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Minnesota Legislative Update

MINNESOTA SENATE FILE 893   The Minnesota legislature recently adopted the Revised Uniform Law on Notarial Acts (“Act”).  The Act applies to a notarial act performed on or after January 1, 2019.   “Acknowledgment” means a declaration by an individual before a notarial officer stating that the individual has signed a record for the purpose […]

MINNESOTA SENATE FILE 893

 

The Minnesota legislature recently adopted the Revised Uniform Law on Notarial Acts (“Act”).  The Act applies to a notarial act performed on or after January 1, 2019.

 

“Acknowledgment” means a declaration by an individual before a notarial officer stating that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record.

 

“Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

 

“Electronic Signature” means an electronic symbol, sound, or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record.

 

“In a representative capacity” means acting as:

  • An authorized officer, agent, partner, trustee or other representative for a person other than an individual;
  • A public officer, personal representative, guardian, or other representative, in the capacity stated in a record;
  • An agent of or attorney-in-fact for a principal; or
  • An authorized representative of another in any other capacity.

 

“Notarial Act” means an act, whether performed with respect to a tangible or electronic record, that a notarial officer may perform under Minnesota law.  The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy, and noting a protest of a negotiable instrument.

 

“Notarial Officer” means a notary public or other individual authorized to perform a notarial act.

 

“Notary Public” means an individual commissioned to perform a notarial act.

 

“Official Stamp” means a physical image affixed to a tangible record or an electronic image attached to or logically associated with an electronic record.

 

“Person” means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

 

“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

 

“Sign” means, with present intent to authenticate or adopt a record:

  • To execute or adopt a tangible symbol; or
  • To attach to or logically associate with the record an electronic symbol, sound, or process.

 

“Signature” means a tangible symbol or an electronic signature that evidences the signing of a record.

 

“Stamping Device” means:

  • A physical device capable of affixing to a tangible record an official stamp; or
  • An electronic device or process capable of attaching to or logically associating with an electronic record an official stamp.

 

“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

 

“Verification on Oath or Affirmation” means a declaration, made by an individual on oath or affirmation before a notarial officer, that a statement in a record is true.

 

The Act applies to a notarial act performed on or after January 1, 2019.

 

A notarial officer may perform a notarial act authorized by the Act and other law.  A notarial officer may not perform a notarial act with respect to a record to which the officer or the officer’s spouse is a party, or in which either of them has a direct beneficial interest.  A notarial act performed in violation of the above is voidable.

 

A notarial officer who takes an acknowledgement of a record must determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the acknowledgment has the identity claimed and that the signature on the record is the signature of the individual.

 

A notarial officer who takes a verification of a statement on oath or affirmation must determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the verification has the identity claimed and that the signature on the statement verified is the signature of the individual.

 

A notarial officer who witnesses or attests to a signature must determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and signing the record has the identity claimed.

 

A notarial officer who certifies or attests a copy of a record or an item that was copied must determine that the copy is a full, true, and accurate transcription or reproduction of the record or the item.

 

A notarial officer who makes or notes a protest of a negotiable instrument must meet the requirements set forth by law.

 

If a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature must appear personally before the notarial officer.

 

A notarial officer has personal knowledge of the identity of an individual appearing before the officer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.

 

A notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual:

  • By means of:
    • A passport, driver’s license, or government-issued nondriver identification card that is currently valid; or
    • Another form of government identification issued to an individual that is currently valid, contains the individual’s signature or a photograph of the individual and is satisfactory to the officer; or
  • By a verification on oath or affirmation of a credible witness personally appearing before the officer and known to the officer or whom the officer can identify on the basis of a passport, driver’s license, or government-issued nondriver identification card that is current or expired not more than three years before performance of the notarial act.

 

A notarial officer may require an individual to provide additional information or identification credentials necessary to assure the officer of the identity of the individual.

 

A notarial officer may refuse to perform a notarial act, unless refusal is prohibited by law, if the officer is not satisfied that:

  • The individual executing the record is competent or has the capacity to execute the record; or
  • The individual’s signature is knowingly and voluntarily made.

 

If an individual is physically unable to sign a record, the individual’s signature may be obtained in the manner provided by Minnesota law.

 

A notarial act may be performed in Minnesota by:

  • A Minnesota notary public;
  • A Minnesota judge, clerk, or deputy clerk of court; or
  • Any other individual authorized to perform a notarial act by Minnesota law.

 

The signature and title of an individual performing a notarial act in Minnesota are prima facie evidence that the signature is genuine and that the individual holds the designated title.  The signature and title of a notarial officer conclusively establish the authority of the officer to perform the notarial act.

