[UPDATED] Coronavirus: US Federal and state governments work quickly to enable remote online notarization and SBA PPP loans to meet global crisis

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Financial Services Alert

COVID-19 Alert

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(This alert contains information which is current as of June 2, 2020. We are actively monitoring state and federal activities in this rapidly changing area and will update this alert on a weekly basis. Please contact the authors of this alert for the most current information.)

As more businesses are forced to work remotely due to the coronavirus disease 2019 (COVID-19) crisis, several federal and state governments are moving quickly to enable fully electronic processes to keep businesses operating.

On March 18, 2020, Senate Bill 3533, the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020 (the “SECURE Act”), was introduced as bipartisan legislation to authorize and establish minimum standards for electronic and remote notarizations that occur in or affect interstate commerce. A substantially identical version of the bill was introduced in the House on March 23, 2020 as H.R.6364. If the SECURE Act becomes law in its current form, it would authorize every notary in the US to perform remote online notarizations (RON) using audio-visual communications and tamper-evident technology in connection with interstate transactions.

Currently, there are only 24 states that have enacted some form of remote online notarization (RON) law: Alaska, Arizona, Florida, Idaho, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Dakota*, Tennessee, Texas, Utah, Vermont, Virginia, Washington and Wisconsin.

The basic components of each state’s RON law are to:

  • Allow notarial acts to be completed using audio-video communication, including acts where the signer is located outside the state in which the notary is authorized to operate;
  • Require that the notary authenticate the person signing; and
  • Require recording of the audio-video communication.*

The state RON laws are very detailed and vary with respect to, among other things, authentication, journaling and retention periods. (*The South Dakota RON law differs substantially from the others in that it enables the use of communication technology only "if the notarial officer: ... affixes the notarial officer's signature to the original tangible document executed by the [principal]" and only if the notary personally knows the principal.)

In states that have yet to enact RON or otherwise make their RON law effective, emergency short-term measures are being issued. The below chart reviews each state and any RON law and/or emergency order enacted in such state:

