9
May

Last-minute amendment to allow webcam notarization in Vermont

Proponents of webcam notarization are trying to sneak it in at the last minute, as an amendment to H.526, which would adopt the Revised Uniform Law on Notarial Acts. The legislature is trying to finish its business and adjourn on Friday, May 11, so everything is moving fast.

The bill may be found by going to https://legislature.vermont.gov/bill/status/2018/H.526 and looking at the line that contains "House proposal of amendment to Senate proposal of amendment". Click on "P. 4144" and in the PDF that downloads, search on "4144" to get to that page. (The Journal of the Senate page numbers start at the beginning of the term in 2016; the PDF is only 126 pages long.)

I hope even proponents of webcam notarization (which I am not),  would oppose badly written laws. This amendment is very badly written indeed.

  1. Webcam notarization is controversial and technically complex. I oppose any legislation on this subject that is introduced at the last minute without the opportunity for consideration and the hearing of testimony by appropriate committees.
  2. In-person electronic notarization is legal today under V.S.A. Title 9 Chapter 20, Uniform Electronic Transactions Act. This amendment would suddenly outlaw these notarizations until the Secretary of State creates rules for them. The amendment fails to clearly state the date the prohibition would go into effect.
  3. Although I oppose webcam notarizations, if it is to be done at all, it should be done right. This amendment fails to specify many aspects that go beyond executive branch rule making. One example: if the notary is in Vermont, but the person executing the record is in another state, is it lawful? If so, is the place of notarization considered to be Vermont or the other state?
4
Apr

Vermont Bar Association is paying attention to details

As I wrote on March 30, the Vermont Legislature is considering the Revised Uniform Law on Notarial Acts (RULONA). On a national level, this bill is recommended by the Uniform Law Commission and has been adopted, with some variations, by several other states.

The bill is currently in the Senate Government Operations Committee. Among those providing input on the bill is the Vermont Bar Association. In reviewing the versions posted at the legislature's website, particularly this page, followed by some correspondence with Chris Winters (Deputy Secretary of State), I learned that a paragraph from the Uniform Law Commission's version has been altered for Vermont. The changes from the ULC version to the current Vermont draft are shown by means of strikeouts and underlines:

“Notarial act” means an act, whether performed with respect to a tangible or electronic record, that a notarial officer notary public may perform under the law of this state. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy,</del and noting a protest of a negotiable instrument.

(B) “Notarial act” does not include a corporate officer attesting to
another corporate officer’s signature in the ordinary course of the corporation’s
business.

(C) Nothing in this chapter shall be construed to require the use of a
notary public to witness a signature that is allowed by law to be witnessed by
an individual who is not a notary public.

The changes related to attesting a signature were made because the VBA is worried that if an ordinary person were to witness a signature as a private person, it might be considered an improper notarial act, which is not the intent of the bill, neither here nor in other states. I'm inclined to think this is a stretch. How many clubs have new members take an "oath", which is not administered buy a government official, upon joining? How many of the people administering these "oaths" have been prosecuted for performing an illegal notarization? What about notaries of the Catholic Church, who witness papers related to church operations, and never pretend they have any government sanction?

The Senate Government Operations committee has also deleted the power of a notary to certify a copy of a record. Getting a copy certified by a notary isn't a terribly wise course of action anyway, because the notary is seldom in a position to know if the record being copied is authentic. But the RULONA doesn't list this as an optional power, so someone who things this supposedly uniform law is actually uniform is in for a rude surprise.

 

30
Mar

Notaries Public will still be government officers?

The latest draft of Vermont's version of the Revised Uniform Law on Notarial Acts, being considered by the Vermont Legislature, may be found here (PDF). One thing that bothered me was that it didn't mention, near the beginning of the bill, whether notaries would still be considered government officers. However, throughout the bill, notaries are referred to being "commissioned", which is a term usually applied to an official. Also, § 5341(c) requires an applicant for a notary commission to "execute an oath of office" before a commission can be issued, which makes it reasonably clear the notary is a government officer.

Given that, the next question is which branch of government the notary belongs to.

