[WSBARP] More Explanation about Remote Notary Acknowledgments

[Bickel, Dwight]

Resent with corrections of the prior message. I apologize for the duplication.

First, a short answer to Kary Krismer’s question:

My earlier message references Virginia because that is one of the states with a statute that authorizes a notary to witness acknowledgments using remote computer technology. That statute does not limit its use to Virginia transactions. My comments therefore apply to any state that has a revised notary public law that authorizes a notary to witness an acknowledgment without being face-to-face.

Is “remote acknowledgment” authorized?

A remote acknowledgment is statutorily authorized by notary public laws in Virginia, Montana, Texas and Nevada, although the Texas and Nevada laws do not become effective until July 1, 2018.  Montana authorizes remote acknowledgment only if the transaction is in Montana. I have not reviewed the Texas notary law, but that may be the source of authority relied upon by Stewart in WA because it corporate headquarters is in Texas.

Definitions may be helpful:
•       An “acknowledgment” is the act/words of the signing person that they signed the document. WA law requires this to be done for a conveyance.
•       A “certificate of acknowledgment” is the statement on the document itself that the Notary Public signs stating that he/she witnessed an acknowledgment.
•       An “electronic acknowledgment” refers to an acknowledgment certificate that is signed by the notary public on a computer, similar to electronic signatures. The WA statute change mentioned previously will allow the electronic notary certificate after July 1, 2018. An electronic acknowledgment could be after witnessing an acknowledgment in person [“personally appeared before me”], as the WA notary law clearly requires, or it could be after a remote acknowledgment where the signing person is not in the same place.
•       A “remote acknowledgment” means the notary witnesses an acknowledgment while physically anywhere else in the world where the notary is licensed by that place. The notary would require a computer [or maybe even a smart phone]. The notary certificate could be on a paper document, or done electronically. The signing person could be anywhere  in the world with a computer [or maybe even a smart phone]. A remote notary could witness an acknowledgment of a person in the adjoining room, and it still is not “personally appeared before me.”
•       “Standards” means that the state authorizes a remote acknowledgment if a notary has a specific license, if the notary uses specific software, if the notary follows specific document retention and transmission protocols, and if the notary follows specific methods to reduce the risk of forgery, incompetency and duress.
Is a “remote acknowledgment” a valid acknowledgment for a WA conveyance?

The premises of the logic for use of a remote acknowledgment for a WA transaction are that if the notary is licensed in the other state to witness an acknowledgment using a remote computer connection, and WA allows the acknowledgment by a notary if done pursuant to the notary laws of a different state, then the Virginia acknowledgment certificate signed by a Virginia-licensed notary will be valid for WA transactions.

My concerns include that the Virginia licensed notary is not satisfying WA law requiring an acknowledgment, unless the signing person “personally appears before” the notary in Virginia, as defined in WA laws for a compliant acknowledgment. Prior to July 1st, WA law does not authorize an electronic acknowledgment certificate either. Even after that new notary law [SB 5065<http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Senate%20Passed%20Legislature/5081-S.PL.pdf>], WA still will not recognize a remote acknowledgment until a future law is passed. WA is awaiting promulgation of standards before it changes the requirements for an acknowledgment.

WA law [65.08.030<http://app.leg.wa.gov/RCW/default.aspx?cite=65.08.030>] says a defective acknowledgment certificate does not invalidate the document and it still constitutes notice to a third party of the conveyance. However, note that WA law does not waive the requirement for an acknowledgment. If the remote acknowledgment is not a compliant acknowledgment, it may not matter that Virginia says its notaries there may witness a remote acknowledgment using unknown software and unknown methods to reduce the risk of forgery, incompetency and duress.

As we go into the future, we do so watching in the rear view mirror<https://www.goodreads.com/quotes/618118-we-look-at-the-present-through-a-rear-view-mirror>. If I was your lawyer, I would advise you not to use a remote acknowledgment until the WA Legislature accepts that future technology. It will.

Dwight A. Bickel
Regional Counsel
Fidelity National Title Group
701 - 5th Avenue, Suite 2700
Seattle, WA 98104
Phone: (206) 370-3189
E-mail: Dwight.Bickel at fntg.com<mailto:Dwight.Bickel at fntg.com>


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