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 March 2020, only 23 states have laws that enable their notaries to conduct remote notarizations. The states that have implemented Remote Online Notarization (“RON”) statutes include: Arizona1, Florida, Idaho, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Dakota2, 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 23 states that have already adopted RON statutes, documents executed and notarized remotely and electronically are valid and binding, provided that the notary is physically located in the state of execution for the applicable party. Besides the aforementioned 23 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 conditions3 are met45. This directive was originally effective through April 18, 20206 and has now been extended to May June 515, 2020 by Executive Oder 202.2187. 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, as of March 27, 2020, the physical presence requirement for notarizations in Colorado has been suspended under its Executive Order D 2020 019. Also, the Colorado Secretary of State has been authorized to issue temporary emergency rules for remote online notarization through at least May 30, 2020 by its Executive Order D 2020 04489. 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.10
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 transactions11. Beginning April 20, 2020, Pennsylvania temporarily expanded remote notarization for all Pennsylvania notaries public, pursuant to Act 15 of 2020 (S.B. 841)12. This authorization will expire 60 days after termination or expiration of the COVID-19 disaster emergency issued by Governor Wolf13.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 requirements14; (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 met15. 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.16” 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 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 authentication17. 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 below18.
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-recording19”) 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 table20and 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 |
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Jefferson County
|
EREC
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Madison County
|
EREC
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Marshall County
|
EREC
|
|
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CALIFORNIA |
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Alhemarle County
|
DLYD
|
Contra Costa County
|
EREC
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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
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Sonoma County
|
EREC + MAIL
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Tulare County
|
EREC + MAIL
|
Yuba County
|
EREC + MAIL
|
|
|
COLORADO |
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Adams County
|
CLSD
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Boulder County
|
EREC
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Custer County
|
CLSD
|
Delta County
|
DLYD
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Douglas County
|
EREC + MAIL
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Eagle County
|
DLYD
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Freemont County
|
EREC
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Gunnison County
|
EREC + MAIL
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Jefferson County
|
CLSD
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Morgan County
|
EREC + MAIL, plus drop box
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Pueblo County
|
EREC + MAIL
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Saguache County
|
EREC + MAIL, plus drop box
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Summit County
|
EREC
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Weld County
|
EREC
|
|
|
|
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CONNECTICUT |
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Town of Colchester
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EREC + MAIL, plus drop box
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Town of Glastonbury
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EREC + MAIL, in-person by appt.
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Town of Durham
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EREC + MAIL, in-person by appt.
|
|
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FLORIDA |
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Duval County
|
DLYD
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Miami-Dade County
|
EREC + MAIL
|
|
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GEORGIA |
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Clayton County
|
CLSD
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Cobb County
|
EREC + MAIL
|
|
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IDAHO |
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Valley County
|
EREC
|
|
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ILLINOIS |
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Carroll County
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EREC + MAIL, mail-in starting 3/20
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Lake County
|
EREC + MAIL, plus drop box
|
|
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INDIANA
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Blackford County
|
EREC + MAIL
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Crawford County
|
EREC
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Pike County
|
EREC + MAIL
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Whitley County
|
EREC + MAIL, plus drop box
|
|
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IOWA
|
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Allamakee County
|
EREC + MAIL
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Bremer County
|
EREC + MAIL
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Carroll County
|
EREC + MAIL
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Cass County
|
EREC + MAIL
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Cedar County
|
EREC + MAIL
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Cherokee County
|
EREC + MAIL
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Clarke County
|
EREC + MAIL
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Clayton County
|
EREC + MAIL
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Crawford County
|
EREC + MAIL
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Dallas County
|
EREC + MAIL
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Dickinson County
|
EREC + MAIL
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Dubuque County
|
EREC + MAIL
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Emmet County
|
EREC + MAIL
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Franklin County
|
EREC + MAIL
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Guthrie County
|
EREC + MAIL
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Hamilton County
|
EREC + MAIL
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Henry County
|
EREC + MAIL
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Humboldt County
|
EREC + MAIL
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Ida County
|
EREC + MAIL
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Jackson County
|
EREC + MAIL
