Electronic notary; notary to notarize document if signer is not present if identity is established. (HB2318)

Introduced By

Del. Kathy Byron (R-Lynchburg)

Progress

Introduced
Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law

Description

  Electronic notaries.  Provides that a person applying to be commissioned as an electronic notary public is not required to be commissioned as a notary public first. The bill also allows, in the case of an electronic notarization, a notary to notarize a document when the signer is not in the notary's presence if satisfactory evidence of the identity is established. Furthermore, the bill allows satisfactory evidence to be based on video or audio conference technology that permits the notary to communicate with and identify the principal at the time of the notarial act. Amends § 47.1-12, § 47.1-14, § 47.1-15, § 47.1-2, § 47.1-7, § 47.1-8, of the Code of Virginia. Read the Bill »

Outcome

Bill Has Passed

History

DateAction
01/12/2011Committee
01/12/2011Prefiled and ordered printed; offered 01/12/11 11102751D
01/17/2011Referred to Committee for Courts of Justice
01/18/2011Assigned Courts sub: #2 Civil
01/19/2011Referred from Courts of Justice
01/19/2011Referred to Committee on Science and Technology
01/20/2011Impact statement from DPB (HB2318)
01/26/2011Reported from Science and Technology with substitute (13-Y 8-N) (see vote tally)
01/26/2011Committee substitute printed 11104664D-H1
01/27/2011Read first time
01/28/2011Passed by for the day
01/28/2011Impact statement from DPB (HB2318H1)
01/31/2011Read second time
01/31/2011Committee substitute agreed to 11104664D-H1
01/31/2011Speaker ruled Amendments by Delegate Marshall, R.G. not germane
01/31/2011Amendment by Delegate Marshall, R.G. withdrawn
01/31/2011Amendment by Delegate Byron agreed to
01/31/2011Engrossed by House - committee substitute with amendment HB2318EH1
01/31/2011Printed as engrossed 11104664D-EH1
02/01/2011Read third time and passed House (72-Y 25-N)
02/01/2011VOTE: PASSAGE (72-Y 25-N) (see vote tally)
02/01/2011Impact statement from DPB (HB2318EH1)
02/02/2011Constitutional reading dispensed
02/02/2011Referred to Committee for Courts of Justice
02/09/2011Reported from Courts of Justice (9-Y 5-N 1-A) (see vote tally)
02/11/2011Constitutional reading dispensed (39-Y 0-N) (see vote tally)
02/14/2011Read third time
02/14/2011Passed Senate (29-Y 10-N) (see vote tally)
02/17/2011Enrolled
02/17/2011Bill text as passed House and Senate (HB2318ER)
02/17/2011Impact statement from DPB (HB2318ER)
02/17/2011Signed by Speaker
02/20/2011Signed by President
03/26/2011G Approved by Governor-Chapter 731 (effective - see bill)
03/26/2011G Acts of Assembly Chapter text (CHAP0731)

Video

This bill was discussed on the floor of the General Assembly. Below is all of the video that we have of that discussion, 3 clips in all, totaling 11 minutes.

Comments

Marilynn Wells writes:

While I see the need to establish criteria for e-notarization, I don't agree that the person doesn't first need to be a commissioned notary public. I am also concerned that it eliminates that traditional notary criteria, of establishing identity through identification proof. I see too much potential for fraud if basic notary procedures are not adhered to.

Ardel Richter writes:

Where to start? Doesn't need to be a Notary Public--no knowledge base needed? What a bad concept. But, lack of personal appearance is the deal-breaker...not only of the person, but how does one actually 'see' or, more importantly, 'believe' an ID in this constantly evolving technology of photo-shop, etc., etc.
I, also, see way too much fraud potential if notary procedures that have endured for centuries are thrown out.

Shoshana Roller writes:

I also feel that the person needs to be a commissioned notary public. The notary public needs to know their state's laws.
I see too much opportunity for fraud here. Sometimes a fake ID just feels different. One can better see a possible fraudulent ID by touching it rather than by merely seeing it via a webcam.
Also, the possibility of coercion is greater than if the signer was in front of the notary. It would be impossible to see if someone was holding a weapon such as a gun or a club off-camera.

Waldo Jaquith writes:

Say, what state do y'all live in?

(*crickets*)

Robert Koehler writes:

To do away with the requirement that a signer physically appear before a notary defeats the purpose of notarization. How can a notary determine whether or not there is a person with a gun pointing at the signer? How can the notary hold the physical ID card to inspect it for alteration? This goes against everything that notaries have been doing for centuries.

Linda Spanski writes:

ID fraud is a continuing problem.. States are adding features to driver's licenses that can't be seen via webcam. And to allow someone to be an electonic notary without being a commissioned notary public? That doesn't make sense.

