Bulletin: KS2020001

Date:
April 15, 2020
To:
All Kansas Issuing Offices
RE:
UNDERWRITING - KS Executive Order Number 20-20 - Requirement of Personal Appearance before Notary Public Waived

Dear Associates:

On April 9, 2020, Kansas Governor Laura Kelly, issued Executive Order Number 20-20; a copy of the order is attached. The Governor ordered that the requirement of personal appearance before a notary public under the laws of the state of Kansas is suspended to the extent that any notarial act is authorized to be performed utilizing audio-video technology, provided that certain conditions are met. Stewart is committed to our partners and providing solutions to allow agents and Stewart Issuing Offices to continue closing and insuring transactions. Given the uncertainty of how COVID-19 may impact real estate transactions, and in the interest of providing our Issuing Offices the tools necessary to provide service to their customers, we are implementing the following procedures, outlined below, which are EFFECTIVE for the duration of the public health emergency (unless extended or otherwise modified).

I. TECHNOLOGY

Stewart agents may use assistive audio-video technologies to facilitate the Notarial act.

To facilitate the use of the audio-visual notary feature, set forth in the attached Proclamation, the Stewart approved technology platforms and tutorials can be found at:

https://www.stewart.com/content/stewart/stewartcom/en/eclosing/customer-type/title-agency-info.html?refurl=%2Fcontent%2Fstewart%2Fstewartcom%2Fen%2Fcustomer-type%2Ftitle-insurance-underwriting-services%2Feducation-and-training%2Feclosing%2Foverview.html

In the event you do not use an approved Platform, the audio-visual technology must:

  1. Provide for the audio/video preservation of the entire notarial transaction;
  2. Provide for secure storage and transmission of the Non-public personal information; and,
  3. Provide for verification of location of signer (Principal must be in KS).
  4. Provide for the audio/video preservation of the entire notarial transaction, which should be retained for a period of seven (7) years. 

II. CONDITIONS FOR THE NOTARIAL PROCESS


1. Any notarial act performed through video conference in compliance with this order shall have the same force, effect, and validity as any other notarial act performed in compliance with Kansas law, and may be relied upon to the same extent as any other notarial act under Kansas law.

During the duration of the State of Disaster Emergency related to the outbreak of COVID- 19, the requirements that a person must appear before a Notary Public commissioned under the laws of Kansas pursuant to K.S.A. 53-503 and any related statutes, are suspended and such requirements are satisfied if the Notary Public performs a remote notarization via two-way audio-video communication technology, provided that:


a. the Notary Public commissioned in Kansas and the individual signing the document are both physically within the State while performing the notarial act;

b. the Notary Public is able to identify the individual signing the document, from personal knowledge or satisfactory evidence of the identity of the individual; and

c. the transaction follows any guidance posted by the Kansas Secretary of State on its website.


2. During the duration of the State of Disaster Emergency related to the outbreak of COVID- 19, any act of witnessing required by Kansas law may be completed remotely by two-way audio-video communication technology, provided that:


a. The two-way audio-video communication technology must allow for direct, contemporaneous communication between the individual signing the document ("the signatory") and the witness by sight and sound;

b. The signatory must attest to being physically located in Kansas during the two-way audio-video communication;

c. The witness must attest to being physically located in Kansas during the two-way audio-video communication;

d. The signatory must affirmatively state on the two-way audio-video communication what document the signatory is signing;

e. Each page of the document being witnessed must be shown to the witness on the two-way audio-video communication technology in a means clearly legible to the witness and initialed by the signatory in the presence of the witness;

f. The act of signing must be captured sufficiently up close on the two-way audio-video communication for the witness to observe;

g. The signatory must transmit by fax or electronic means a legible copy of the entire signed document directly to the witness no later than the day after the document is signed;

h. The witness must sign the transmitted copy of the document as a witness and transmit the signed copy of the document back via fax or electronic means to the signatory within 24 hours of receipt;

i. If necessary, the witness may sign the original signed document as of the date of the original execution by the signature provided that the witness receives the original signed document together with the electronically witnessed copy within thirty days from the date of the remote witnessing; and

J. If the Notary Public is being asked to certify to the appearance of the witnesses to a document, multiple-way audio-video communication technology must allow for direct, contemporaneous communication between the Notary Public, the signatory, and the witness by sight and sound.

Additionally

  • That the document must contain a notarial certificate, a jurat or acknowledgement, which states the principal appeared remotely pursuant to Executive Order 20-08.
  • Any person whose signature is to be notarized must display a valid photo ID to the notary during the video conference if the person is not personally or otherwise known to the notary.

That the person must affirmatively represent that he or she is physically situated in the State of Kansas.

The video conference is a live, interactive audio-visual communication between the principal, notary, and other necessary persons, which allows for observation, direct interaction, and communication at the time of signing.

That the notary shall record in their journal the exact time and software used to perform the notarial act along with all other required information, absent the signature of the principal.