 

A notarial act performed in another state has the same effect under the law of Minnesota as if performed by a notarial officer of Minnesota, if the act performed in that state is performed by:

  • A notary public of that state;
  • A judge, clerk, or deputy clerk of a court of that state; or
  • Any other individual authorized by the law of that state to perform the notarial act.

 

The signature and title of an individual performing a notarial act in another state are prima facie evidence that the signature is genuine and that the individual holds the designated title.  The signature and title of a notarial officer conclusively establish the authority of the officer to perform the notarial act.

 

A notarial act performed under the authority and in the jurisdiction of a federally recognized tribe has the same effect as if performed by a notarial officer of the state of Minnesota if the act performed in the jurisdiction of the tribe is performed by:

  • A notary public of the tribe;
  • A judge, clerk, or deputy clerk of a court of the tribe; or
  • Any other individual authorized by the law of the tribe to perform the notarial act.

 

The signature and title of an individual performing a notarial act under the authority of and in the jurisdiction of a federally recognized tribe are prima facie evidence that the signature is genuine and that the individual holds the designated title.

 

A notarial act performed under federal law has the same effect under the law of the state of Minnesota as if performed by a notarial officer of Minnesota if the act performed under federal law is performed by:

  • A judge, clerk, or deputy clerk of a court;
  • An individual in military service or performing duties under the authority of military service who is authorized to perform notarial acts under federal law;
  • An individual designated a notarizing officer by the United States Department of State for performing notarial acts overseas; or
  • Any other individual authorized by federal law to perform the notarial act.

 

The signature and title of an individual acting under federal authority and performing a notarial act are prima facie evidence that the signature is genuine and that the individual holds the designated title.  The signature and title of a notary public described above conclusively establishes the authority of the officer to perform the notarial act.

 

“Foreign State” means a government other than the United States, a state or a federally recognized Indian tribe.  The Act also sets forth the requirements for a notary acknowledgment to be acceptable in Minnesota if the notarial act is performed under the authority of a foreign state or multinational international governmental organization.

 

“Appear,” “personally appear,” or “in the presence of” means:

  • Being in the same physical location as another person and close enough to see, hear, communicate with, and exchange tangible identification credentials with that individual; or
  • Interacting with another individual by means of communication technology.

 

“Communication technology” means an electronic device or process that allows a notary public physical located in Minnesota and a remotely located individual to communicate with each other simultaneously by sight and sound and that, as necessary, makes reasonable accommodation for individuals with vision, hearing, or speech impairments.

 

“Credential analysis” means an automated software- or hardware-based process or service through which a third person affirms the validity of a government-issued identification credential through review of public or proprietary data sources.

 

“Electronic journal” means a secure electronic record of notarial acts that contains the items required by Minnesota law and performed by the remote online notary public.

 

“Electronic record” means information that is created, generated, sent, communicated, received, or stored by electronic means.

 

“Electronic seal” means information within a notarized electronic record that confirms the remote online notary public’s name, jurisdiction, identifying number, and commission expiration date and generally corresponds to information in notary seals and on paper documents.

 

“Identity proofing” means a process or service through which a third person affirms the identity of an individual through review of personal information from public or proprietary data sources, and that may include dynamic knowledge-based authentication or biometric verification.

 

“Outside the United States” means outside the geographic boundaries of a state or commonwealth of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States.

 

“Principal” means an individual:

  • Whose electronic signature is notarized in a remote online notarization; or
  • Making an oath or affirmation or an acknowledgment other than in the capacity of a witness for the remote online notarization.

 

“Remote online notarial certificate” is the form of an acknowledgment, jurat, verification on oath or affirmation or verification of witness or attestation that is completed by a remote online notary public and:

  • Contains the online notary public’s electronic signature, electronic seal, title, commission number, and commission expiration date;
  • Contains other required information concerning the date and place of the remote online notarization;
  • Otherwise conforms to the requirements for an acknowledgment, jurat, verification on oath or affirmation, or verification of witness or attestation under the laws of Minnesota; and
  • Indicates that the person making the acknowledgment, oath, or affirmation appeared remotely online.

 

“Remote online notarization” or “remote online notarial act” means a notarial act performed by means of communication technology as specified in these provisions.

 

“Remote online notary public” means a notary public who has registered with the Minnesota Secretary of State to perform remote online notarizations.

 

“Remote presentation” means transmission to the remote online notary public through communication technology of an image of a government-issued identification credential that is of sufficient quality to enable the remote online notary public to:

  • Identify the individual seeking the remote online notary public’s services; and
  • Perform credential analysis.

 

“Remotely located individual” means an individual who is not in the physical presence of the notary.

 

A remote online notary public:

  • Is a notary public for purposes of Minnesota law and is subject to and must be appointed and commissioned under the notary public laws; and
  • May perform remote online notarizations authorized under these provisions.