D.W. Patterson writes:

Why would you authorize a non notary to notarize? Who is that person accountable to and what traing has that person had? What State's laws apply?

Personal appearance has always been required for notarizations for very good reasons, such as verifying identity and freedom from duress.

This is a very bad idea!

Yvonne Rathbun writes:

Technology can enhance the notary world but there are many issues with this bill. First, why is this a separate commission given that a new "person" requesting an electronic notary can perform all notary public duties and services of a commissioned notary, yet a currently commissioned notary public CAN NOT perform electronic notary public functions? So,a currently commissioned notary must apply and pay an additional fee to become an electronic notary? Mmmm. The bill sounds like the majority of the people that would be able to use this new technology would be those that possess a digital cerificate or a PIV. However, you make it sound like this will be the norm in the future. Is this applicable to loan documents? The more important question is why do you give the electronic notary the priviledge of accessing public and vital private information? Isn't that another license like that of a private investigator? Where does it stop for citizens to still have some privacy? This bill also adds an additional layer of responsibility and increased costs to the electronic notary yet I do not see an increase in the fee the notary may charge. You are requiring the electronic notary to purchase high tech items,and security. Do you have authorized vendors in place for that? You are requiring the electonic notary to ensure the inegrity and security and authenticity of electronic notarizations. How do you propose they do that? Just what is a PIV? How secure is it? More and more questions, this is a good start but needs much more thought before implementation.

Lisa Thornton writes:

Video notarizing will just open the floodgates for fraud. People could be on the video in disguises - wigs, fake mustaches or beards, wear theatrical makeup....a husband could pretend to be his wife and vice versa - on video - basically anybody could be anyone OTHER than who they really are - all for obviously fraudulent purposes.

On another note, people trying to nullify or breach legitimate contracts or transactions they freely agreed to can LIE and claim that someone else was in the room, outside of the video screen view, holding a gun, knife, baseball bat, taser, etc., and forced them to sign.

The scam artists will just take a photo of themselves in their disguise and photo-shop that on to a legitimate ID and put that online. No one will be the wiser until the victim is wiped out monetarily or the victim is arrested for some crime they never committed because the identity thief continued using the victim's ID for their crime sprees and racked up charges all over the country.

Video notarizing will take identity theft and blue/white collar crime to a whole new level - to the detriment of society.

Linda Hubbell writes:

This would totally erode the integrity of the position of notary public. Further, passage of this bill would open a door to fraud the likes of which we've never seen.

Amy Tatusko 367584 writes:

I am a notary public for the Commonwealth. This is a very bad idea. I cannot with good conscience participate in this type of video verification. Please reconsider and or kill this bill. Thank you.

Gerry Ashton writes:

This would be a major departure from the standards required in most states. When other states, or companies and individuals in other states, get wind of this, they may respond by refusing to recognize any notarization performend in Virginia.

Furthermore, there is no precedent for the notary to be located in one state and the signer in another. The notary has no way to determine the location of the signer. Thus the venue and law applicable to the notarial act is thrown into confusion.

James Dawson writes:

How will you subpoena the person doing the notarization in a court case involving any type of fraud? Deposition? etc.

Vikki Miller writes:

Please just do not let this bill pass. It is wrong in every way, not to mention all the citizens livelyhoods that potencially could be ruined by allowing this type of notarization to be available.

This comment is #14 in this list how many more do you need to explane that it just cannot be passed.

Karen J OBrien writes:

This bill, which is duplicated in the Senate, may have good intentions, but reeks of potential unintended consequences.

My primary concern is, by Virginia's own legislation, a person is defined:
§ 59.1-480. Definitions
(11) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public body, public corporation, or any other legal or commercial entity.

If you give the authority of a notary public to a "person" rather than to an individual, then any representative of any defined "person" can electronically notarize documents.

Additionally I noted that there is another bill proposing a change which allows for an electronic signature on the application to be a Virginia Notary Public.

While the intention may be to update processes to accommodate advanced technology, at some point there must be some human to human contact in order to maintain privacy and security in transactions.

Sandra J Clark writes:

My responsibility to correctly identify the person presenting a document for notarization is severly hampered if that person is not in front of me. I need to be able to verify their ID. It is not just a matter of looking at a picture, I want to examine it for tampering such as a picture being inserted or taped onto it, I want to verify dates for tampering, smudges, etc. I want the person in front of me period! That is the only way to protect myself and the consumer from fraud.

C Ronnie Clark writes:

As a Notary, commissioned by the Commonwealth of Virginia, I would have to question the motives behind this bill.

Glenn Strickler writes:

The notary is quite often the last barrier to fraud. This bill removes that protection for the consumer.