  • Alabama – On March 26, the Governor of Alabama issued a fourth supplemental state-of-emergency Proclamation which allows notaries who are licensed attorneys, or operating through licensed attorneys, to use videoconferencing programs to notarize signatures and confirm the signatures of witnesses, and all documents must be returned to the notary for certification and execution; on April 2, the Governor issued a fifth supplemental state-of-emergency Proclamation updating the prior Proclamation to permit all Alabama notices to notarize tangible paper documents using videoconferencing under specific guidelines [updated May 5].
  • Alaska –  On April 10 Alaska enacted SB241, which allows a will testator and witnesses to appear before a notary using audio video conferencing; on April 30, Alaska enacted bill HB124 enabling remote online notarization in the state [updated May 5];
  • Arizona -  On April 8, the Governor of Arizona issued Executive Order 2020-26 making immediately effective Arizona’s RON laws (A.R.S. § 41-371, et seq., effective July 1) and guidance enabling remote online notarization in the state;
  • Arkansas – On March 30, the Governor of Arkansas issued Executive Order 20-12 which suspends certain provisions of Arkansas notarial laws to enables certain types of notaries public (i) to meet the in-person requirement using real-time audio and visual means to notarize paper documents, as well as (ii) when serving as an eNotary under Arkansas law, to use real-time audio and visual means to meet the in-person requirement when notarizing electronic documents, provided that, in each case, the notary and the signer are both physically located in Arkansas at the time of signing, among other conditions;
  • California – No RON or COVID enactment to date; the California Secretary of State website endorses its residents’ use of mobile California notaries, and does not permit remote notarizations [updated May 5];
  • Colorado – On March 27, the Governor of Colorado issued Executive Order D 2020 019  (extended through April 30 by Executive Order D 2020 030 and through May 30 by Executive Order D 2020-047 and through June 28 by Executive Order D 2020-087) temporarily suspending the requirement to appear personally before notarial officers to perform notarizations, and the Secretary of State has issued temporary emergency rules and guidance to permit notarial officers to perform remote notarizations using real-time audio-video communication [updated June 2];
  • Connecticut – On March 23, the Governor of Connecticut issued Executive Order 7K immediately authorizing notarial acts to be performed on tangible paper documents utilizing audio-visual technology for persons physically located in Connecticut under certain conditions, and on March 30 issued Executive Order 7Q which supersedes Order 7K and adds provisions allowing attorneys to remotely administer a self-proving affidavit to a will [updated May 12];
  • Delaware – On April 15, the Governor of Delaware issued an Eleventh Modification of the Declaration of a State of Emergency for the State of Delaware which  enables the use of audio-visual technology for signers and notaries located in Delaware using identity verification by an attorney; however, the Delaware Secretary of State updated its website to include an endorsement of its residents’ use of remote notarization capabilities under the laws of states which permit remote notarizations [updated April 28];
  • District of Columbia – On May 13, the Mayor signed Bill 750 to add remote online notary provisions to the District’s version of the Revised Uniform Law on Notarial Acts [updated June 2];
  • Florida – Florida enacted RON effective January 1, with the execution of wills and estate planning documents using RON effective July 1;
  • Georgia – On March 31, the Governor of Georgia issued an Executive Order allowing the use of real-time audio-visual communication technology to meet the requirement for physical presence before a notary public; and on March 27, the Georgia Supreme Court issued an Order temporarily suspending the attorney Rules of Professional Conduct requirements for in person attendance at real estate closings, and enabling Georgia attorneys to participate in real estate closings using audio-video conferencing; 
  • Hawaii – On March 29, the Governor of Hawaii issued Executive Order 20-02 temporarily suspending the in-person requirement for notarizations and adopting rules enabling the use of audio-video technology to notarize paper documents;
  • Idaho – Idaho enacted RON effective January 1;
  • Illinois – On March 26, the Governor of Illinois issued Executive Order No. 14 (extended by Executive Order No. 33) waiving the in-person requirement for notarial acts, provided that the notarial act is performed in accordance with guidance issued by the Secretary of State, and allowing any act of witnessing required by Illinois law to be completed by two-way audio-visual communication, with conditions;
  • Indiana – Indiana adopted RON effective July 1, 2019. On March 31, the Governor issued Executive Order 20-15 which allowed for the retroactive application of agency regulations, and the Secretary of State promulgated regulations retroactively effective as of March 31 [updated April 28];
  • Iowa – On March 22, the Governor of Iowa issued a Proclamation of Disaster Emergency which enabled Iowa notaries to perform remote online notarizations in accordance with guidance of the Iowa Secretary of State and compliance with section 6 of Iowa Senate bill SF475 regarding notarial acts performed for remotely located individuals (which becomes effective July 1), and subsequently extended the state of emergency through May 27 [updated May 5];
  • Kansas - On April 9, Governor of Kansas issued Executive Order 20-20 (extended through May 31 by Executive Order 20-28 and through June 13 by Executive Order 20-40) temporarily allowing notaries to utilize audio-video communication technology with respect to signers and witnesses’ execution of paper documents, including deeds, wills and powers of attorney [updated June 2];
  • Kentucky – On March 30, Kentucky enacted legislation (SB 150) which waives any state in-person requirement for notarizations, enabling notarizations to be performed via video teleconference in real time and permitting such paper documents to be signed or notarized in counterparts; and the state enacted RON effective January 1 for both electronic and tangible paper documents [updated April 28];
  • Louisiana – On March 26, the Governor of Louisiana issued Proclamation No. 37 JBE 2020 (extended by Proclamation No. 41 JBE 2020) waiving the state’s in-person appearance requirement and enabling notarizations using audio-visual technology, with certain exclusions for the execution of trusts and other instruments, and requiring the recordation of such notarized instruments with a certification from the notary that the tangible copy is accurate;
  • Maine - On April 8, the Governor of Maine issued Executive Order 37 to temporarily enable the use of two-way audio-video communication technology to perform nearly all notarial acts, including estate planning instruments, using paper instruments in accordance with certain restrictions;
  • Maryland – On March 30, the Governor of Maryland issued Executive Order number 20-03-30-04 temporarily waiving the in-person requirement for notarizations and allowing notarizations utilizing communication technology, subject to guidance of the Secretary of State; on March 18, the Maryland Court of Appeals enacted an administrative order expressly accepting electronic records and signatures, and electronic notarial acts, created in accordance with the Maryland UETA for filing in land records in those counties utilizing the Simplifile application; and Maryland enacted RON effective October 1, 2020 [updated May 19];
