Bulletin: MA2020004

Date:
April 29, 2020
To:
All Massachusetts Issuing Offices
RE:
UNDERWRITING - Virtual Notarization

Dear Associates:

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

On April 27, 2020, Massachusetts Governor Baker signed into law An Act Providing for Virtual Notarization to Address Challenges Related to COVID-19, Chapter 71 of the Acts of 2020 (the “Act”). The Act can be viewed by clicking here.

The Act allows Massachusetts notaries who are also Massachusetts attorneys or paralegals supervised by a Massachusetts attorney to notarize documents using audio-visual technology to facilitate the social distancing necessary to prevent the spread of COVID-19.

In the interest of providing our agents with the tools necessary to provide service to their clients, Stewart policy-issuing agents in Massachusetts may use assistive audio-video technologies to notarize documents, provided they comply with the requirements outlined below. This authorization will be effective until three (3) days after Governor Baker’s March 10, 2020, declaration of a state of emergency is terminated (unless extended or otherwise modified).

I. TECHNOLOGY

The technology used by the agent must comply with the following requirements:

a. Provides for real-time video and audio communication between the signer and the notary public; and

b. Allows for a recording of the entire audio/visual communication between the signer and the notary public.

Note: When choosing platforms for recording and storage of the audio/visual communication, keep in mind that the recording will contain personal information such as driver’s license numbers, credit card numbers, and Social Security numbers which must be safeguarded pursuant to various privacy statutes, including MGL c. 93H.

II. PROCEDURAL REQUIREMENTS

In addition to the technology requirements, the following procedural requirements must be met:

a. The person taking the acknowledgement is a duly appointed notary public in the Commonwealth.

b. The notary public taking the acknowledgement is a Massachusetts licensed attorney or a paralegal under the supervision of a licensed Massachusetts attorney.

c. The notary public is physically located in Massachusetts during the notarization process.

d. During the electronic video conferencing, the signer must state under the penalties of perjury that he/she is located in Massachusetts at the time the documents are being signed.

e. The signer must disclose to the notary public the identity of any other people who are in the room with the signer (and their relationship to the signer) and make the other people visible to the notary public.

NOTE: For any technology platform that provides backgrounds or filters, the signer must turn them off during the electronic video conferences.

f. Unless the signer is identified by the notary public based upon the notary public’s personal knowledge, the notary public must verify the identity of the signer during the initial electronic video conference. To accomplish the verification requirement, the signer must visually display his/her identification credentials to the notary public during the electronic video conference and the notary public must review the front and back of a current government-issued identification containing a picture and signature of the signer AND a secondary form of identification containing the name of the signer and either the photograph or signature of the signer, such as a credit or debit card, a current utility or municipal tax bill, or a Social Security card.

NOTE: For purposes of this bulletin, a “current’” government-issued identification shall include a Massachusetts driver’s license or identification card that expired in March, April, or May of 2020 but has not yet been renewed. See https://www.mass.gov/info-details/rmv-covid-19-information#class-d,-m,-and-dm-driver's-licenses-and-learner's-permits,-and-mass-ids- for more information on extensions of expiration dates by the Registry of Motor Vehicles.

g. The signer must also provide the notary public a copy of the front and back of the current government issued identification document, either with the original documents or by electronic means.

h. The notary public must watch the signer execute the documents in real time using the technology.

i. The signer makes the acknowledgment, affirmation or other act to the notary public, as appropriate. (As a reminder, a mortgage and deed require the notarial act known as an acknowledgment, which acknowledgment must include the signer stating that his or her signature on the document(s) was voluntary or his/her free act and deed).

j. The signed documents bearing so-called “wet” signatures must be delivered to the notary public.

k. After receipt of the documents, the notary public initiates a second electronic video conference with the signer, which must also be recorded.

l. The signer once more states under the penalties of perjury that they are located in Massachusetts.

m. The signer once more discloses to the notary public the identity of any other people who are in the room with the signer (and their relationship to the signer) and makes them visible to the notary public.

n. The notary public shows the documents to the signer and the signer confirms they are the same documents they previously signed during the first video conference.

o. Upon completion of the second electronic video conference, the notary public affixes their signature and seal to the documents and identifies on the notarial certificate the county in which the notary public was located at the time the notarial act was completed.

p. In addition to the notary public’s name and expiration date, the notary public shall add to the notarial certificate the following recitation: “This document was notarized remotely pursuant to An Act Providing for Virtual Notarization to Address Challenges Related to COVID-19.”

q. The date of the notarial act shall be noted in the notarial certificate and may be the date the notary public completes the second electronic video conference and signs the notarial certificate, or if the document being notarized is executed in connection with a mortgage financing transaction, the notarial certificate may recite the date stated within the body of the document, even if the date precedes the date of completion of the notarial act.

r. The notary public executes an affidavit as to the notarial act. The form for an attorney/notary can be found here. The form for a paralegal/notary can be found here.

s. The recordings of the video conferences, the signer’s identification document, and the affidavit as to the notarial act shall be retained for a period of ten (10) years by the attorney who acted as the notary public or who was the supervising attorney for the paralegal who acted as the notary public.

III. ADDITIONAL UNDERWRITING REQUIREMENTS:

a. All parties, including lenders, must consent in writing to the use of the virtual notary process pursuant to the Act and issuing agents must retain said consent with the closing file. Click here for the STG consent form. Note: You may accept an emailed version of the text in an email from a representative of an institutional lender.

b. Prior underwriting approval is required to issue policies in excess of $1,000,000 if the transaction document(s) will be acknowledged virtually pursuant to the Act or if there are remotely notarized documents in the chain of title.

c. Any notarial certificate may not be dated prior to the first electronic video conference.

d. In order that the person having custody of the audio/visual recording can be identified if necessary, the notary public shall also add to the notarial clause on any document to be recorded at the Registry of Deeds “Massachusetts BBO number: _____” or “Paralegal supervised by Massachusetts licensed attorney [Name], BBO Number:_________”. Click here for form acknowledgments and jurats for use with the Act.

If you have any questions relating to this or other bulletins, please contact your Massachusetts Underwriting team at massuwing@stewart.com or at 1-800-628-2988.

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