In the era where the country has already suffered at the hands of greed and fraud, why remove one of the last protections?

I received an email just today (Sunday Jan 16) telling me to stay out of Virginia's business, since I live in California. People in Virginia have made real estate purchases in California. More often recently as the prices here have hit rock bottom. Those documents were notarized in Virginia then filed in California. I am sure the same is true for many other states. So what happens in Virginia doesn't stay in Virginia. It affects everyone to some extent or another. The relaxing of ID requirements in any state is both dangerous and will affect every other state, so respectfully, it is our business.

James N writes:

This matter is disturbing. I am not an attorney, so I don't know if this law is constitutional, but I would hope the law will not be enacted to replace personal appearance. It seems that there is a movement in this country to re-define the law. For my money, the law can be interpreted but should not allow itself to be changed by a re-definition. In essence, the re-definition is changing the law by saying you are not changing it. To me, it is using semantics and sophistry to create a false logic. I hope this law goes down in flames

Claudine C. Osborne writes:

Are we trying to prevent fraud by having the signer of documents appear in person in front of a live Notary? With video conferencing the notarization this will open the door to more fraud that we can ever imagine! Please vote No to this terrible idea!
Claudine C. Osborne

Linda Adams writes:

As a mobile notary, I have concerns with this bill and the companion bill in the Senate; first with confidently determining that a document signer is who they say they are, that they signed the document willingly, and that they are aware of its contents by notarizing via video conference. Other concerns relate to different sets of criteria for the notaries.

Lisa Marie Scherpf writes:

With fraud so prevalent in our county now, it makes you wonder what the writers of this bill are thinking! The possibility of scams, fraud, identity theft etc is unlimited. This bill would make it so much easier for those people. Shame on you!!!

Sandy writes:

There is a company based out of New Jersey that currently uses such a technology, though it is quite illegal in that state, at this time. They use web cams to view the document signers and the assigned notary public. Poor quality of the web cam and inconsistent internet transmissions, made one document signer not able to see or hear the notary public, and was eventually asked to call the notary public directly. Then when the document signer received their notarized document, the document signer, and the notary publics’ signature and stamp were not at all legible! Turned out to be a total waste of time for the document signer not worth the expense they paid.

If this and the other proposed notary bill passes, not only would the public be in danger, of not having their documents legally notarized, but the integrity of the notary public, who is a trusted third party that lends integrity and reliability to sensitive commercial and legal transactions, would severely be comprised.

These proposed bills, if passed, will lead to a very rapid rise of notary related fraudulent activities, for the commonwealth of Virginia. Does Virginia want to open the gate to the eventual flood of notarial fraud?

Renee Ezinga writes:

Create a new title “Electronic Notary Public” to have the legal right to act in the same capacity as a Notary Public with many more liberties including but not limited to not requiring personal appearance. To top it off this law includes the fact that a Notary Public with all the integrity this Public Office has historically and factually proven to have throughout the history of this county cannot provide this service. To exclude an actual Notary Public from this service shows that the person/people involved with creating and attempting to pass this bill is/are educated enough with the function and integrity of this Public Office to know they would not get support from them to pass and then act in this capacity. The documents that need to be notarized can be and typically are documents that are life changing for the person whose signature is being notarized. Passing this bill would just open avenues of other forms of public offices that have been sworn to serve and protect the public to simply be replaced by anyone with access to the internet.

Chrys Sawney writes:

I can't see how anyone could verify identity, willingness or understanding of the documents via video. This is probably seen as a boon to banks to expedite the loan process. What do they care if there's a little fraud happening here or there as the government will bail them out of their messes anyway. Our citizens need some protection from unscrupulous operators.

L Olsen writes:

This is wrong on so many levels, where do you begin. I cannot imagine someone trying to identify another person by viewing their ID via webcam. You need to actually see it, hold it, etc to be sure it is not a fake. You need to be able to make a comparison of their signatures and I just dont know how you can do this via grainy webcams. It just opens the floodgates for fraud, and who do you think will be held liable? The notary of course.

Kathy Fletcher writes:

This legislation would affect approximately 4.5 Million notaries in the United States alone. Think of the impact this legislation would have on the nation. The economical impact could be devastating.

cindi writes:

And this is how we start to clean up fraud?Vote no!

