Bulletin: TX2020006

Date:
April 16, 2020
To:
All Texas Issuing Offices
RE:
UNDERWRITING - Notarization by video and audio conference for durable powers of attorney and certain other documents [Revised 4-17-20; 4-30-20]

Dear Associates:

On April 27, 2020, Governor Abbott suspended section 121.006(c)(1) of the Texas Civil Practice & Remedies Code to the extent necessary to allow for appearance before a notary public, for the purpose of acknowledging real-estate instruments, via videoconference. Nothing in this suspension prevents a traditional notarization or a remote online notarization under chapter 406 of the Texas Government Code. The Suspension Order conditions imposed by the Governor as described above can be found here.

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 April 27, 2020, until the earlier of May 30, 2020, or the termination of the March 13, 2020, disaster declaration.

Please note that the manner of audio-video notarization allowed by the Suspension Order is NOT the same as a Remote Online Notarization as described in Stewart Bulletins SLS2020003 and SLS2020004 and TX2018003 and TX2018005.

According to the Suspension Order, currently commissioned Texas notaries may perform notarial acts for remotely -located -in Texas- individuals upon satisfaction of various requirements, which are listed below.

1. A notary public shall use two-way audio-video communication technology that allows for direct and contemporaneous interaction between a person signing a document and the notary public by sight and sound.

2. A notary public shall verify the identity of a signatory at the time the signature is taken by using two-way audio-video communication technology. A notary public may verify identity by: (a) personal knowledge of the signatory; (b) analysis based on the signatory’s remote presentation of a government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the signatory, and is of sufficient quality to allow for identification; or (c) an introduction of the signatory by oath of a credible witness who personally knows the signatory, and who is personally known to the notary public.

3. During the two-way audio-video communication:

(a) the notary public shall attest to being physically located in Texas;
(b) the signatory shall attest to being physically located in Texas;
(c) the signatory shall affirmatively state what documents are being signed; and
(d) the signatory’s act of signing shall be close enough to the camera for the notary public to observe it clearly.

4. A recording of the two-way audio-video communication of the notarial act shall be kept by the notary public for two years from the date of the notarial act. As a best practice and to also comply with guidelines of FNMA and FHLMC, you should retain the recording of the video conference for seven years.

5. The signatory shall send the original signed documents by courier, U.S. Mail, or overnight carrier directly to the notary public for the notary public to sign and to affix the official stamp or seal.

6. The official date and time of the notarization shall be the date and time when the notary public witnessed the signatory signing the documents during the two-way audio-video communication.

7. The documents shall include, whether in a notarial certificate, a jurat, or an acknowledgement, language substantially similar to the following: “This notarization involved the use of two-way audio-video communication pursuant to the suspension granted by the Office of the Governor on April 24, 2020, under section 418.016 of the Texas Government Code.”

Company Policy

Stewart will insure transactions involving use of this order under the following conditions:

  • The transaction is not a home equity loan, and the policy amount does not exceed $1,000,000.00. For liabilities above this amount, underwriting approval must be obtained.
  • Both the Notary and the person signing must be located within the state of Texas.
  • The document is a real estate instrument necessarily related to a real estate transaction.
  • The notary verifies the identity of the person signing the document at the time the signature is taken by using two-way video and audio conference technology. The acknowledgment must contain a statement that such technology was used;
  • The notary verifies the identity by personal knowledge of the signing person, or by analysis based on the signing person's remote presentation of a government-issued identification credential, including a passport or driver's license, that contains the signature and a photograph of the person. The acknowledgment must state the method of identification used;
  • The notary verifies that it maintains a recording of the two-way audio-video communication of the notarial act for two years from the date of the notarial act. As a best practice and to also comply with guidelines of FNMA and FHLMC, you should retain the recording  of the video conference for seven years; and,
  • The signing person shall transmit by courier, U.S. Mail, or overnight the original signed document to the notary public, who may notarize the original signed document, at which point the notarization is valid. The official date and time of the notarization shall be the date and time when the notary public witnessed the signatory signing the documents during the two-way audio-video communication.
  • Before utilizing an audio-video communication system to perform notarial acts, the issuing office must obtain the approval and consent in writing of all parties to the transaction, including any lender. An example written consent form is attached (hyperlink). An email from an institutional lender containing substantially the same language as the written consent form will satisfy this requirement.
  • Stewart requires you use the following language in the notarial certificate, a jurat, or acknowledgement which is substantially similar to the Suspension Order language and meets Stewart requirements as stated in this Bulletin:

"This notarization involved the use of two-way audio-video communication pursuant to the suspension granted by the Office of the Governor on April 29, 2020, under section 418.016 of the Texas Government Code. The identity of the signing person was verified by [personal knowledge or analysis based on the signing person's remote presentation of a government-issued identification credential that contains the signature and a photograph of the signing person]. The undersigned notary hereby verifies that it shall maintain a recording of the two-way audio-video communication of the notarial act for two years from the date of the notarial act."

Although the Temporary Rules do not specifically identify any audio-video communication system that fully complies with the rules, there are several platforms which may satisfy the necessary real-time audio-video communication, recording and storage requirements. As a courtesy to issuing offices, below is a list of service providers which offer audio-video communication platforms. Please note that the list is not conclusive, and that Stewart Title Guaranty Company has not vetted and makes no representations regarding the suitability, effectiveness or security of any audio-video communication system.

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

This Bulletin is not intended to direct an issuing office’s closing practices or change the provisions of any underwriting agreement. In addition, this Bulletin is not intended to modify or replace the provisions of any other Stewart Bulletin including, but not limited to, Bulletins SLS2020003 and SLS2020004 and TX2018003 and TX2018005 regarding Remote Online Notarization.

The Suspension Order is in effect until the earlier of May 30, 2020, or the termination of the March 13, 2020, disaster declaration. Any real estate instrument acknowledged while this suspension is in effect, and in accordance with its terms, shall be considered duly acknowledged and fully compliant with Texas law after the termination of this suspension. All county clerks in Texas shall accept for recording in the public records all documents signed and notarized by means of the two-way audio-video communication described in this suspension. Any real estate relate document covered by this order that is notarized in this manner after the suspension order is terminated by the Governor or after the March 13, 2020, disaster declaration is lifted or expires will generally not be acceptable to Stewart for insuring purposes.

Even though the Suspension Order requires all county clerks to accept all real estate instruments duly acknowledged in compliance with the Suspension Order conditions, please contact your local county clerk to be sure they will accept your document for filing/e-filing.

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.