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

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

3. Oregon – Basic Principles
ORS 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

4. OREGON – BASIC PRINCIPLES
PERSONAL APPEARANCE REQUIRED
ORS :
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.

5. OREGON – BASIC PRINCIPLES
IDENTIFICATION OF INDIVIDUAL
Personal knowledge
ORS (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.

6. Oregon – basic principles
IDENTIFICATION OF INDIVIDUAL
Satisfactory evidence of identity
ORS (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 (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;

7. Oregon – basic principles
IDENTIFICATION OF INDIVIDUAL
Satisfactory evidence of identity
ORS (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 (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

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

9. 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[.]

10. 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[.]

11. 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.

12. 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.

13. 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.

14. 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

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

16. 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?

17. Federal – Inside the united states
ORS 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.

18. 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?

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

20. Abroad – Federal Authorities
ORS 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.

21. Abroad – Federal Authorities
ORS 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

22. Abroad – Federal Authorities
ORS (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.

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

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

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

26. 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

27. Abroad – united states diplomatic

28. Abroad – united states diplomatic

29. 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

30. 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)

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

32. North Korea Notary

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

35. 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.

36. 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 (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

37. 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 ]
9.Seal/stamp ... {of the authority giving the apostille}
10.Signature

38. Foreign notary -- apostille

39. Foreign notary -- apostille

40. 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

41. Electronic Signatures
ORS
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.

42. ELECTRONIC SIGNATURES
NOTARIZATION AND ACKNOWLEDGEMENT
ORS
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.

43. 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

44. 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.

45. 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.

46. 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

47. Virginia – remote notary
Code of Virginia § 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.

48. 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.

49. 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.

50. Constructive Notice
Grassmueck v. Bane
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”.

51. Questions?