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Patfry: Revised Uniform Law on Notarial Acts

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    Patfry: Revised Uniform Law on Notarial Acts Patfry: Revised Uniform Law on Notarial Acts Presentation Transcript

    • © 2010 Patricia Brumfield FryVisiting Professor of LawStetson University Law SchoolREVISED UNIFORM LAW ONNOTARIAL ACTS
    • Contact Information Patricia Brumfield Fry  Visiting Professor of Law Stetson University  Edward W. Hinton Professor of Law Emeritus, University of Missouri-Columbia Permanent Contact Information  P. O. Box 3880, Edgewood, NM 87015  Cell: 573 424 3515  Email: fryp@socket.net
    • RULONA Revised Uniform Law on Notarial Acts, approved by National Conference of Commissioners on Uniform State Laws -- July 2010 Supersedes Uniform Law on Notarial Acts, 1982
    • The Basics – Notarial Acts Acknowledgment – declaration person has signed Verification – declaration statement in record is true Witnessing or attesting signature Certifying or attesting copy is true Protest of negotiable instrument Others per state law
    • Who May Notarize Commissioned notaries public Notarial officer – notary public and other persons authorized by state law.  Judges  Court clerks  Attorneys in some states
    • Identification Individual making acknowledgment, verification or signature must appear personally before notary Identifying individual  Notary’s personal knowledge  Satisfactory evidence  Safe harbor: passport, driver’s license, govt. issued non-driver identification – current or expired not more than three years  Other gov’t issued identification containing signature or photograph and satisfactory to notarial officer  Verification of credible witness  Notarial officer may require additional information or identification credentials
    • Limits Notarial officer shall not perform act if notary or spouse is a party to record or in which either of them has a direct beneficial interest. Notarial officer may refuse if  Not satisfied individual is competent or has capacity to execute record  Not satisfied signature is knowingly and voluntarily made  In any other case unless refusal prohibited by law other than this act
    • Recognition of Notarial Acts Signature and title are prima facie evidence signature is genuine and individual holds title Signature and title of certain notarial officers conclusively establishes authority to act Same rules for recognition and challenge of notarial acts performed under authority of  Another state  Federally recognized Indian tribe or nation  Federal law  Foreign nation
    • Notarization of Electronic Record Notary public may select one or more tamper-evident technologies Must notify commissioning officer, identifying technology[ies] to be used, before first notarization of electronic record IF commissioning officer has adopted standards, technology must conform to the standards
    • Certificate of Notarial Act Notarial act must be evidenced by certificate  Executed contemporaneously with notarial act  Signed and dated by notarial officer Statute specifies content of certificate Includes short forms Stamp required on paper certificates Official stamp may be logically associated with electronic certificates
    • Other Provisions Applies to all notarial acts performed on or after effective date Safekeeping of stamping device Journals [optional provision] Education [optional provision] Qualifications for commission; revocation Authority of commissioning officer to establish rules and regulations
    • Further Information National Conference of Commissioners on Uniform State Laws (Uniform Law Conference) Kieran Marion, Legislative Counsel  111 N. Wabash Ave., Suite 1010, Chicago, IL 60602  312 450 6600  www.nccusl.org
    • © 2010 David E. EwanVice President & Associate General CounselNew Jersey Title insurance CompanyREVISED UNIFORM LAW ONNOTARIAL ACTS
    • They Make Me Say This The views expressed herein and anything I say are my views and opinions and not necessarily those of New Jersey Title Insurance Company, CATIC, PRIA, or any other organization. This presentation is intended for the use of the individual viewers seated in this room and may contain information that is confidential, privileged or unsuitable for overly sensitive persons with low self-esteem, no sense of humor or irrational religious beliefs.
    • RULONA eNotarization Provisions Section 19: Notification Regarding Performance of Notarial Acts on Electronic Record; Selection of Technology. Section 27: Rules
    • Section 19: Notification - Acts oneRecords; Selection of technologies (a) A notary public may select one or more tamper evident technologies to perform notarial acts with respect to electronic records. A person may not require a notary public to perform a notarial act with respect to an electronic record with a technology that the notary public has not selected. (b) Before a notary public performs the notary public’s initial notarial act with respect to an electronic record, a notary public shall notify the [commissioning officer or agency] that the notary public will be performing notarial acts with respect to electronic records and identify the technology the notary public intends to use. If the [commissioning officer or agency] has established standards for approval of technology pursuant to Section 27, the technology must conform to the standards. If the technology conforms to the standards, the [commissioning officer or agency] shall approve the use of the technology.
