Bulletin: NC2020004

Dear Associates:

Please note that remote notarization and Remote Online Notarization are different processes with different requirements.

On May 4, 2020, Governor Cooper signed House Bill 1043 amending various sections of the North Carolina General Statutes to facilitate the social distancing necessary to prevent the spread of COVID-19.

Stewart is committed to our partners and providing solutions to allow attorneys, 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 affiliate attorneys and agents the tools necessary to provide service to their customers, we are implementing the following procedures, outlined below, which are effective through August 1, 2020 (unless extended or otherwise modified).

I. TECHNOLOGY

Stewart agents may use assistive audio/video technologies to facilitate the notarial and witnessing acts.

In order to qualify for use, any audio/visual technology must:

1. Provide for the audio/video preservation of the entire notarial transaction, which must be retained by the closing attorney, settlement agent or issuing agent for a minimum of seven (7) years.

2. Provide for secure storage and transmission of the non-public personal information.

3. Provide for verification of location of the signers, which must be within the boundaries of the State of North Carolina. Signers must execute a certificate in a form acceptable to the company certifying that he or she was located in North Carolina at the time of execution of the closing documents.

Suggestions for Audio/Video Conferencing Technology:

The statutes do not identify technology which would satisfy the audio/visual requirements of the emergency rules and care should be taken that any platform chosen adequately provides for the ability to record the live session and that both the Signer and the Notary have devices which support the chosen platform. As a convenience to our attorneys and agents and to aid your search in locating a service provider, we’ve listed some providers which offer audio/video conferencing and the ability to record such conference.

Microsoft Teams: https://support.office.com/en-us/article/record-a-meeting-in-teams-34dfbe7f-b07d-4a27-b4c6-de62f1348c24

GoToMeeting: https://www.gotomeeting.com/features/online-meeting-recording

Cisco Webex: https://help.webex.com/en-us/nzpa89j/Manage-Cisco-Webex-Meetings-Recordings

CONDITION FOR THE NOTARIAL PROCESS

NCGS Section 10B-25 was added by providing for Emergency Video Notarization during the COVID-19 State of Emergency. The Section provides as follows:

A. Notwithstanding any other provision of law, a notary may perform an Emergency Video Notarization using video conferencing technology, provided all of the requirements of this Section are satisfied. A notary who is not satisfied that the principal's identity has been proven by satisfactory evidence shall not be required to complete an Emergency Video Notarization. An Emergency Video Notarization shall not change any originality verification requirements for recording with a register of deeds, clerk of Superior Court, or other government or private office in this state. Nothing in this Section shall apply to any notarization under Article 20 of Chapter 163 of the General Statutes.

B. As used in this Section, video conference technology is electronic communication that:

(1) Occurs in real time and allows direct interaction between the principal seeking the notary services and the notary so that each can communicate simultaneously by sight and sound through an electronic device or process.

(2) Includes audio with sound clear enough that each participant in the notarial act can hear and understand all other participants.

(3) Has sufficient quality to allow a clear and unobstructed visual observation of the face of each participant, and any identification provided by the principal for a sufficient time to allow the notary to determine if it is satisfactory evidence. The notary shall determine if the time is sufficient.

(4) Is not prerecorded video or audio or both.

(5) May be capable of recording by means of one of the following:

a. The video conference technology’s recording and storage services.
b. An independent video recording device.
c. Electronically saved screenshots clearly showing each participant's face, identification presented by the principal, and the notarized document.

C. The requirement of personal appearance, appearance in person before a notary, physical presence, and presence, as those terms are used in this chapter, are satisfied for the purpose of an Emergency Video Notarization. If the notary is physically present in North Carolina, the principal verifies to the notary that he or she is physically present in North Carolina at the time of the notarization, identifies the county where he or she is located at the time of the notarial act, and the principal and notary use video conference technology that complies with the requirements of this section.

D. A notary who has personal knowledge of a principal may rely on the video conference technology to verify the principal’s identity unless the notary, in the notary's sole discretion, requires satisfactory evidence. A notary who does not have personal knowledge of a principal shall require satisfactory evidence of the principal’s identity. The requirement of satisfactory evidence, as that term is used in this chapter, is satisfied for the purpose of an Emergency Video Notarization if identification of the principal is based on at least one document that meets all of the following:

(1) Is current or if expired did not expire prior to March 10, 2020.
(2) Is issued by a federal, state, or federal or state recognized tribal government agency.
(3) Bears a photographic image of the principal’s face.
(4) Has both the principal’s signature and a physical description of the principal.

E. The notary shall use video teleconferences technology to observe each principal sign each document that is to be notarized. The principal shall verbally state what documents are being signed for the notarial record. After the document is signed by the principal, the principal or the principal’s designee shall do the following:

(1) If an original wet-signed notarization or an original wet-signed document is not required, transmit a legible copy of the signed document to the notary by fax or other electronic means on the same day it was signed. The notary shall notarize the document on the same day the notary receives the document and the notary shall transmit the notarized document back to the principal or the principal’s designee by physical delivery, fax, or other electronic means on the same day the notary signed document.

