLES POLICY LIABILITY OTHER STATES FEDERAL FOREIGN INTERNET

Oregon – Basic Principles ORS 194.230 Requirements for Certain for Notarial Acts. (1) A notarial officer who takes an acknowledgment of a record shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the acknowledgment has the identity claimed and that the signature on the record is the signature of the individual. Identification Personal appearance Signature verification

OREGON – BASIC PRINCIPLES PERSONAL APPEARANCE REQUIRED ORS 194.235: If a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer.

OREGON – BASIC PRINCIPLES IDENTIFICATION OF INDIVIDUAL Personal knowledge ORS 194.240(1) A notarial officer has personal knowledge of the identity of an individual appearing before the officer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.

Oregon – basic principles IDENTIFICATION OF INDIVIDUAL Satisfactory evidence of identity ORS 194.240(2) A notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual: (a) By means of: (A) A United States passport or an officially recognized passport of a foreign country, or a driver license or identification card issued under ORS 807.400 (Issuance) or a comparable provision in another state, that is current or that expired not more than three years before performance of the notarial act; or (B) A military identification card, an identity card issued by a federally recognized Indian tribe or other document issued by the federal government or a state, county or local government that is current or that expired not more than three years before performance of the notarial act and that contains the signature and a photograph of the individual;

Oregon – basic principles IDENTIFICATION OF INDIVIDUAL Satisfactory evidence of identity ORS 194.240(2)(b) By a verification on oath or affirmation of a credible witness personally appearing before the officer and known to the officer or whom the officer can identify on the basis of: (A) A United States passport or an officially recognized passport of a foreign country, or a driver license or identification card issued under ORS 807.400 (Issuance) or a comparable provision in another state, that is current or that expired not more than three years before performance of the notarial act; or (B) A military identification card, an identity card issued by a federally recognized Indian tribe or other document issued by the federal government or a state, county or local government that is current or that expired not more than three years before performance of the notarial act and that contains the signature and a photograph of the individual

Oregon – basic principles IDENTIFICATION OF INDIVIDUAL Satisfactory evidence of identity ORS 194.240(c) Positively by examination or comparison of official government documents or records if the individual is confined in a correctional facility.

Why does it matter Policy Coverage Covered Risk – From the 2006 ALTA Owner’s and Loan policies: 2.     Any defect in or lien or encumbrance on the Title.  This Covered Risk includes but is not limited to insurance against loss from (a)   A defect in the Title caused by (i) forgery, . . . incompetency, incapacity, or impersonation; . . . (iii) a document affecting Title not properly . . . executed, . . . acknowledged, [or] notarized[.]

Why does it matter Policy Coverage (continued) Covered Risk – From the 2013 Homeowner’s policy: 6. Your Title is defective. Some of these defects are: . . . c. A document upon which Your Title is based is invalid because it was not properly signed [or] acknowledged[.]

Other States ORS 194.260 Notarial act in another state. (1) A notarial act performed in another state has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed in the other state is performed by: (a) A notary public of the other state; (b) A judge of the other state or a clerk of a court of the other state; or (c) Any other individual authorized by the law of the other state to perform the notarial act.

Other States ORS 194.260 Notarial act in another state. (2) The signature and title of an individual performing a notarial act in another state are prima facie evidence that the signature is genuine and that the individual holds the designated title. (3) The signature and title of a notarial officer described in subsection (1) of this section conclusively establish the authority of the officer to perform the notarial act.

You can take their word (or stamp) for it, or you can verify. Other States How do you know if someone is “[a] notary public of that jurisdiction”? You can take their word (or stamp) for it, or you can verify.

Other states In the offices they choose to regulate notaries, the states are all over the map. Alaska – Office of the Lieutenant Governor, Alaska Public Notary Office California – Secretary of State Florida – Department of State, Division of Corporations New York – Department of State, Division of Licensing Services Oregon – Secretary of State

Other States Just Google: Verify [state] notary license:

Other states How about accepting notarization by: (b) A judge, clerk, or deputy clerk of a court of that jurisdiction; or (c) Any other person authorized by the law of that jurisdiction to perform notarial acts. Why would you want to? For (b) – there is no central registration For (c) – who is going to do the research into the law of Louisiana, for example?