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Jones County
|
EREC + MAIL
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Linn County
|
EREC + MAIL
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Lucas County
|
EREC + MAIL
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Jasper County
|
EREC + MAIL
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Johnson County
|
EREC + MAIL
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Lee County
|
EREC + MAIL, plus drop box. Scheduled to reopen 4/13
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Louisa County
|
EREC + MAIL, plus drop box
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Madison County
|
DLYD
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Marion County
|
EREC + MAIL
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Marshall County
|
EREC + MAIL, plus by appt. on a case-by-case basis
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Pottawattamie County
|
EREC + MAIL
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Ringgold County
|
EREC + MAIL, plus drop box
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Warren County
|
EREC + MAIL, plus drop box
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Washington County
|
EREC + MAIL
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Wayne County
|
EREC + MAIL
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Webster County
|
EREC + MAIL
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Winnebago County
|
EREC + MAIL
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Worth County
|
EREC + MAIL
|
|
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KANSAS
|
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Bourbon County
|
EREC
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Franklin County
|
EREC + MAIL
|
|
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MAINE
|
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Kennebec County
|
EREC + MAIL, plus drop box
|
|
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MARYLAND
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ALL Maryland Counties
|
EREC
|
|
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MICHIGAN
|
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Calhoun County
|
EREC
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Genesee County
|
EREC + MAIL, scheduled to reopen on 4/6
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Grand Traverse County
|
EREC + MAIL, plus drop box
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Oscoda County
|
CLSD
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Muskegon County
|
CLSD
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Washtenaw County
|
CLSD
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Wayne County
|
CLSD
|
|
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MINNESOTA
|
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Arenac County
|
EREC + MAIL
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Cass County
|
EREC + MAIL, plus drop boxes
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Hennepin County
|
EREC
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Penobscot County
|
EREC + MAIL, plus drop box
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Piscataquis County
|
EREC + MAIL, plus drop box
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Todd County
|
EREC + MAIL
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Weld County
|
EREC + MAIL
|
|
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MISSOURI
|
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Platte County
|
EREC + MAIL
|
|
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MONTANA
|
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Missoula County
|
EREC, for urgent issues or plats, contact the county
|
|
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NEBRASKA
|
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Keith County
|
EREC + MAIL
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Washington County
|
EREC + MAIL
|
|
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NEW JERSEY
|
|
Bergen County
|
EREC
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Burlington County
|
EREC
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Camden County
|
EREC
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Cape May County
|
EREC + MAIL
|
Cumberland County
|
EREC
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Essex county
|
EREC
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Hudson County
|
EREC
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Hunterdon County
|
EREC
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Mercer County
|
CLSD
|
Middlesex County
|
DLYD
|
Monmouth County
|
EREC
|
Ocean County
|
EREC
|
Somerset County
|
EREC + MAIL
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Union County
|
EREC + MAIL, in-person by appt.
|
Warren County
|
EREC
|
|
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NEW YORK
|
|
Broome County
|
EREC
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Columbia County
|
DLYD
|
Cortland County
|
DLYD
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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
|
|
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NORTH CAROLINA
|
|
Durham County
|
Closed for e-recording but open for walk-ins
|
Pasquotank County
|
CLSD
|
|
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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
|
|
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OKLAHOMA
|
|
Comanche County
|
EREC + MAIL
|
Rogers County
|
EREC + MAIL
|
|
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OREGON
|
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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
|
|
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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: 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.
3: 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.
4: 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.
5: 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
6: 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
7: https://www.governor.ny.gov/news/no-20228-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency
8: https://www.sos.state.co.us/pubs/notary/FAQ/remote.html
9: However, election-related documents such as circular petitions and voting petitions may not be notarized using RON in Colorado.
10: 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
11: 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
12: https://www.dos.pa.gov/OtherServices/Notaries/NotaryServices/Documents/Update/Remote%20notarization%20SB%20841.pdf
13: https://www.governor.pa.gov/wp-content/uploads/2020/03/20200306-COVID19-Digital-Proclamation.pdf
14: Those requirements are:
- 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;
- 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;
- 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;
- 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.
15: https://governor.delaware.gov/health-soe/eleventh-state-of-emergency/
16: https://notary.delaware.gov/covid-19-coronavirus/
17: 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
18: https://singlefamily.fanniemae.com/media/22316/display
https://sf.freddiemac.com/faqs/covid-19-selling-faqs#remote-online-notarization-ron
19: 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.
20: Simplifile. Available at https://go.simplifile.com/en/covid-19-county-recording-status-and-faq. Status as of March 19, 2020.