 

A notary public commissioned in Minnesota may apply for remote online notarization registration as provided by these provisions.  Before a notary performs a remote online notarization, the notary must register with the secretary of state as provided and must certify that the notary intends to use communication technology that meets the requirements.

 

Unless terminated, the term of registration to perform remote online notarial acts begins on the registration starting date set by the secretary of state and continues as long as the notary public’s current commission to perform notarial acts remains valid.  Upon the applicant’s fulfillment of the requirements for remote online notarization registration, the secretary of state will record the registration under the applicant’s notary public commission number.

 

The secretary of state may reject a registration application and the commissioner of commerce may revoke a registration if the applicant fails to comply with the above requirements.

 

A remote online notary public may perform a remote online notarial act only while the remote online notary public is physically located in Minnesota.  A remote online notary public physically located in Minnesota may perform a remote online notarial act using communication technology for a remotely located individual who is physically located:

  • In Minnesota;
  • Outside Minnesota, but within the United States; or
  • Outside the United States if:
    • The remote online notary public has no actual knowledge of the remote online notarial act being prohibited in the jurisdiction in which the person is physically located; and
    • The person placing an electronic signature on the electronic document confirms to the remote online notary public that the requested remote online notarial act and the electronic document:
      • Are part of or pertain to a matter that is to be filed with or is currently before a court, governmental entity, or other entity in the United States;
      • Relate to property located in the United States; or
      • Relate to a transaction substantially connected to the United States;

 

The validity of a remote online notarization performed by an online notary public of Minnesota is governed by the laws of Minnesota.

 

A remote online notary public or the remote online notary public’s employer may charge a fee not to exceed $25 for the performance of a remote online notarial act if the act occurs before January 1, 2023.

 

The Act includes provisions requiring a remote online notary public to keep an electronic journal of notarial acts performed, specifying what must be included and how long it must be maintained.

 

A remote online notarial act must comply with the following minimum standards:

  • Identity proofing must include knowledge-based authentication with these or greater security characteristics:
    • The signer must be presented with five or more questions with a minimum of five possible answer choices per question;
    • Each question must be drawn from a third-party provider of public and proprietary data sources and be identifiable to the signer’s social security number or other identification information, or the signer’s identity and historical events records;
    • Responses to all questions must be made within a two-minute time constraint;
    • The signer must answer a minimum of 80% of the questions correctly;
    • The signer may be offered an additional attempt in the event of a failed first attempt;
    • During the second attempt, the signer may not be presented with more than three questions from the prior attempt.
  • Credential analysis must confirm that the credential is valid and matches the signer’s claimed identity using one or more automated software or hardware processes that scan the credential, including its format features, data, bar codes, or other security elements.

 

A remote online notary public may perform a remote online notarization regardless of whether the principal is physically located in Minnesota at the time of the remote online notarization.  In performing a remote online notarization, a remote online notary public must verify the identity of a person creating an electronic signature at the time that the signature is taken by using communication technology as required.  Identity may be verified by:

  • The remote online notary public’s personal knowledge of the person creating the electronic signature; or
  • All of the following:
    • Remote presentation by the person creating the electronic signature of a currently valid government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the person;
    • Credential analysis of the credential described above; and
    • Identity proofing of the person.

 

The remote online notary public must take reasonable steps to provide that the communication technology used in a remote online notarization is secure from unauthorized interception.  The electronic notarial certificate for a remote online notarization must include a notation that the notarization is a remote online notarization.

 

A remote online notarial act meeting these requirements satisfies the requirement of any law of Minnesota relating to a notarial act that requires a principal to appear or personally appear before a notary or that the notarial act be performed in the presence of a notary.

 

If a law requires as a condition for recording that a document be an original, be on paper or another tangible medium, be in writing, or be signed, the requirement is satisfied by a paper copy of an electronic document bearing an electronic signature that a notary public has certified to be a true and correct copy of a document that was originally in electronic form and bearing an electronic signature meeting the requirements specified.

 

A requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied by a paper copy of an electronic document bearing an electronic signature of the person authorized to perform that act, and all other information required to be included, that a notary public has certified to be a true and correct copy of a document that was originally in electronic form and bearing an electronic signature of the person.  A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature.

 

The office of the county recorder or the office of registrar of titles must record a paper copy of a document that was originally in electronic form and that is otherwise entitled to be recorded under the laws of Minnesota, provided that the paper copy has been certified to be a true and correct copy of the electronic original by a notary public duly commissioned under the laws of Minnesota as evidenced by a certificate attached to or made a part of the document.  The certificate must:

  • Be signed and dated by the notary public and be signed in the manner required;
  • Identify the jurisdiction in which the certification is performed;
  • Contain the title of the notary public;
  • Indicate the date of expiration, if any, of the notary public’s commission; and
  • Include an official seal or stamp of the notary public affixed to the certificate.