Federal – Inside the united states ORS 194.270 Notarial acts under federal authority. (1) A notarial act performed under federal law has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed under federal law is performed by: (a) A judge or a clerk of a court; (b) An individual in military service, or performing duties under the authority of the military service, who is authorized to perform notarial acts under federal law; (c) An individual designated a notarizing officer by the United States Department of State for performing notarial acts overseas; or (d) Any other individual authorized by federal law to perform the notarial act.

Federal – Inside the United states (a) A judge, clerk, or deputy clerk of a court; Good luck (b) A commissioned officer in active service with the military forces of the United States; Will only work for military personnel and retirees and their dependents (d) Any other person authorized by federal law to perform notarial acts. Main authority we see is 10 USC § 1044a, identifying persons who can notarize documents for persons entitled to military legal assistance. Other than when your customer is in the military, why would you want to have a document acknowledged under federal law?

Preliminary question: Abroad Preliminary question: Will a lender involved in the transaction accept a document notarized outside the United States?

Abroad – Federal Authorities ORS 194.275 FOREIGN NOTORIAL ACTS (1) As used in this section, "foreign state" means a government other than the United States, a state or a federally recognized Indian tribe. (2) If a notarial act is performed under the authority of and in the jurisdiction of a foreign state or a constituent unit of the foreign state or is performed under the authority of a multinational or international governmental organization, the act has the same effect under the law of this state as if performed by a notarial officer of this state. (3) If the title of office and indication of authority to perform notarial acts in a foreign state appears in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established. (4) The signature and official stamp of an individual holding an office described in subsection (3) of this section are prima facie evidence that the signature is genuine and the individual holds the designated title.

Abroad – Federal Authorities ORS 194.275 FOREIGN NOTORIAL ACTS APOSTILLE (5) An apostille in the form prescribed by the Hague Convention of October 5, 1961, and issued by a foreign state party to the convention conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office

Abroad – Federal Authorities ORS 194.275(6) FOREIGN NOTORIAL ACTS US Consular authentication A consular authentication issued by an individual designated by the United States Department of State as a notarizing officer for performing notarial acts overseas and attached to the record with respect to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

By American personnel under US law Military Consular Abroad By American personnel under US law Military Consular Foreign notaries acting under foreign law

Abroad – United states military Typically for military personnel, retirees, and their dependents under 10 USC § 1044a

Abroad – United states diplomatic Great, if it can be accomplished.

Abroad – united states diplomatic In the United Kingdom, only three options are at: US Embassy, London US Consulate, Edinburgh US Consulate, Belfast And try getting an appointment

Abroad – united states diplomatic

Abroad – united states diplomatic

Abroad – foreign notary How to identify persons in foreign countries who can perform notarial acts? (a) A notary public or notary; (b) A judge, clerk, or deputy clerk of a court of record; or (c) Any other person authorized by the law of that jurisdiction to perform notarial acts. In many countries, attorneys are the main parties performing notarial acts. Examples: Canada, Germany, Philippines

Abroad – foreign notary Verifying you have the right person performing the notarial act is a two step process. Figuring out who can notarize documents in that country Confirming that the notary proffered is a legitimate notary If your company has someone who will do this for you, great. Otherwise, you must either: Sleuth it out on your own (Wikipedia, Google, etc.) Rely upon accepted verification (consular, apostille)

How comfortable are you with being responsible to verify a specific notary in a particular country?

North Korea Notary

If you are going to verify on your own, don’t just look in official sources. Google the notary’s name.

Foreign notary -- apostille What the heck is an apostille? Or, as Wikipedia says: Not to be confused with Apostle (messenger, esp. Christian); or an apostil, meaning a marginal note or gloss.