(2) If an original wet-signed notarization or an original wet-signed document is required, transmit a legible copy of the signed document by fax or other electronic means to the notary on the same day on which the document was signed and also delivered the original signed document to the notary by mail or other physical method. The notary shall compare the original document with the document transmitted by fax or other electronic means. If the fax or electronic document is the same as the document received by mail or physical delivery, the notary shall notarize the wet signature on the original document and date the notarial act as of the date of the acts observed using video conference technology and promptly transmit the original wet-notarized original document to the principal or the principal’s designee by mail or other physical delivery as directed by the principal.

F. If the notarial act is an oath or affirmation, the notary shall administered the oath or affirmation to the affiant using video conference technology.

G. An acknowledgement or Jurat Certificate for an Emergency Video Notarization shall include all of the following:

(1) The North Carolina County in which the notary public was located during the Emergency Video Notarization.
(2) The North Carolina County in which the principal stated he or she was physically located during the Emergency Video Notarization.
(3) The following statement:

“I signed this Notarial Certificate on _______ (date) according to the Emergency Video Notarization requirements contained in G.S. 10B-25.”

H. If an acknowledgement or Jurat Certificate provided to a notary does not include the statement required by Subsection (G) of this Section, the notary shall insert the statement. By making or giving a notarial certificate using Emergency Video Notarization, whether or not stated in the certificate, a notary certifies compliance with all of the requirements of this Section.

I. A notary who performs an Emergency Video Notarization shall record information about the notarization in a notary Journal that is the exclusive property of the notary. The journal shall be retained by the notary for at least 10 years and may be maintained in electronic form. The notary shall keep the journal in a secure location and shall not allow another person to make entries in the journal. A notary may surrender the journal to the notary's employer upon termination of employment, but the notary shall also keep and maintain an accurate copy of the journal.

J. At a minimum, for each Emergency Video Notarization, the notary shall include the following information in the journal:

(1) The time of day when the notary observed the signing of the document by each principal and was presented with the principal’s acceptable form of identification.
(2) The date of the completion of the Emergency Video Notarization notarial certificate.
(3) The last and first name of each principal.
(4) The type of notarial act performed.
(5) The type of document notarized or proceeding performed.
(6) The type of acceptable form of identification presented, including, if applicable, the issuing agency and identification number on the identification presented.
(7) The type of video conference technology used during the Emergency Video Notarization.
(8) A statement that the notary and each principal could see and hear each other.
(9) Whether any other person was present with the principal at the time of signature and if so, the name of that person.

K. A third party involved in a transaction that utilizes an Emergency Video Notarization may require additional information to be included in the journal kept by the notary under Subsection (J) of this Section such as inclusion of a recording in the notary's journal or the method used by the notary to determine that a wet signed original document is the same as the faxed or electronically submitted document.

L. As a public official, a notary shall maintain the confidentiality of a principal’s documents at all times.

M. The secretary may issue interpretive guidance or issue emergency or temporary rules as necessary to ensure the integrity of the Emergency Video Notarization measures provided for in this Section.

N. This Section shall expire at 12:01 AM on August 1, 2020; provided, however, all notarial acts made in accordance with this Section and while this Section is in effect shall remain effective and shall not need to be reaffirmed.

III. CONDITIONS FOR VIDEO WITNESSING

NCGS Section 10B-200 was added by providing for Video Witnessing during the COVID-19 State of Emergency. The Section provides as follows:

A. Notwithstanding any general or special law to the contrary, any person who witnesses the signature of a record through video conference technology shall be considered an “in person” witness and the record shall be considered to have been signed by the principal signer “in the presence of “search witness, if the video conference technology allows for direct, real-time audio and video Interaction between each principal signer and the witness.

B. Notwithstanding any general or special law to the contrary, an attending witness to a record shall be considered to have signed such record in the presence of the principal signer, if all of the following are satisfied:

(1) the signature of the principal signer is witnessed by the attesting witness in accordance with the requirements of Subsection (A) of this Section.
(2) The attesting witness immediately thereafter signs such record while the video conference technology still allows for direct, real-time audio and video interaction between the principal signer and the attesting witness.

C. Any record witnessed pursuant to this Section shall contain all of the following:

(1) A conspicuous statement indicating that the record was witnessed by one or more witnesses physically located in the state of North Carolina pursuant to this article.
(2) The County in which each remote witness was physically located when witnessing execution of the record.
(3) The County in which each principal signer was physically located during the witnessed execution of the record.

D. Notwithstanding any general or special law to the contrary, absent an express prohibition in a legal document against signing in counterparts, any record witnessed pursuant to this article may be signed in counterpart, which counterparts, when combined, shall create a single original record.

IV. ADDITIONAL UNDERWRITING REQUIREMENTS:

1. Parties, including lender, must authorize in writing the use of the video notary process.

2. If the technology platform is not listed on the above link, a Stewart Underwriter must approve the technology vendor. Please contact the local Stewart Underwriter for approval.

3. The transaction must be a cash sale/purchase; purchase money transaction; or a transaction involving a refinance, either with or without cash-out with a policy amount of $1,000,000 or less. Commercial transactions or transactions for amounts in excess of $1,000,000 may be considered, but the issuing office must obtain specific Stewart Underwriting approval.

4. All parties notarizing or witnessing a document via video conference technology must meet the requirements of N.C.G.S. as set forth in Sections II and III above and must be physically located in North Carolina at the time of the audio/video conference. The notary must sign a certificate of compliance on a form provided by Stewart.

5. The attorney or settlement agent must verify that the recording office will accept the documents notarized and witnessed under this process.

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

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