 

The following form of certificate is sufficient for this purpose if completed with the information required:

 

State of  ______________________

 

County of _____________________

 

I certify that the foregoing and annexed document [entitled ______________(document title, if applicable, or description)] [dated _______ (document date, if applicable)] and containing ____ pages is a true and correct copy of an electronic document bearing one or more electronic signatures this _______ [certification date].

 

_____________________________

Signature of notary public

 

Seal/Stamp

 

Notary public

My commission expires:_______________

 

My notary commission number is:______________

 

A notary public duly commissioned under the laws of Minnesota has the authority to make the certification provided.  A notary public making the certification must:

  • Confirm that the electronic document contains an electronic signature that is capable of independent verification and renders any subsequent changes or modifications to the electronic document evident;
  • Personally print or supervise the printing of the electronic document onto paper; and
  • Not make any changes or modifications to the electronic document other than the certification described.

 

If a certificate is completed with the required information and is attached to or made a part of a paper document, the certificate will be prima facie evidence that the requirements have been satisfied with respect to the document.

 

A document purporting to convey or encumber real property or any interest in the property that has been recorded by the office of the county recorder or the office of registrar of titles for the jurisdiction in which the real property is located, although the document may not have been certified, will give the same notice to third persons and be effective from the time of recording as if the document had been certified.

 

This does not apply to a plat, map, or survey of real property if under another law of Minnesota or, if under a rule, regulation, or ordinance applicable to the office of the county recorder or the office of registrar of titles:

  • There are requirements of format or medium for the execution, creation, or recording of the plat, map, or survey beyond the requirements applicable to a deed to real property; or
  • The plat, map, or survey must be recorded in a different location than a deed to real property.

 

A notarial act must be evidenced by a certificate.  The certificate must:

  • Be executed contemporaneously with the performance of the notarial act;
  • Be signed and dated by the notarial officer and, if the notarial officer is a notary public, be signed in the same manner as on file with the commissioning officer or agency;
  • Identify the jurisdiction in which the notarial act is performed;
  • Contain the title of office of the notarial officer; and
  • If the officer is a notary public, indicate the date of expiration, if any, of the officer’s commission.

 

If a notarial act regarding a tangible record is performed by a notary public, an official stamp must be affixed to the certificate.  If a notarial act is performed regarding a tangible record by a notarial officer other than a notary public and the certificate contains the information required, an official stamp may be affixed to or embossed on the certificate.  If the notarial act regarding an electronic record is performed by a notarial officer and the certificate contains the information required, an official stamp may be attached to or logically associated with the certificate.

 

A certificate of a notarial act is sufficient if it meets the above requirements and:

  • Is in a short from provided by statute;
  • Is in a form otherwise permitted by the law of Minnesota;
  • Is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed; or
  • Sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the Act or law of Minnesota.

 

A notarial officer may not affix the officer’s signature to, or logically associate it with, a certificate until the notarial act has been performed.

 

If a notarial act is performed regarding a tangible record, a certificate must be part of, or securely attached to, the record.  If a notarial act is performed regarding an electronic record, the certificate must be affixed to, or logically associated with, the electronic record.  If the commissioning officer or agency has established standards for attaching, affixing, or logically associating the certificate, the process must conform to the standards.

 

For a remote notarization, use of the following form, as appropriate, is sufficient to satisfy the requirements.

 

For a remote notarization when the signer is located outside the United States:

 

This record was (acknowledged) (signed and sworn to or affirmed) (signed or attested to) by use of communication technology on _______________(Date) by _____________________ who declared that (he)(she)(they) (is)(are) __________________ (Name of Individual) located in (jurisdiction and location name) and that this record is to be filed with or relates to a matter before a court, governmental entity, public official, or other entity located in the territorial jurisdiction of the United States, or involves property located in the territorial jurisdiction of, or a transaction substantially connected with, the United States.

 

Or

 

For a remote notarization when the signer is located in Minnesota or the United States:

 

This record was (acknowledged)(signed and sworn to or affirmed)(signed or attested to) by use of communication technology on ________________ (Date) by ________________ (name of individual) who declared that (he)(she)(they) (is)(are) located in (jurisdiction and location name).

 

A notary public may select one or more tamper-evident technologies to perform notarial acts with respect to electronic records.  A person may not require a notary public to perform a notarial act with respect to an electronic record with a technology that the notary public has not selected.  “Tamper-evident” means that any changes to an electronic document must display evidence of the change.

 

Among other things, the Act also sets forth the process for termination of remote online notary public’s registration, and grounds to deny, refuse to renew, revoke, suspend or condition commission of notary public, database of notaries public, prohibited acts.

 

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Diane Jenkins

Director, National Mortgage Compliance Practice Group, AsurityDocs Of Counsel, Sandler Law Group

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