Foreign notary -- apostille The apostille itself is a stamp or printed form consisting of 10 numbered standard fields. On the top is the text APOSTILLE, under which the text Convention de La Haye du 5 octobre 1961 (French for Hague Convention of 5 October 1961) is placed. This title must be written in French for the Apostille to be valid (article 4 of the Convention). In the numbered fields the following information is added (may be in official language of the authority which issues it or in a second language): . . . From Wikipedia – Apostille Convention

Foreign notary – apostille 1.Country ... [e.g. Hong Kong, China] This public document 2.has been signed by [e.g. Henry Cho] 3.acting in the capacity of [e.g. Notary Public] 4.bears the seal/stamp of [e.g. High Court of Hong Kong] Certified 5.at [e.g. Hong Kong] 6.the ... [e.g. 16 April 2014] 7.by ... [e.g. the governor of the special administrative district of Hong Kong, China] 8.No ... [e.g. 2536218517] 9.Seal/stamp ... {of the authority giving the apostille} 10.Signature

Foreign notary -- apostille

Foreign notary -- apostille

Foreign notary -- apostille Some countries where available: Australia European Union – all countries, even the United Kingdom Japan Mexico Some countries where not available: Canada China (except Hong Kong & Macao) South Korea Philippines

Electronic Signatures ORS 84.019 LEGAL RECOGNITION OF ELECTRONIC RECORDS, ELECTRONIC SIGANTURES AND ELECTRONIOC CONTRACTS (1) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. (2) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. (3) If a law requires a record to be in writing, an electronic record satisfies the law. (4) If a law requires a signature, an electronic signature satisfies the law.

ELECTRONIC SIGNATURES NOTARIZATION AND ACKNOWLEDGEMENT ORS 84.031 If a law requires a signature or record to be notarized, acknowledged, verified or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.

Electronic Notarization versus REMOTE NOTARIZATION Notary, together with and in the presence of the consumer has the consumer electronically sign the electronic document; Notary electronically applies electronic signature and notary seal to electronic document. Technology issues – current programs may not allow notary stamp to be imbedded into electronic document. Probably not recordable without correct stamp. Possible work arounds, but no standard in place yet

Electronic Notarization versus REMOTE NOTARIZATION Notary is not in the same room as the signor Notary uses Skype or similar technology to communicate with signor and conduct the signing Parties sign electronically and notary adds electronic stamp and signature.

Montana – remote notary Starting October 1, 2015 – Remote notarization authorized via real-time, two-way audio-video communication – web cam Identification: signer personally known to notary, or identified by credible witness Documentary evidence to identify signer is NOT OK Location of notary - Montana Signer is legal resident of Montana (except proxy marriage) Transaction type (only four authorized) Real property located in Montana Because of location limitation, not likely to encounter.

Virginia – remote notary Electronic notarization vs. Remote notarization Permits Virginia notaries to perform notarial acts via live-feed videoconference No requirement that signer be in Virginia No requirement that seal disclose remote notarization process used Look for “Electronic Notary Public” in the notary’s seal

Virginia – remote notary Code of Virginia § 47.1-13 Jurisdiction; powers outside the Commonwealth . . . B. Any notary commissioned pursuant to this title may likewise perform notarial acts outside the Commonwealth, where such notarial acts are performed in accordance with this chapter. D. An electronic notarial act performed in accordance with this chapter shall be deemed to have been performed within the Commonwealth and is governed by Virginia law.

Virginia remote notary What to do? Where an “Electronic Notary Seal” has been used, ask notary if remote notary procedures were also used. Follow your underwriter’s guidelines.

Remote notary – it’s coming From letter to National Association of Secretaries of State Remote Notarization Task Force jointly submitted by Freddie Mac and Fannie Mae, June 9, 2016: The GSEs strongly support the removal of barriers to electronic notarization, not only electronic notarization in the physical presence of the notary, but also remote electronic notarization, whereby the requirement for the “personal appearance” or the “presence” of the signer is satisfied via a live audio and video connection. In seeking to make the execution of mortgage closing documents more convenient for borrowers, the GSEs believe that the application of technology to the notary process enables the opportunity to provide a more flexible and convenient borrower experience, while improving the assurance, authentication, security, and documentation of notarial acts.

Constructive Notice Grassmueck v. Bane http://www.orb.uscourts.gov/sites/orb/files/documents/opinions/688-5183- R.pdf “It has been the law in Oregon for over 100 years that the recordation of an instrument which contains a defective notarial acknowledgement does not provide constructive notice, the instrument is not entitled to be recorded”.

Questions?