Using Electronic Signatures In 2020 During The Pandemic
In the last two decades, the federal court system has implemented online filing to modernize and streamline (reduce) costs related to time and money. While some courts within the federal system, such as bankruptcy courts, have, in most cases, permitted attorneys and litigants to execute their signatures electronically, documents with original signatures must still be filed with the court. Presently, more courts are adopting and allowing the use of electronic signatures on documents filed with the court.
On March 18, 2020, Senate Bill 3533, the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020 (the “SECURE Act”), was introduced as bipartisan legislation to authorize and establish minimum standards for electronic and remote notarizations that occur in or affect interstate commerce. A substantially identical version of the bill was introduced in the House on March 23, 2020, as H.R.6364.
If the SECURE Act is enacted as currently drafted, it would authorize notaries in the United States to perform remote online notarizations (RON) using audio-visual communications and tamper-evident technology for interstate transactions. There is nothing new on these bills since SB 3533 was referred to the Committee on the Judiciary on March 18, 2020.
Currently, 28 states have enacted some form of remote online notarization (RON) law: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin.
In states that have yet to enact RON or otherwise make their RON law effective, emergency short-term measures are being issued. In California, there is presently no RON or COVID-19 enactment to date. California law does not authorize California notaries public to perform remote online notarizations. The personal appearance of the document signer before the notary public is required. However, the California Secretary of State provides that California residents may utilize a mobile California notary public to execute documents.
On September 15th, Hawaii became the 28th state to enact a remote online notarization law. The South Dakota RON law differs substantially from the other states’ legislative acts in that it enables the use of communication technology only “if the notarial officer: … affixes the notarial officer’s signature to the original tangible document executed by the [principal]” and only if the notary personally knows the principal.
Fannie Mae has issued updated guidance to lenders on addressing mortgage origination issues during the COVID-19 event, including authorizing lenders to sell loans with remotely notarized loan documents in certain designates states and under specified conditions. It has also issued guidance on “Remote-ink notarizations” authorized by emergency order.
Other notarial acts are also being made available on a remote basis using audio-visual communication technology, such as the swearing-in of witnesses (Supreme Court of Florida Administrative Order No. AOSC20-16), and the general conduct of court proceedings (Pennsylvania Supreme Court Order dated March 16).
Attorneys must be prepared to embrace technology as the practice of law continues to evolve using the internet and online resources. Especially with the increased necessity to do so because of the COVID-19 pandemic. The CDTA provides the training that attorney-advocates require to utilize technology and all its resources to meet the needs of clients in the 21st Century. At CDTA, we train, educate, and develop students to be exceptional attorneys and trial advocates. Call us today at (760) 342-0900 or find out more online here.