The Mortgage Bankers Association, the American Land Title Association, and the National Association of Realtors Publish Model Remote Notarization Executive Order

On July 1, 2020, the Mortgage Bankers Association (MBA) announced cooperation with the American Land Title Association (ALTA) and the National Association of Realtors (NAR) in the development of a model remote notarization executive order. Citing the patchwork activity across the country in reaction to the COVID-19 pandemic emergency and inconsistency across the executive orders, emergency legislation and existing legislation, the trade groups’ stated goal in publishing the order is to help ensure that new remote ink signed notarization (RIN) authorization language is crafted to provide the most legal certainty in real estate transactions.

MBA, ALTA, and NAR have been active in supporting Remote Online Notarization (RON) enabling statutes prior to the COVID-19 pandemic and still believe that passing RON in the remaining states without RON legislation is the ideal path. They also understand that there is an immediate need to safely close real estate transactions while they, and others, continue to pursue permanent RON legislation.

The model order includes enabling language for both RIN and RON on a temporary, emergency basis and includes several provisions common to orders put in place over the past several months. Some of these include a method for transmitting a RIN signed document between the signing party and the notary, audio-video recording requirements, and a 10-year retention period for the recording. Sample language to provide for an additional fee for remote notarizations is included, as well as language to help facilitate the recording of electronically signed and electronically notarized documents, including a sample notarial certificate of electronic documents.

Identifying the signing individual is key to a proper notarial act, and the method to facilitate that in a remote RIN or RON notarization under emergency orders adopted over the past several months has varied widely. The model order includes options for both technology enabled, identity proofing and the presentation of a government-issued identification credential remotely. Drafter’s notes point out that although the remote presentation of a government ID may be necessary on a temporary basis during the COVID-19 crisis, more secure identity validation is strongly encouraged for permanent RON enabling legislation.

Reciprocity language in the model order gives the same force and effect to a notarial act performed by a notary public commissioned under the laws of another state as a notarial act performed by a notary of the state adopting the order, including a notarial act “performed by a notary public commissioned under the laws of another state … for a remotely located individual who appears before the notary public by using communication technology.” While the order includes a limitation that requires the notary to be located within the state in which the order is issued, it does not include similar limiting language on the location of the signing party. This means that the language in the model order may potentially allow for remote notarizations to occur across state boundaries, if the state in which the notary is located does not restrict its notaries to perform remote notarizations for singing parties only in that state.

As existing emergency RIN and RON orders expire, the use of this proposed model order from the industry could provide more predictability and uniformity of procedures across the country for mortgage lenders and title companies, alike. This predictability will further enable the mortgage and real estate markets to continue to function safely for the duration of the pandemic and provide a method for remote notarization until permanent RON legislation can be enacted or implemented in states without an active RON statute.

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