  • Massachusetts – On April 23, Massachusetts enacted S.2645 authorizing notaries to perform remote ink notarizations during the Governor’s declaration of a state-of-emergency [updated May 5];
  • Michigan - On April 8, the Governor of Michigan issued Executive Order 2020-41 temporarily waiving strict compliance with UETA and Michigan notarial laws by governmental agencies and the general public to enable electronic notarizations and allow remote electronic notarizations utilizing two-way real-time audiovisual technology, and the Secretary of State has issued guidance; and Michigan enacted RON effective September 20, 2018 [updated April 21];
  • Minnesota – Minnesota enacted RON effective January 1, 2019;
  • Mississippi - On April 6, the Governor of Mississippi issued Executive Order 1467 temporarily suspending the in-person requirement and enabling notarizations to be performed using simultaneous audio-video communication technology on paper or electronic documents for the duration of the COVID 19 event plus 14 days, and the Secretary of State has issued related guidance;
  • Missouri – On April 6, the Governor of Missouri issued Executive Order 20-08 (extended through June 15 by Executive Order 20-10) authorizing, through May 15, audio-video technology to be used to satisfy the in-person requirement for notarial acts for both paper and electronic documents, including wills, trusts and powers of attorney, provided that certain conditions are met, and the Secretary of State has issued guidance [updated June 2];
  • Montana – Montana enacted RON effective May 4, 2015, which was updated effective October 1, 2019; and effective April 8 the Montana Secretary of State adopted emergency rules allowing flexibility with the appearance of notarial stamp when used on RON acts [updated May 5];
  • Nebraska – On April 1, the Governor of Nebraska issued Executive Order No. 20-13 immediately enabling LB 186 (effective July 1) to implement remote online notarizations in the state, and the Secretary of State issued on April 2 Emergency Regulations [updated April 28];
  • Nevada – Nevada enacted RON effective July 1, 2018;
  • New Hampshire – On March 23, the Governor of New Hampshire issued Emergency Order #11 to Executive Order 2020-4 which authorizes notarial acts using audio-visual technology, provided that the signer mails a copy of the signed documents to the notary for certification and the official date and time of notarization shall be the witnessing of the signature using the audio-visual technology;
  • New Jersey – On April 14, New Jersey enacted AB 3903 enabling remote online notarization in the state for the duration of the COVID-19 pandemic, and the Division of Revenue and Enterprise Services issued related guidance [updated June 2];
  • New Mexico – On March 30, the Governor of New Mexico issued Executive Order 2020-15 directing the Notary Compliance and Enforcement Unit to not recommend any discipline for any notary public performing a notarial act using audio-video technology, and notarizing a legible copy of the signed document delivered by the signer either by fax or electronic means, and the Secretary of State has issued guidance [updated April 28];
  • New York – On March 19, the Governor of New York issued Executive Order 202.7 (extended by Executive Order 202.14 and further extended through June 6 by Executive Order 202.28) immediately authorizing notarial acts to be performed utilizing audio-visual technology under certain conditions and on March 31 the New York Secretary of State issued updated guidance clarifying that order, including allowing 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 [updated June 2];
  • North Carolina – On May 4, North Carolina enacted S.704 which allows notaries to perform an “emergency video notarization” using video conference technology on tangible paper documents under certain requirements until August 1, and the Secretary of State has provided guidance [updated May 12];
  • North Dakota – North Dakota enacted RON effective March 8, 2019; and the Secretary of State has updated its website to provide guidance [updated May 5];
  • Ohio – Ohio enacted RON effective September 18, 2019;
  • Oklahoma – Oklahoma enacted RON effective January 1;
  • Oregon – No RON or COVID enactment to date; but the Secretary of State has issued safety tips for notarizations conducted during the COVID-19 pandemic [updated May 12];
  • Pennsylvania – On April 20, Pennsylvania enacted SB841 (Act 15) to enable remote online notarization in the state with respect to all documents, in tangible or electronic form, during the COVID-19 pandemic, and the Department of State issued related guidance, which replaces prior announcements and guidance [updated April 28];
  • Rhode Island – Effective April 3, the Rhode Island Secretary of State and the Governor have authorized remote online notarization in accordance with guidance of the Secretary of State, updated Standards of Conduct and the requirements of R.I. Gen. Laws Chapter 42-30.1 [updated April 21];
  • South Carolina – No RON or COVID enactment to date;
  • South Dakota – South Dakota enacted its extremely limited version of RON effective March 18, 2019 (see * above);
  • Tennessee – On April 9 , the Tennessee Governor issued Executive Order 26 (extended by Executive Order 37) expanding the use of remote notarization and witnessing on certain estate planning documents, which must be in tangible, paper form [updated May 19]; and Tennessee enacted RON effective July 1, 2019;
  • Texas - On April 8, the Governor of Texas suspended various laws to the extent necessary to allow for appearance before a notary public via teleconference to execute tangible paper documents, including those related to the execution of self-proved wills and medical powers of attorney, and the Secretary of State and the Office of Attorney General issued guidance [updated May 19]; Texas enacted RON effective July 1, 2018;
  • Utah – Utah enacted RON effective November 1, 2019;
  • Vermont – The Vermont Secretary of State issued emergency administrative rules permitting remote notarization of tangible paper documents under certain restrictions for 180 days to address the COVID 19 event and guidance under such rules;
    Vermont further enacted
    SB114 on April 28 enabling the witnessing of a power of attorney to be conducted under the emergency administrative rules and filed in land records and enacted SB316 the same day to enable execution of self-proving wills using remote notarization; and Vermont enacted its RON law effective July 1, 2019; however, RON is not yet implemented due to the failure of the Vermont Secretary of State to issue regulations and guidance [updated May 12];
  • Virginia enacted RON effective July 1, 2011 [updated May 5];
  • Washington - On March 26, the Governor of Washington issued Proclamation 20-27 (extended to May 31 by Proclamation 20-27.2 and extended through June 17 by Proclamation 20-27.3)  making remote online notarization immediately effective in Washington under SB5641 (effective October 1) for the duration of the COVID 19 event, and the Washington Department of Labor issued emergency rules to implement the Proclamation [updated June 2];
  • West Virginia - On March 25, the Governor of West Virginia issued Executive Order 11-20 suspending the in-person requirement for notarizations, and on March 27 the Secretary of State adopted emergency rules enabling remote online notarization under certain conditions (which rules were amended on March 31);
  • Wisconsin – On March 18, the Wisconsin Department of Financial Institutions issued emergency guidance immediately authorizing remote online notarizations in the state and published emergency rules effective May 9 [updated June 2]; and Wisconsin enacted RON effective May 1; and
  • Wyoming - On March 24, the Wyoming Secretary of State issued guidance allowing remote online notarization during the COVID event.

