In response to the COVID-19 virus, lawmakers across the country are scrambling to pass a number of measures to blunt the ill effects of the pandemic to allow for real estate and loan closings. Specifically, New York Governor Andrew Cuomo has taken steps to enable “remote notarizations” in an effort to maintain social distancing practices.
A. THE EXECUTIVE ORDER
On March 19, 2020, New York Governor Andrew Cuomo signed Executive Order No. 202.7: Continuing Temporary Suspension and Modification of Law Relating to the Disaster Emergency (“EO 202.7”). EO 202.7 allows, among other things, that any “notarial act that is required under New York State law is authorized to be performed using audio-video technology provided the following conditions are met:
(i) The person seeking the Notary's services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after; (ii) The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing); (iii) The person must affirmatively represent that he or she is physically situated in the State of New York; (iv) The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed; (v) The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and (vi) The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.”
B. PRACTICE TIPS
In light of this recent change in the law, notaries, lenders, and insurers—among others—must be aware of the new regulations required in remote notarizations to maintain compliance and thwart potential acts of fraud. As such, readers should consider implementing the following tips to ensure compliance in this novel “remote” environment:
1. VERIFY AN UNKNOWN SIGNER’S IDENTITY: A remote notary should take extra precautions to verify the identity of an unknown signer. Under EO 202.7, if the signer is not personally known to you, the signer must present valid photo ID to you during the video conference, not merely transmit it prior to or after the notarial session. Further, by way of example, if the unknown signer produces a driver’s license as a form of identification, be sure to carefully inspect the name, birth date, photograph, height, eye color, and listed address for compliance and authenticity.
2. VERIFY THE SIGNER’S LOCATION: EO 202.7 requires that the signer “must affirmatively represent that he or she is physically situated in the State of New York.” Accordingly, a remote New York notary must verify where the signer is remotely situated before performing the notarial act.
3. RECORD THE SESSION: A remote New York notary should make an audio-visual recording of the notary session and preserve the recording for an extended period of time. Although EO 202.7 does not specifically mandate that a remote notary record (or preserve) the notary session, such a practice will ensure compliance with the requirement that “[t]he video conference . . . allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing).”
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