18
Jan

Shelter training

I'd like to thank the volunteers from Chittenden and Mendon who turned out to take shelter training from the American Red Cross so that they can assist their neighbors during disasters. The meeting was just after a snow storm, so the travel wasn't as easy as it might have been. I' also like to thank Janet Carini who taught the class with me.

Session 2 is 7 to 9 PM, Wednesday, January  at the Barstow Elementary School, 223 Chittenden Road, Chittenden, Vermont. The class will be finished after this session.

17
Oct

Mass. places a requirement on out-of-state acknowledgements

It's often been stated in Internet notary-related forums that if an acknowledgement meets the requirements of the place where it is taken, it should be valid in all states, and, as long as it has the right ink color, paper size, and margins, should be able to be recorded anywhere. (Although there was some discussion of a state that requires "husband and wife" in the ack and some notaries aren't willing to certify that.)

I came across a requirement for acknowledgements that are to be used in MA (specifically, be recorded in MA) at:

https://rebama.blogspot.com/2017/09/still-free-act-and-deed.html
The website belongs to the Real Estate Bar Association for Massachusetts.

A similar pdf from a law firm is at:

https://www.murthalaw.com/files/avoidance_of_defectively_notarized_mortgages_2.pdf

According to them, an acknowledgement must indicate that the signer (and if the signer is a representative, the principal) acknowledged signing the instrument VOLUNTARILY. The ack should contain 'the language “voluntarily for its intended purpose” or “signed as his/her free act and deed,” or similar language to that effect'.

Some states, like CA, do not contain any language indicating the signer or principal acted voluntarily. This would seem to be the rare case where the CA notary could complete a non-standard acknowledgement because it is required in another state.

The trickier acknowledgement would be for a signing by a representative. I would think the traditional VT wording would work for a deed to be recorded in MA. For example

On this 17th day of October, 2017, before me personally appeared Wiley Coyote, to me known to be the person who executed the foregoing instrument, and he thereupon duly acknowledged to me he is the president of Acme Anvil Corp., and he executed the same to be own free act and deed, and the free act and deed of Acme Anvil Corp.

/s/ John Doe
Vermont Notary Public

Notice that the notary is not certifying that the signer actually is the president of Acme Anvil Co., the notary is merely recording that the signer acknowledged that he is the president.

23
Sep

An argument against electronic notary seals...

I argue that states should not require their notaries to use electronic notary seals, nor should they require notaries to include an electronic signature that looks like their handwritten signature.

First of all, once images of a handwritten signature or image that looks like a traditional paper notary seal has been recorded in the public records, it can easily be cut and pasted to forged documents, so they provide little security; they really provide an illusion of security.

Many documents that can support images and electronic signatures, such as Microsoft Word or PDF, can also contain embedded malware. A plain text file, on the other hand, when opened with a simple text editor such as Microsoft Notepad, will not automatically launch any malware. But plain text files do not support images.

By allowing esignature and enotarization methods that produce plain text signed and notarized documents, recipients who fear to open more sophisticated documents (and rightfully so) will be able, and hopefully, willing, to open plain text documents.

There are states that require electronic notary seals, but define the term in a way that the requirement can be satisfied with just text, no image required. In my opinion this terminology is confusing and it would be better to avoid the term "seal".

23
Aug

Castleton Democratic Town Committee caucus in September.

The Castleton Democratic Town Committee will hold a caucus, as required by Vermont law. The participants will choose members and officers of the town committee. It will be held September 19 at 6 PM. The location is the Castleton Community Center at 2108 Main Street (formerly known as The Old Homestead).

This is grass roots politics. Among those being elected will be delegates to the Rutland County Democratic Committee. That committee, in turn, elects delegates to the Vermont State Democratic Committee, which, in turn, sends delegates to the National Democratic Committee in 2020. (There are other delegates too; some of these are known as super delegates.)

So, if you want to learn where those names on the election ballots come from, come on by and see the very beginning of the process. Anyone is welcome to be a spectator, even if you're not a citizen or not 18 yet. But to participate, that is, vote, at the caucus, you must be a Castleton registered voter and not have participated this year in the caucus of another political party.