Moreover, Fannie Mae has issued updated guidance to lenders on addressing mortgage origination issues during the COVID 19 event, including authorizing lenders to sell loans with remotely notarized loan documents in certain designates states and under specified conditions. Fannie Mae also issued on April 14 guidance on “Remote-ink notarizations” authorized by emergency order [updated April 21]. Freddie Mac issued its own guidance to sellers on the impact of COVID-19 on borrowers and the mortgage origination process which includes guidance related to acceptable uses of remote online notarizations, and it has updated such guidance.

Additionally, on April 21, MISMO, a mortgage industry standards organization, announced a new remote online notarization certification program for RON providers and mortgage industry participants. The cost to obtain certification is $5,000 [updated April 28].

Further, Fidelity National Title Insurance Company, Chicago Title Insurance Company, Alamo Title Insurance, National Title Insurance of New York, and Commonwealth Land Title Insurance Company released a bulletin on March 18 titled “Emergency Exemptions to Remote Online Notarization Procedures” that allows RON to be available, provided certain requirements are met, as an option for properties located in all states and the District of Columbia with a proposed policy amount of $1 million or less (and for higher amounts on a case-by-case basis). This emergency exemption will be available through April 30, 2020.

Additionally, on March 27, the Veterans Benefits Administration issued Circular 26-20-10 making VA loans for which electronic notarization was used as a part of an eClosing, including IPEN and RON, eligible for guaranty provided that the notarization is valid and effective under applicable law and regulations.

The Department of Housing and Urban Development has applauded the efforts of the states and other agencies to adopt and implement IPEN and RON during the COVID 19 crisis, and on March 27, requested the Conference of State Bank Supervisors to “secure additional flexibilities, wherever possible, to facilitate the full functioning of the real estate mortgage market within the confines of the President’s directives to avoid public interactions whenever possible.”

On May 13, the Consumer Financial Protection Bureau (CFPB) published a compliance aid titled “Open-End (not Home-Secured) Rules FAQs related to the COVID-19 Pandemic” that, in part, addresses engaging with consumers electronically during COVID-19. Specifically, the CFPB states that creditors may be able to expedite consumer communication by using electronic means to deliver required disclosures so long as the creditor complies with ESIGN’s consumer consent provisions. The CFPB notes that ESIGN does not allow a consumer to provide oral consent but that “creditors could obtain a consumer’s email address over the phone and contact the consumer through the provided email address to obtain consent by, for example, providing a hyperlink through which a consumer might agree to electronic disclosure.”

Other notarial acts are also being made available on a remote basis using audio-visual communication technology, such as the swearing-in of witnesses (see Supreme Court of Florida Administrative Order No. AOSC20-16), and the general conduct of court proceedings (see Pennsylvania Supreme Court Order dated March 16).

To keep current on the status of remote online notarization across the US, please contact:

Margo Tank (margo.tank@dlapiper.com), David Whitaker (david.whitaker@dlapiper.com),

Liz Caires (liz.caires@dlapiper.com) or Andrew Grant (andrew.grant@dlapiper.com).

We send our thanks and appreciation to Marc Aronson for his contributions to the information provided in this alert.

The MBA Compliance Essentials Remote Online Notarization State Surveys, developed by DLA Piper, provides a comprehensive look at RON requirements in each state that has enacted RON legislation and also includes detailed requirements on COVID-19 Executive Orders and emergency legislation. These fully editable surveys are organized by category of requirements, including registration, technology, seal and signature, certificates of RON acts, journal, authentication, session, recording, and additional requirements. Companies can purchase the full package which includes surveys for all states that have enacted RON legislation along with a matrix summarizing state requirements, or companies can purchase information about individual states as needed.  

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This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.