Bulletin: IN2020004

Dear Associates:

During the 2020 Indiana Legislative session, Senate Enrolled Act No. 340 (“Act”) passed and become law effective July 1, 2020. The Act changed an “or” to an “and” in Indiana Code 32-21-2-3(a) [section available at end of Bulletin], so that now both a notarial acknowledgment and proof must be completed on an instrument to be properly recorded.

We understand that the Indiana Recorder’s Association is working to reverse this change in the next legislative session, it is still a valid law as of July 1, 2020.

Acknowledgment:

An acknowledgment is a formal declaration before a notary public or other notarial official that the instrument presented is the free and voluntary act of the party executing or signing that instrument and that signature is genuine. [Indiana Notary Public Guide (Revised 4-30-2019)]

Proof:

The term “proved” is found in I.C. §§32-21-2-3, 32-21-2-6, and 32-21-2-11. One form of common law “proof” was and is to have a disinterested person (witness) watch the grantor or other signer sign a document or instrument. The witness then signs his or her name on the document or instrument and appears before a notarial officer so the notarial officer can indicate in a notarial certificate that the witness, under oath, disclosed signing his or her name to the document or instrument and seeing a certain grantor or other signer execute or sign the document or instrument.

The Witness for a Proof is a disinterested third person who does not have a financial / ownership / contract interest in the transaction being notarized. The Witness must be over the age of 18; not related to a transaction party; and is not the buyer / seller /real estate agent / lender in the transaction.

The Witness takes an oath and is affirming that he / she:

1. knows the Signer to be the person described in the instrument;
2. was present when the instrument was signed by the Signer;
3. saw the Signer execute the instrument;
4. signed his or her name as a Witness; and
5. if appearing before the remote notarial officer by audio visual communication, the witness should also provide their physical location during the remote notarization signing event.

Sample Proof:

WITNESS to the above signature(s):

____ Witness’ Signature __________________
Witness’ Typed or Printed Name

STATE OF INDIANA
COUNTY OF______________
Before me, a Notary Public in and for said County and State, on DATE, personally appeared the above named WITNESS to the foregoing instrument, who, being duly sworn by me, did depose and say that he/she knows Grantor / Signer Name to be the individual(s) described herein and who executed the foregoing instrument; that said WITNESS was present and saw said Grantor / Signer Name execute the same; and that said WITNESS at the same time subscribed his/her name as a witness thereto. 

______Notary Signature_______________ NOTARY SEAL/STAMP Requirements:
NOTARY PUBLIC Notary Name exactly as Commission
(TYPED OR PRINTED NAME) Notary Public - State of Indiana

Seal
My Commission Expires: _______________
Commission No. _____________________

A copy of the Proof of Execution Certificate by Witness can be viewed here.

What does this mean for our agents?

Every transaction completed on or after July 1, 2020, is required to have a witness and proper proof included on all documents or instruments to be insured. This includes deeds, mortgages, affidavits, liens, and all other documents to be recorded.

At this time, we understand that various county Recorders may accept documents for recording without a proof. HOWEVER, if recorded without the proof the documents will not be insurable by Stewart without Underwriting approval.

Please confirm with your local Recorder that they will accept documents and instruments without a proof that were validly executed prior to July 1, 2020, which will be recorded on or after July 1, 2020.

If a property search discloses a deed recorded after July 1, 2020, without a proof in the title chain, it may not be insurable. Be particularly aware of quit claim deeds, self-prepared deeds, and deed forms found on the internet that do not include the witness and proof.

Please contact Stewart Underwriting for additional requirements and possible approval to insure your transaction.

You will need to review your closing process to make sure that you have / there is a qualified witness to attend the closing and execution of recordable documents and instruments. In person, electronic, and remote notarization can all still be completed provided the witness is present.

Underwriter Mutual Indemnity Agreement:

If your transaction has an improperly executed deed in the title chain, and the owner has an Owner’s Policy for title insurance issued by a participating Underwriter to the Indiana Inter-Underwriter Indemnification Agreement (MIA), please contact Stewart Underwriting prior to relying upon the MIA.

Frequently Asked Questions:

The Indiana Land Title Association has developed a series of Frequently Asked Questions (FAQs), which will be available at ILTA Website.

SECTION 1. IC 32-21-2-3
(AS AMENDED BY P.L.14-2019, SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2020]:

Sec. 3. (a) Except as provided in subsection (c), a conveyance, a mortgage, or an instrument of writing to be recorded must be:

(1) acknowledged by the grantor; (or was deleted) and (was added)
(2) proved before a:

(A) judge;
(B) clerk of a court of record;
(C) county auditor;
(D) county recorder;
(E) notary public;
(F) mayor of a city in Indiana or any other state;
(G) commissioner appointed in a state other than Indiana by
the governor of Indiana;
(H) minister, charge d'affaires, or consul of the United States
in any foreign country;
(I) clerk of the city county council for a consolidated city, city
clerk for a second class city, or clerk-treasurer for a third class
city;
(J) clerk-treasurer for a town; or
(K) person authorized under IC 2-3-4-1.

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

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