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Law

LA House Bill 274

Notary Law Update: LA House Bill 274

State: Louisiana

Summary:

Louisiana becomes the latest state to enact provisions authorizing remote online notarization.

Signed:  June 11, 2020

Effective:  August 01, 2020

Chapter: Act No. 254

Affects:

Amends Article 3444 of the Civil Code and Section 35:6 of the Revised Statutes, and enacts Section 9:2760 and Sections 35:621-630 of the Revised Statutes.

Changes:

Remote Online Notarization Provisions

  1. Defines “communication technology”, “credential analysis”, “identity proofing”, “remote online notarial act” and “remote online notarization”.
  2. Provides that a remote online notarial act that meets the requirements of R.S. 35:625 through 627 satisfies any requirement that a party appear before a Notary at the time of the execution of the instrument.
  3. Requires a remote online notarial act to comply with other applicable laws governing the manner of the execution of that act.
  4. Prohibits a remote online notarization from being used to execute an authentic act as defined in Civil Code Article 1833, but provides that an act that fails to be authentic as a result of being executed by remote online notarization may still be valid as an act under private signature or an acknowledged act.
  5. Prohibits the following instruments from being executed by remote online notarizations: (a) testaments or codicils; (b) trust instruments or acknowledgments; (c) donations inter vivos; (d) matrimonial agreements or acknowledgments; and (e) acts modifying, waiving, or extinguishing an obligation of final spousal support or acknowledgments.
  6. Requires the Secretary of State to adopt rules to develop and maintain standards to implement proposed law by February 1, 2022.
  7. Requires the Secretary of State to form a stakeholder committee comprising of a number of associations and organizations, as specified, to assist with the development of standards.
  8. Authorizes a Notary physically located in any parish of Louisiana in which the Notary has the power to exercise the functions of a Notary to perform a remote online notarial act.
  9. Requires a Notary to be physically located in Louisiana when performing a remote online notarization.
  10. Allows the parties for whom a remote online notarial act is performed to be located inside or outside of Louisiana and requires the witnesses to a remote online notarial act to be in the physical presence of the Notary.
  11. Provides that a remote online notarial act is deemed to be executed in any parish of Louisiana where any party for whom the remote online notarial act is performed is physically located at the time of the remote online notarization.
  12. Provides that if no party for whom a remote online notarial act is performed was physically located in Louisiana at the time of the remote online notarization, the remote online notarial act is deemed to be executed in the parish where the Notary is physically located at the time of the remote online notarization.
  13. Provides that a party for whom a remote online notarial act is performed must be identified by the Notary through (a) the Notary’s personal knowledge of the individual or (b) remote presentation by the individual of a government-issued identification credential, such as a passport or driver’s license, that contains the signature and a photograph of the individual, credential analysis and identity proofing.
  14. Requires a Notary performing remote online notarization to include in a remote online notarial act a statement that it is a remote online notarial act.
  15. Requires a Notary performing a remote online notarization to attach to cause to be logically associated with the remote online notarial act the Notary’s electronic signature, together with all other information required to be included in the act by other applicable law.
  16. Requires a Notary to electronically and digitally sign a remote online notarial act so that it is tamper-evident.
  17. Requires a Notary to take reasonable steps to ensure (a) the communication technology used in the performance of a remote online notarization is secure from unauthorized interception and (b) the electronic record before the Notary is the same electronic record in which the party made a statement or on which the party executed or adopted an electronic signature.
  18. Requires a Notary to maintain an audio and video recording of each remote online notarial acts for at least 10 years after the date of the remote online notarization and to take reasonable steps to secure the records and recordings from corruption, loss, destruction, and unauthorized interception or alteration.
  19. Requires a Notary to maintain electronic copies and audio-video recordings of each remote online notarization for at least 10 years after the date of the remote online notarization.
  20. Allows a Notary to designate a custodian to maintain the electronic records.

Other Provisions

  1. Provides that a recorder must not refuse to record a tangible copy of a electronic record on the ground that it does not bear the original signature of a party if a Notary or other officer before whom it was executed certifies that the tangible copy is an accurate copy of the electronic record.
  2. Provides that any acts passed by remote notarization before any Notary Public and two witnesses in the District of Columbia, or any state of the United States other than Louisiana, shall not have the same force and effect as if passed before a Louisiana Notary.

Temporary or Conditional Provisions

  1. Provides that the remote online notarization provisions take effect upon the later of enactment of the SECURE Notarization Act (H.R. 6364 or S. 3533 of the 116th Congress) or August 1, 2020, but if the SECURE Act is not enacted prior to February 1, 2022, the provisions take effect on February 1, 2022.
  2. Provides that a provision of the Act which states that any regularly commissioned Notary who holds a valid Louisiana notarial commission is authorized to perform remote online notarizations, is contingent upon the enactment of the SECURE Notarization Act, will take effect upon the latter of the enactment of the SECURE Act or August 1, 2020, and ceases to be effective on February 1, 2022.

Future Provisions Effective on February 1, 2022

  1. Provides that only a regularly commissioned Notary who holds a valid Louisiana notarial commission may be authorized by the Secretary of State to perform remote online notarization.
  2. Provides that in order to obtain authorization to perform remote online notarization, a Notary must submit an application to the Secretary of State in a format prescribed by the Secretary, complete any course of instruction required by the Secretary, and satisfy any other requirements imposed by rules adopted by the Secretary.
  3. Clarifies that the authority to perform remote online notarization shall continue as long as the Notary is validly commissioned, and the Secretary of State has not revoked the Notary’s authority to perform remote online notarization.
Analysis:

Louisiana becomes the third state in 2020 to enact permanent remote online notarization (RON) statutes. The RON statutes themselves are consistent with the other enactments across the United States. The provisions on how to identify the principal for whom a RON is performed allow a Notary to use the Notary’s personal knowledge of the individual or a three-part process that involves remote presentation of an ID credential, credential analysis of that credential and identity proofing. The Secretary of State and a stakeholder group will adopt standards to implement these and the other RON provisions.

Unfortunately, late in the legislative process, an amendment to HB 274 was inserted into the bill which refuses to recognize RONs performed by Notaries of other U.S. jurisdictions as being on par with an authentic act passed before a Louisiana Notary. This development is quite concerning given how paper notarizations are accorded the same standing as a paper authentic act. It is also unnecessary given that most states’ RON enactments are as if not more stringent than Louisiana’s. The effect of this unwelcome provision will be to limit the Louisiana public to obtaining a RON from a Louisiana Notary only.

HB 274 has varied effective dates. Some sections of HB 274 take effect on August 1, 2020, but the permanent RON provisions themselves take effect contingent upon whether the U.S. Congress passes and the president signs the SECURE Notarization Act (HR 6364 or S 3533 of the 116th Congress). If the SECURE Act is not enacted prior to February 1, 2022, the permanent RON provisions take effect then. While the effective date for HB 274 listed above is August 1, 2020, the reader should keep the conditional and temporary effective dates of the bill in mind.

Read the bill text.

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