    • Section 27: Rules (a) The [commissioning officer or agency] may adopt rules to implement this [act]. Rules adopted regarding the performance of notarial acts with respect to electronic records must not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification. The rules may:  (1) prescribe the manner of performing notarial acts regarding tangible and electronic records;  (2) include provisions to ensure that any change to or tampering with a record bearing a certificate of a notarial act is self-evident;  (3) include provisions to ensure integrity in the creation, transmittal, storage, or authentication of electronic records or signatures;  ***  (5) include provisions to prevent fraud or mistake in the performance of notarial acts; [and]  ***
    • Section 27: Rules (b) In adopting, amending, or repealing rules about notarial acts with respect to electronic records, the [commissioning officer or agency] shall consider, so far as is consistent with this [act]:  (1) the most recent standards promulgated by national bodies, such as the National Association of Secretaries of State;  (2) standards, practices, and customs of other jurisdictions that substantially enact this [act]; and  (3) the views of interested persons and governmental officials and entities.
    • Notes on Rules: Notaries may refuse to adopt specific technologies for signing (probably not an employers technology, but possibly one required by a trading partner) Stay alert as to notary regulators’ interpretations Failure to enact rules only means a state is not regulating the e act, not that a notary cannot perform it.
    • What About Land Records? While real property laws vary from state to state, there are certain aspects which are constant. One constant is that, for a document affecting an interest in real property to be effective, it must be signed by an appropriate party. (ESIGN, UETA) Another constant is the general requirement that, to be recorded, the signed document must also be acknowledged before a specified person, usually a notary (or another person holding notarial powers pursuant to state law). (ESIGN, UETA, URPERA, RULONA)
    • State of Affairs: 11/1/2010 Approximately 3600 recording jurisdictions (mostly counties) in US. 578 jurisdictions (approx. 16%) in 36 states accept some form of electronic documents for recording.  Model 1 (scanned image) = 54  Model 2 (scanned image + XML) = 568  Model 3 (full eDocument) = 123
    • eRecording Jurisdictions WA 12 NH ME MT ND VT 3 2 15 7 0 OR MN 1 ID 27 WI NY 27 SD MA-6 WY 23 MI 0 0 7 RI-0 0 NE IA PA CT-0 CA NV 97 19 NJ-15 13 OH 5 12 UT IL IN 12 MD-0 18 CO 8 MO 11 WV DE-0 62 KS VA 22 KY 0 DC-1 6 7 0 NC HI AZ TN OK 14 5 12 AR 13 NM 15 SC 7 11 GA 3 AL MS 0 AK 0 LA 0 TX 0 0 40 FL 1 - 5 Jurisdictions 20 6 - 15 Jurisdictions Over 15 Jurisdictions 100% of JurisdictionsUpdated October 2010 578 Jurisdictions are Property Records Industry Association • www.pria.us accepting eRecordings©2010 Property Records Industry Association (PRIA)
    • All Are Not Created Equal Recording jurisdictions vary greatly In New England, it’s town by town Then, we have mega-counties such as Los Angeles, CA or Maricopa, AZ Other hybrids – metro NYC has 5 counties or boroughs but one city-wide register’s office  Bronx  Queens  Kings (Brooklyn)  New York (Manhattan)  Richmond (Staten Island)
    • eRecording Population Coverage WA 80% NH ME MT ND VT 45% 13% 35% 42% 0 OR MN 5% ID 27% WI NY 77% SD MA-39% WY 71% MI 0 0 36% RI-0 0 NE IA PA CT-0 CA NV 96% 60% NJ-68% 48% OH 46% 99% IL IN UT 28% MD-0 CO 21% 94% MO 70% WV DE-0 99% KS VA 46% KY 0 DC-100% 49% 33%7 0 NC HI AZ OK TN 45% 100% 82% 27% AR 43% NM SC 33% 67% GA 20% AL MS 0 AK 0 LA 0 TX 0 0 73% FL 63% 1-24% of Population 25-50% of Population Over 50% of Population 100% of Population 42.4% of the U.S. populationUpdated October 2010 Property Records Industry Association • www.pria.us live in eRecording jurisdictions©2010 Property Records Industry Association (PRIA)
    • David E. EwanNew Jersey Title Insurance Company973.952.0110dewan@njtic.com