Editor’s Pick
Linda writes:

I am a notary for the Commonwealth of Virginia. Requiring personal appearance of the signer in front of the notary is one of THE MOST fundamental elements of any notarial act, and is one of the best ways that fraud can be prevented by unscrupulous signers. I am absolutely astonished that our lawmakers would even consider allowing non-appearance or appearance by video camera in lieu of personal appearance in front of the notary. Having the signer in front of you, holding the ID that has been presented, observing their demeanor, etc., are things which are essential to any proper notarial act. I have refused to notarize based on suspicious ID. I can just imagine how fabricated ID (Photoshop, etc) could be successfully presented by video cam. And I can just see all the title companies and lenders who will set up their offices with electronic notarization capabilities via video cam, and thus fraud will run rampant. I cannot tell you how many times over the years that companies have requested me to backdate my notary certificates on documents or to go ahead and notarize even though the signer’s identification is not in order, or if the paperwork was drawn up incorrectly and does not match the ID (for example, middle name being incorrectly listed on documents as first name, such as “Jane A. Doe” with documents drawn up as “Anne J. Doe”). Of course I refuse these requests. Often times the traditional notary is the last stop in preventing improper transactions from being completed. It will be a free-for-all in Virginia if this bill passes.

I am confused about the wording “Provides that a person applying to be commissioned as an electronic notary public is not required to be commissioned as a notary public first.” I have reviewed the most recent Virginia Notary Public Handbook (2009 edition as published on the Secretary of the Commonwealth’s website) and it states, “An electronic notary public may act as a notary public in all respects upon being commissioned as an electronic notary public.” I am reading this to mean that an electronic notary may also act as a traditional notary within Virginia. However, if you go to the Secretary’s website, it states “In order to be an electronic notary, you must first be a commissioned Virginia notary public.” So it seems to me that the bill is saying that the electronic notary commission is also considered to be valid for the same notary to perform as a traditional notary within Virginia. If I am interpreting this passage correctly, I have no problem with that as long as an electronic notary is held to the same standards as a traditional notary.

But once again, personal appearance should be MANDATORY for ALL notarial acts – whether electronic or traditional. Virginia will be opening the flood gates to fraud if non-appearance or appearance by video cam is allowed.

Va Notary writes:

http://www.findmyid.com/clipclip1.htm

Carol Anderson writes:

This is totally to cover the robosigner fraud for big banks.

Leroy Sterling writes:

No way Jose. Do not allow this bill to pass. If you do, the integrity of the Notarization process would be compromised and fraud would be rampant. If you eliminate the controls provided by face to face appearance, you are asking for trouble. If anything, you should be implementing more controls such as finger printing of the signer or biometrics technology to safeguard the Notarization process. Take my advice. I am a retired Certified Fraud Examiner. Human beings are a special breed., Given a need, an opportunity, and a rational, the individual is more likely, than not,to commit fraud. All Fraudsters have a need and a rational. They are just waiting for an opportunity. Do not, and I repeat, Do not give them the opportunity by eliminating the safeguards we presently have in place.

Roger Rill/Ohio Society of Notaries writes:

Notaries have been the bastions of trust and integrity for over two thousand years in deterring fraud.

This bill undermines the cardinal rule of notary practice, that of personal appearance; please reconsider the significant consequences of this legislation upon those notaries that YOU commission to protect the public!

J.Andrew writes:

State of Virginia Governor Bob McConnell has approved the controversial HB 2318 allowing audio and video conferencing as satisfactory evidence of personal appearance in an electronic notarization. AYIN International, Inc. has been a long time advocate and proponent of this enhancement in electronic notary transactions.
“Simply speaking, in the digital era, contract transaction times are occurring in nano seconds, yet the Notary Public is expected to maintain their level of service using manual analog processes like traveling and personally appearing. This must change and change now”, states J. Andrew Hatter Chairman of AYIN International, Inc.
Currently almost all States have adopted some version of the Uniform Electronic Transaction Act allowing for legalization of digital and electronic signatures. Federally the Electronic Signatures and Global and National Commerce Act provide similar legislative support.
“We’ve always questioned the wisdom in the acceptance of an electronic signature in an online transaction as legally binding”, states Hatter, “We will accept a digital or electronic signature without seeing who is signing it, but when it comes to witnessing the signing of a document for an electronic notarization, physical appearance is required.”
Both Virginia Senator John Edwards and Delegate Kathy Byron along with the Virginia legislative bodies are to be applauded for taking a proactive approach in not only allowing videoconferencing remote notarization which will undoubtedly strengthen e-commerce and overall business infrastructure but in fact they have taken steps to address an even more dire situation and that is mortgage fraud.
Because of “robo signing” many homeowners, states and the entire Real Estate industry is currently suffering the worst downturn in the housing market ever. In part, shadow inventory which is the result of bank owned properties being sold below market has become part of the problem; however this was born out of “illegal foreclosures” involving improper notarization and filing of affidavits.
It is hoped that HB2318 will give the State of Virginia a leg-up by insuring accountability for electronic notarization in Real Estate transactions. Innovations in electronic notarization are the order of the day specifically for Real Estate transactions as Virginia becomes the staging grounds for stabilizing the market.