The e-notarization challenge: 50 states of grey.

AuthorGardner, Harry


The road to mainstream e-mortgage adoption has been paved with good intentions, but slowed by various obstacles over these past 16 years since we first started working on an industrywide framework of e-mortgage standards, guidelines and best practices within MISMCT. [paragraph] While various business events have diverted lenders' attention away from e-mortgage at times (the subprime crisis; Truth in Lending Act [TILA]-Real Estate Settlement Procedures Act [RESPA] Integrated Disclosure rule [TRID]; the Home Mortgage Disclosure Act [HMDA]), there have also been ongoing impediments on the government and regulatory side. These latter impediments sometimes have been caused by slow government agency adoption or acceptance of e-signatures, and sometimes by the fact that acceptance within a particular functional aspect is controlled at the state level (e-notarization) or even at the county level (e-recording). H Notaries public in the United States have a long history of adding assurance to transactions and agreements, by witnessing the signing ceremony and then attaching their information and attestation to the signed document. [paragraph] Notaries participate in the mortgage closing ceremony by applying their notarial stamp or seal to the signed pages of certain key documents to satisfy the requirement that those documents be notarized. [paragraph] What are the responsibilities of the notary during this process? First, to verify the signer's identity within a reasonable degree of certainty by examining his or her driver's license or other form of government-issued photo ID, such as a passport.

Next, to assess the signer's general comprehension and volition, or intent to sign, and to check for barriers to notarization such as blanks or missing pages. Finally, the notary observes that the signer is not under duress--that there is no apparent influence forcing the signer to sign the documents against his or her will.

In an electronic notarization act, the basic process and requirements are the same. The notary witnesses the signing ceremony and attests to that fact on the electronic documents. The difference is in the tool notaries use to affix their signature to the documents.

On paper, they use a notary stamp or embossing seal and an ink pen. During an e-closing, their signature is applied using a legal method of electronic signature that complies with the commissioning state's specific requirements, if any. Options could include click-sign (clicking the mouse cursor on the "sign here" link) or an image of their written signature captured with a stylus, touchscreen or signature pad.

What is remote e-notarization?

Remote e-notarization uses modern technology to expand the definition of "in the presence of" the notary, which is a foundational requirement of notarization in all state laws (even for electronic...

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