Bulletin: TN2020001

Date:
April 16, 2020
To:
All Tennessee Issuing Offices
RE:
UNDERWRITING - TN Executive Order Number 26 - Requirement of Personal Appearance before Notary Public and Witnesses Waived

Dear Associates:

On April 9, 2020, Tennessee Governor Bill Lee, issued Executive Order Number 26; a copy of the order is attached. The order is effective until 12:01 a.m., central daylight time, on May 18, 2020. The Governor ordered that the requirement of personal appearance before a notary public under the laws of the state of Tennessee 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).

If you are a commissioned Notary Public in Tennessee, here is the link to register as an Electronic Notary:

https://sos.tn.gov/products/business-services/online-notaries-public

Executive Order 26 provides as follows:

1. Definitions.

a. "Document" as used in this Order means an instrument, trust, will, living will, durable health care power of attorney, durable power of attorney, deed, or other legal document;

a. "Signatory" as used in this Order means a person or persons who execute or sign ("execute", "executed", or "execution") a Document; and

b. "Witness(es)" as used in this Order means a person or persons who acknowledge, attest, or otherwise witness ("witness" or "witnessing") the execution or signing of a Document by a Signatory, and/or a person or persons who witness an act performed by another Witness(es).

2. Purpose. The purpose of this Order is to permit remote notarization and remote witnessing of Documents to allow persons to engage in commerce and execute legal documents without the need for in-person contact that creates the risk of exposure to or spread of COVID-19. The provisions of this Order should be liberally construed to effectuate this purpose.

3. Remote notarization and witnessing-permitted. Any law, including, but not limited to, the common law, the provisions of Tennessee Code Annotated, Title 8, Chapter 16, and Titles 32, 34, 66, and 68, and any related rules, requiring a Signatory to execute a Document in the physical presence of, or while physically appearing before, a notary public or Witness(es), or requiring a Witness(es) to witness a Document in the physical presence of, or while physically appearing before, a notary public or another Witness(es), is hereby suspended to the extent necessary to permit remote notarization and remote witnessing under the following conditions:

a. Execution by a Signatory, witnessing by Witness(es), and notarization by a notary public, as applicable, must occur via real-time audio and visual communication means where the Signatory, the notary public, and Witness(es), as applicable, can see and hear one another simultaneously, including, but not limited to, videoconference technology such as Skype, FaceTime, Zoom, WebEx, and other similar communication technologies; as a best practice and to also comply with guidelines of FNMA and FHLMC, you should retain the recording  of the video conference for 7 years.

b. The Signatory, notary public, and Witness(es), as applicable, must each be physically located in Tennessee during the real-time audio and visual communication;

c. The notary public and Witness(es), as applicable, through use of the real-time audio and visual communication, must verify the identity of the Signatory, by personal knowledge or by government-issued identification at the time that execution occurs;

d. The Signatory and Witness(es), as applicable, must affirmatively identify on the real-time audio and visual communication the Document being executed and witnessed, as applicable;

a. The execution and witnessing, as applicable, must be captured sufficiently close on the real-time audio and visual communication for the notary public and Witness(es), as applicable, to observe;

b. The Document must include a provision stating that it was executed in compliance with Executive Order No. 26 by Tennessee Governor Bill Lee, dated April 9, 2020; and

c. The execution, witnessing, or notarization of a Document, as applicable, must be memorialized by at least one of the following methods:

Counterparts. Persons who execute, witness, or notarize a Document, as applicable, while in different locations from one another execute, witness, or notarize separate signature pages in counterparts; or

Subsequent notarization or witnessing of original Document. The Document is executed by the Signatory, and then the applicable notary public or Witness(es), or a combination thereof, subsequently notarizes or witnesses the original Document executed by the Signatory. Such notarizing or witnessing shall be deemed to be carried out at the time of the execution by the Signatory as long as the notarizing or witnessing is completed not later than ten calendar days from the date of the execution of the Document.

4. Online Notary Act. The provisions and requirements of the Online Notary Public Act, Title 8, Chapter 16, Part 3, are hereby suspended to the extent necessary to permit a notary public to remotely notarize a Document in accordance with this Order; provided, that nothing herein shall prevent an online notary public from electing to notarize a Document pursuant to the provisions of the Online Notary Public Act, and compliance with the Online Notary Public Act shall continue to have full force and effect under law.

5. Suspension of laws that would limit application of this Order. Any law, order, executive order, rule, or regulation that would otherwise limit the enforceability of this Order is hereby suspended, pursuant to Tennessee Code Annotated, Section 58-2-107.

6. Severability. If any provision of this Order or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Order which can be given effect without the invalid provision or application, and to that end the provisions of this Order are declared to be severable.

Term and effective date. This Order shall be effective and enforceable at 11:59 p.m., Central Daylight Time, on April 9, 2020, and shall remain in effect until 12:01 a.m., Central Daylight Time, on May 18, 2020, at which time the suspension of any state laws and rules and the other provisions of this Order shall cease and be of no further force or effect.

ADDITIONAL UNDERWRITING REQUIREMENTS:

1. 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.

2. Parties, including lender, must authorize in writing the use of the video notary process.

3. 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.

4. The notary must sign a certificate of compliance on a form provided by Stewart.

5. 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.

For Remote Online Notarization guidance, see SLS2020003 and SLS2020004.

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

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

As a reminder, you are responsible for knowledge of and compliance with the information contained in all Bulletins and Special Alerts as posted on Virtual Underwriter (www.vuwriter.com), whether you receive them by electronic distribution or not.

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:
STG Tennessee Audio/Visual Notarial Act Acknowledgment