August 1, 2018

by Brian Henry
Orlans PC
USFN Member (Delaware, Massachusetts, Michigan)

Legislation regarding notarization (remote and electronic) is discussed below:

House Bill 5811 — On April 17, 2018 this legislation was introduced, permitting a Michigan notary to “perform a notarial act using a remote electronic notarization platform.” Remote electronic notarization is often referred to as “webcam” notarization since webcams are the most common technology utilized for remote notarizations. Webcam notarization makes use of video and audio technology on the Internet to allow signers to appear by webcam and communicate with the notary at the time of the notarization. During a webcam notarization, the signer is not in the notary’s physical presence. HB 5811 specifies the guidelines and establishes the procedures to be followed for remote or webcam notarizations.

The legislation requires that the secretary of state and the Department of Technology, Management and Budget (DTMB) review and approve the remote electronic notarization platform, including features that permit remote credential analysis and identity proofing. The House passed the bill on May 16 and sent it to the Senate Committee on Banking and Financial Institutions. The Michigan Association of Realtors, the Michigan Chamber of Commerce, the Michigan Credit Union League, and the Michigan Creditors Bar Association all favor the legislation. The Michigan Land Title Association requested clarification on the process to be used to record instruments that are notarized remotely. HB 5811 can be reviewed at: http://legislature.mi.gov/doc.aspx?2018-HB-5811.

The bill passed both the House and Senate. It was then signed by the governor on June 28, filed with the secretary of state on July 2, and assigned Pa 330’18 on July 25, 2018 (with immediate effect). The secretary of state and DTMB could approve the remote notarization platform any time after January 1, 2019.

Almost every state has enacted some form of e-notarization law, whether through the adoption of the Uniform Electronic Transfer Act or by its own state law. Many of these laws are based upon the Model Electronic Notarization Act published in January 2017 by the National Notary Association. (See https://www.nationalnotary.org/knowledge-center/reference-library/model-notary-act/model-electronic-notarization-act.)

Senate Bill 664 — Introduced on November 28, 2017, this legislation permits a Michigan notary to “select 1 or more tamper-evident technologies to perform notarial acts electronically.” Similar to HB 5811, this bill requires the secretary of state and the DTMB to review and approve the technologies for the electronic performance of notarial acts. As of this writing, the bill is under review by the Committee on Banking and Financial Institutions.

Electronic or e-notarization differs from remote notarization. Electronic notary is essentially the same as traditional “paper” notarization except that the document being notarized is in digital form and the notary signs with an electronic signature. The signer appears before the notary. As mentioned earlier in this article, remote notarization allows a notary to authenticate the signing of a document remotely, using a technology platform. SB 664 can be viewed at: http://legislature.mi.gov/doc.aspx?2017-SB-0664.

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Summer USFN Report

Note for consideration of the USFN Award of Excellence: This article is a "Feature."