I hope to see you there.

21
Aug

Electronic Notary Seals

There has been a lot of buzz about electronic notarizations. A few states allow their notaries to perform notarizations while communicating with the signer via web cam; around 20 states allow electronic notarization provided the signer is present with the notary (in the traditional sense, such as being in the same room).

One question that comes up is seals. Obviously one can't stamp a file on a hard disk with a rubber stamp, nor can one crimp the hard disk with an embossing seal. What are the states doing about seals?

Some statistics

According to a summary by the Texas Secretary of State office, of 56 states and similar entities, 47 require seals on paper documents and 9 do not. Probably the states that don't require seals on paper documents won't require them on electronic documents either.

Nine states have enacted the Revised Uniform Law on Notarial Acts (RULONA). This act doesn't require a notarial seal (which RULONA calls an official stamp), but does require that the notarial certificate contain

  • the notary's signature (not necessarily an image of a handwritten signature, could be typed)
  • the jurisdiction where the notarial act is performed
  • the title of office of the notarial officer
  • if applicable, the notary's commission expiration date.

Other states have similar provisions. This flexibility allows file formats that do not support images to be notarized by using only text.

Details matter

Of course, the devil is in the details; some states may modify the RULONA before adopting it. In other states, even though the law doesn't seem to require anything that looks like a traditional seal, as long as the necessary information is there, the executive branch rule-makers may require something that looks like a traditional seal.

Points of confusion

In internet forums, the phrase "electronic notary seal" is often used as a synonym for everything a notary needs to perform electronic notarizations. Clearly this is not the case; a significant number of states do not require the image of seal on enotarized documents.

Also, products are available in the marketplace that are described as electronic notary seals, but they have nothing to do with electronic notarization. These images are added to a document before it is printed. After the seal image is added, the document is printed and signed with pens by hand.

Security

It's worth pointing out that the image of a notary's seal doesn't provide much security. Once it gets recorded in the land records of a place that makes the original electronic form of the records available to the public, it will be easy to make a copy and put it anywhere. It's the public key cryptography that has the potential to make electronic notarizations secure.

19
Aug

Notary services

Like the majority of notaries public, I am not an attorney and can not give legal advice. If you are in any way unsure about the documents you want to have notarized, consult an attorney or other qualified professional.

Notarizations are in person

A few other states allow their notaries public to perform notarizations while chatting with the signer using an audio-video link, like a web-cam. This is not allowed in Vermont; the signer and the notary pubic must meet in person.

Perhaps you are wondering if a person in Vermont could communicate with a Virginia notary public via web-cam, and have a notarization done. I don't know. But keep in mind that the result of that approach would be an electronic document. If the person or organization who's asking that the document be notarized is expecting a paper document with hand-signed ink signatures, your electronic document might not be accepted.

What to have ready

Identification

Usually this is an unexpired government photo ID. ID documents are not required if you are well-acquainted with the notary, or if there is a witness available who is not related to either you or the notary, and who is well-acquainted with both you and the notary. Identification is required for acknowledgements but not for oaths or solemn affirmations.

It must be clear that the name that appears in the document and the name that appears on the ID are the same person. This can be an issue if you have changed your name, as often happens when people marry.

The document

Ordinarily, all the blanks in the document should be filled in, except your signature, the date (in case of a postponement), and the blanks intended for the notary. Ideally, the document will already have the language for the notary, with blanks for the notary to fill in, known as the notarial certificate. If not, I carry blank notarial certificates that can be attached. But it is up to you to decide which notarial act is needed.

The notarial act

Vermont notaries public are authorized to take acknowledgements and administer oaths or solemn affirmations, and to make certified copies of most documents. One type of document that Vermont notaries public will not make certified copies of are vital records, such as birth, death, and marriage certificates.

Notaries public in some other states are allowed to witness signatures, but not in Vermont. (Of course, a Vermont notary public could witness a signature as a regular person, but not as a notary.)