Saturday, April 16, 2016

Consumer Article: Should you have speeding ticket affidavits, loan documents, or deeds notarized online?

Dear Consumer:

The writer of this article is not an attorney.   Use this information at your own risk.

Having documents notarized online may sound like a great convenience, but make sure the final recipient agrees to accept an electronically notarized document. The person or company  who wants the document notarized has the final say about whether a tangible, original, paper and ink notarization is required or if an electronic notarization is acceptable.

Consumer Article: Notarizing Online

Speeding ticket affidavits - If you plan to have a speeding ticket affidavit notarized online, contact the municipal judge or justice of the peace involved with your ticket and get written permission to submit an electronically notarized affidavit.

The judge does not have to accept it in electronic form. Laws in most states require that all parties involved in a document that will be electronically signed and notarized must be in agreement to accept the electronic signatures.  (Example: Tex. Bus. & Com. Code §322.005 ).

Loan documents - Before you have loan documents notarized online using a webcam or smartphone app, make sure that your lender will accept that format.

If the document involves a lender, bank, or mortgage loan get permission in writing from your lender to use an online notary in Virginia to notarize your mortgage-related documents.  In this case, the lender makes the rules.  Many mortgage loans can't be notarized by online notaries who aren't commissioned and living in the same state where the property is located.

Don't waste your time or money; get the lender's written permission first.

Deeds or other recordable documents - Talk to the title company involved or an attorney who is familiar with property law.  Whether right or wrong, many recorders are not yet accepting these types of electronically notarized documents.  It appears that Property Recording Industry Association (PRIA) is aware of this concern and has addressed it in a November 2015 report on page 8.

Documents requiring original ink signatures - Ask the recipient of the document if you can have the document notarized electronically or online without an inked signature.

If it is acceptable for the document to look like a copy of a notarized document, you might not have a problem using an online remote notary. If you think you need an original handwritten signature on your document, you should probably find a notary and have the document notarized in person.

Wills and powers of attorney - Talk to a lawyer before having a will or power of attorney notarized online.

Remote notarizations that are performed by Virginia notaries while you (the signer) are in another state have not had an opportunity to withstand a test of time. PRIA stated in its November 2015 report  "there may be additional legal issues surrounding “remote” notarizations that would need to be resolved by courts and legislatures."

Consumer Article: Notarizing Online

Dear Consumer:

Before having a document notarized online through the use of a webcam or smartphone app (a practice called "remote notarization"), consider the following:

1) Ensure that the party receiving the notarized document will accept it. Your primary concern when having a document notarized is whether the notarization will be accepted by the party who has asked you to have it notarized.   Proponents of online webcam notarization often say that documents that are notarized online must be accepted just like a traditional notarization.

 Proponents and website owners can neither know that nor guarantee it.

2) Be aware that experts anticipate future problems.  Experts and even remote notarization proponents anticipate future problems with this type of notarization. It is a new process and  only one state allows a notary to notarize a document while the notary and signer sit in two different states.
The Property Records Industry Association, stated the following in its November 2015 report (emphasis is mine.):
"Recorders do have a responsibility to know the laws pertaining to real estate recording in their state, and they should bear in mind that there may be additional legal issues surrounding “remote” notarizations that would need to be resolved by courts and legislatures."
3) State policy makers are still scratching their heads on how to handle notarial acts performed across state lines by online notaries.  A task force of notary public administrators from several states have been appointed by the National Association of Secretaries of State (NASS) to sort out the problem of remote electronic notarial acts. Quoted from their official page"While NASS currently supports e-notarizations for digital documents, our organizational standards still require signers and notaries to be in the same room," added Grimes. "In addition to reviewing the merits of physical presence versus virtual presence, state policymakers must also address the potential validity and interstate recognition of remotely e-notarized documents." 

4) Read the fine print on online notary websites.  Don't skip the pages containing the terms of service in remote notarization websites or smartphone apps. When you read the fine print, you'll learn that the website owner accepts no responsibility or liability for problems. You are using the site at your own risk. (This includes the exposure of documents you have uploaded and exposure of your ID documentation.  It also includes that your document's notarization might not be accepted by the ultimate user if the site's services are used.)  Before you can use these services, you must agree to their terms.

5) Finally, keep in mind that even the Full Faith and Credit Clause statements frequently found on online notary websites haven't been tested.  
  While this clause in the U.S. Constitution may (or may not) apply to notarial acts,  it doesn't have the power to make sure your child isn't kept from going on a class field trip because the notarized document you signed using an online notary doesn't look like a traditional notarial act.  Please remember, you are only able to provide a COPY of that document on paper.  You can't produce an original document in paper form if you used an online notary.

Statements on online notary websites are there to make you trust the process and pay the fee.

However, they do not have the power to make your child's school or the local JP accept a document with an electronic signature if their policies are to have ink signatures on notarized documents.

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