That the notary must be physically located in the State of Kansas and state which county they are physically in for the jurisdiction on the notarial certificate.

For electronic documents:

a. That the Notary Public is registered as an electronic notary public;

b. That the document must be signed electronically with software approved by the secretary of state as an acceptable medium to conduct the transaction; which may include software requiring third party multi-factor authentication; and

c. That the notary shall affix their electronic notary seal to the electronic document.


For paper documents:

a. A tangible or electronic copy of the signed document must be mailed or otherwise transmitted to the notary within five business days; and

b. To the extent that any Kansas state law requires the physical presence of any testator, settlor, principal, witness, notary, or other person, for the effective execution of any estate planning document, such as a Will, Trust or power of attorney, or a self-proving affidavit of the execution of such document, such provisions are temporarily suspended or waived, and satisfied if the necessary parties are present through a video conference as set forth in section 5.

  • That if the document needs to be presented in a paper medium, it shall satisfy the requirements of being an original document, and prima facie evidence, if the notary prints the document and affixes an attestation stating that is a true and correct copy of the electronic document, shall state it was performed pursuant to Executive Order 20-08 and the notary signs and affixes their rubber stamp notary seal.
  • That the fees allowed for notarization under this executive order shall be the same as those allowed for other notarial acts, except a fee charged for the use of a Remote Online Notary platform or service shall not be considered a fee for a notarial act.

Suggestions for Audio/Video Conferencing Technology:

The Order does not identify technology which would satisfy the audio/visual requirements of the Order and care should be taken that any platform chosen adequately provides for the ability to record the live session and that both the Signer and the Notary have devices which support the chosen platform. As a convenience to our agents and to aid your search in locating a service provider, we've listed some providers which offer audio/video conferencing and the ability to record such conference.

The following platforms may be available to you:

Microsoft Teams: https://support.office.com/en-us/article/record-a-meeting-in-teams-34dfbe7f-b07d-4a27-b4c6-de62f1348c24

GoToMeeting: https://www.gotomeeting.com/features/online-meeting-recording

Cisco Webex: https://help.webex.com/en-us/nzpa89j/Manage-Cisco-Webex-Meetings-Recordings

III. ADDITIONAL UNDERWRITING REQUIREMENTS:

  • The transaction involves a cash sale/purchase; purchase money transaction with financing; or a transaction involving a refinance, either with or without cash-out. In other transactions, please obtain Stewart Underwriter approval.
  • Parties, including lender, must authorize in writing the use of the video notary process.
  • If the technology platform is not listed in the above links, a Stewart Underwriter must approve the technology vendor. Please contact the local Stewart Underwriter for approval.
  • The approval of the Audio-visual feature is limited to policy amount up to $1,000,000. Real Estate transactions in excess of $1,000,000 will be considered, however Issuing Offices shall obtain Stewart Underwriter approval.
  • The notary must sign a certificate of compliance on a form provided by Stewart.

The title company must verify that the recording office will accept the Notary performed in this process.

Please note that remote notarization and Remote Online Notarization are different processes with different requirements.

Please note we have a dedicated site on VU for all things COVID-19 related available at:

https://www.vuwriter.com/en/coronavirus-resources.html

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

For on-line viewing of this and other bulletins, please log onto www.vuwriter.com.

THIS BULLETIN IS FURNISHED TO INFORM YOU OF CURRENT DEVELOPMENTS. AS A REMINDER, YOU ARE CHARGED WITH KNOWLEDGE OF THE CONTENT ON VIRTUAL UNDERWRITER  AS IT EXISTS FROM TIME TO TIME AS IT APPLIES TO YOU, AS WELL AS ANY OTHER INSTRUCTIONS. OUR UNDERWRITING AGREEMENTS DO NOT AUTHORIZE OUR ISSUING AGENTS TO ENGAGE IN SETTLEMENTS OR CLOSINGS ON BEHALF OF STEWART TITLE GUARANTY COMPANY. THIS BULLETIN IS NOT INTENDED TO DIRECT YOUR ESCROW OR SETTLEMENT PRACTICES OR TO CHANGE PROVISIONS OF APPLICABLE UNDERWRITING AGREEMENTS. CONFIDENTIAL, PROPRIETARY, OR NONPUBLIC PERSONAL INFORMATION SHOULD NEVER BE SHARED OR DISSEMINATED EXCEPT AS ALLOWED BY LAW. IF APPLICABLE STATE LAW OR REGULATION IMPOSES ADDITIONAL REQUIREMENTS, YOU SHOULD CONTINUE TO COMPLY WITH THOSE REQUIREMENTS.

References

Bulletins Replaced:
None
Related Bulletins:
SLS2020003 UNDERWRITING - Remote Online Notarization
 
SLS2020004 UNDERWRITING - Remote Online Notarization
Underwriting Manual:
None
Exceptions Manual:
None
Forms:
None