Bulletin: DE2020001

Dear Associates:

On April 15, 2020, Delaware Governor Carney issued the Eleventh Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat, a copy is attached. In the declaration, the Governor modified certain parts of Delaware’s Notary Law by allowing the assistance of audio-visual technology to facilitate the social distancing necessary to prevent the spread of COVID-19. 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 will remain in effect until the declaration expires or is otherwise modified. Stewart agents may use assistive audio-video technologies to facilitate the Notarial act.

During this time if you use the audio-visual assistive technology, the requirements are as follows:

• The technology platform must provide for the audio/video preservation of the entire notarial transaction and as a best practice and to also comply with guidelines of FNMA and FHLMC, you should retain the recording  of the video conference for 7 years.
• Technology must provide for secure storage and transmission of the Non-public personal information.
• Technology must provide for verification of location (Principal and Notary must be in DE).

Conditions for Notarial process if using audio-visual assistance:

• Only Delaware licensed attorneys may use this feature.
• Notary and signer via technology platform have face to face interactive (live) exchange wherein the signer(s) affirmatively state that they are physically located in Delaware.
• The notary must verify ID during the video conference; not merely by transmitting the identity evidence before or after the video conference, but in one of the following ways:
  • 1) by personal knowledge of identity;
  • 2) by examining two Identity Documents as set out in 29 Del. C. §4321(21); or
  • 3) by examining one Identity Document and one document postmarked or dated within 60 days from the date of the notarization (i.e. utility bill, cable bill, voter registration card, etc.) that includes the signer’s name and address as stated on the Identity Document.
• Signer then executes documents via video for Notary to witness.
• The signer then sends (contemporaneously with execution via email or fax the signed Document and signature page and copy of ID) to Notary.
• Notary completes a Certificate of Notarial Act pursuant to 29 Del. C. §§ 4327, 4328; and the notarized document shall contain a statement or a separate certification that it was “notarized and/or witnessed pursuant to the 11th Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat approved on April 15, 2020, and provide the Authorized Notarial Officer’s Name and Bar Number/License Number.”
• The signer then sends the signed document and wet-signature page to Notary to re-apply Notarial seal to maintain wet signature in the file or for counties requiring a wet signature for recording.

Additional underwriting requirements:

• Parties, including lenders, must authorize in writing the use of the video notary process.
• The title company must verify County Recorder will accept the Notary performed in this process.
• Please note this change: The approval of the Audio-Visual assisted notarization is limited to policies issued in connection with transactions up to $1,000,000. Issuing offices must obtain Underwriter approval for real estate transactions in excess of $1,000,000.

Stewart Underwriting will continue to monitor the situation and keep you apprised of any developments by updating and supplementing this bulletin as needed.  

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

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