13Dec
By: Phil On: December 13, 2016 In: Domestic Litigation, Legal Translation Comments: 0
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Are you aware that there is at least one online notary service that now claims it can notarize documents for you without ever having you appear before an actual notary and that such documents will be accepted nationwide? The validity and universal recognition of such notarizations, however, is suspect when the issue is examined more closely.

The online notary service at issue boasts that “[y]our notarized documents will be valid across the entire United States. Video evidence and digital logs ensure its validity” and that “[y]our document will look like it was notarized with pen and ink.”

The online notary service also claims that, as of July 1, 2012, it is now legal across the United States to use “webcam notarizations” in lieu of the traditional requirements inherent in obtaining a notary’s signature. But this view has been directly contradicted in official statements from several states and the national organization for notaries public. Moreover, this conclusion is highly suspect given the failure of recent failed Congressional attempts to universally legitimize a single state’s “webcam notarization.”

On July 1, 2012, Virginia became the first state to make it legal for a document to be signed by a person in a remote location and have that document notarized electronically by an e-notary using a webcam or similar audio-visual conference technology. And it is on this change in the law that the online notary company at issue is attempting to create their business model. Many other states, however, take a very different view on this precise issue. In fact, the California Secretary of State’s Office specifically opposes this practice and issued the following online warning:

A private company claims to have the first online notarization website and has sent misleading information and made false claims to California notaries public concerning a new online notarization service. The web-based platform purports to allow a person to submit copies of identification over the Internet and to use a webcam in lieu of a personal appearance in front of a notary public. Appearance via webcam does not meet the requirements for notarization in California.

California notaries public are authorized under current law to perform electronic notarizations as long as all the requirements for a traditional paper-based notarial act are met, including the use of a seal for all but two specific documents used in real estate transactions. California law requires a person to appear personally before a notary public to obtain notarial acts like acknowledgments or jurats. This means the party must be physically present before the notary public. A video image or other form of non-physical representation is not a personal appearance in front of a notary public under current state or federal laws. The technology solution offered by this private company does not comply with California law.

Other states, including Colorado and Wisconsin, have also issued similar statements against this type of long-distance electronic notarization.

Additionally, the National Association of Secretaries of State (“NASS”), has issued a policy statement on “electronic notarization” that undermines the claims made by the online notary service. NASS stated the following:

[A]ll states require that an individual seeking to have a document electronically notarized appear in person before the notary at the time of notarization. Colorado’s law specifically emphasizes that electronic notarization is not remote notarization–the signer must appear in the presence of the notary and swear, affirm, or acknowledge the electronic document being notarized.

Finally, states are grappling with federal and state proposals to make the interstate recognition of notarizations easier, simpler, and clearer. Congress passed the Interstate Recognition of Notarizations (“IRON”) Act in 2010 amidst a firestorm of media controversy over fraudulent foreclosures, resulting in a presidential veto of the law. While all states already provide for recognition of documents notarized in other states, the scope of these laws varies. Many also rely upon court decisions, rules of evidence and the Full Faith and Credit Clause of the U.S. Constitution in determining their procedures for this process.

Although the IRON Act was vetoed, there is growing sentiment that the bill may be introduced again in the 112th Congress. For now, the reaction in the notary community is mixed.

Issues and trends in State Notary Regulation, National Association of Secretaries of State Report (Jan. 13, 2011).

Thus, although it would appear at first blush that the Full Faith and Credit Clause of the US Constitution might validate the use of Virginia webcam-based notarizations in other states, it is clear that Congress itself found it necessary to try to put this into law rather than relying on this well-established constitutional law principle. To date, Congress has failed in getting this done.

So, while at least one e-notary company may offer you the chance to notarize your documents without signing in the actual presence of a notary, you may be much better off not taking a chance and just showing up in person.

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