MI House Bill 5811

Legislation

State: Michigan
Signed: June 26, 2018

Effective: September 26, 2018
Chapter: Public Act No. 330

Summary

House Bill 5811 legalizes remote electronic notarization in Michigan and provides rules for performing these notarial acts and for the approval of platforms used to perform them.

Affects

Adds as yet uncodified Sections 26b and 54 to and amends Sections 15, 25 and 27 (MCL 55.275, 55.285, and 55.287) of the Michigan Notary Public Act (MCL 55.261-55.315).

Changes

Definitions

Defines "credential analysis" to mean a process or service by which a third party affirms the validity of an identity document described through a review of public and proprietary data sources conducted remotely.
Defines "Identity proofing" to mean a process or service by which a third party provides a Notary with a reasonable means to verify the identity of an individual through a review of personal information from public or proprietary data sources conducted remotely.
Defines "remote electronic notarization platform" to mean any combination of technology that enables a Notary to perform a notarial act remotely; that allows the Notary to communicate by sight and sound with the individual for whom he or she is performing the notarial act, and witnesses, if applicable, by means of audio and visual communication; and that includes features to conduct credential analysis and identity proofing.

Presence and Identification Requirements

Clarifies that a notarial act performed using a remote electronic notarization platform that otherwise satisfies the requirements of the law is presumed to satisfy any requirement under the Michigan Notary Public Act that a notarial act be performed in the presence of a Notary.
Provides that a Notary has satisfactory evidence of identity with regard to a notarial act identified and verified through an identity proofing process or service that is part of an approved remote electronic notarization platform if the person presents an identity document that is verified through a credential analysis process or service that is part of an approved remote electronic notarization platform.

Records of Remote Online Notarial Acts

Prohibits a Notary from recording by audio or visual means a notarial act performed using a remote electronic notarization platform without disclosing to the person that requested the notarial act that an audio or visual recording is being made and how the recording will be preserved, and the person consents or has previously consented to the recording.
Allows a Notary to refuse to conduct a notarial act using a remote electronic notarization platform if the person that requested the notarial act objects to an audio or visual recording of the notarial act.
Requires a Notary to maintain a journal that to record remote electronic notarial acts.
Requires a Notary to maintain only 1 journal for recording of remote electronic notarial acts and to keep the journal either as a tangible, permanent bound register or in a tamper-evident, permanent electronic format.
Requires a Notary to retain the journal for at least 10 years after the performance of the last remote electronic notarial act recorded in it.
Provides that if a Notary is not reappointed, or his or her commission is revoked, the former Notary must inform the Secretary of State where the journal is kept or, if directed by the Secretary, must forward the journal to the Secretary or a repository designated by the Secretary.
Requires a Notary to make an entry in a journal for a remote electronic notarial act contemporaneously with performance of the act.
Requires an entry in the journal for a remote electronic notarial act to include, at a minimum, all of the following: (a) the date, time, and nature of the notarial act; (b) a description of the record, if any; (c) the full name and address of each individual for whom the act is performed; (d) if the identity of the individual for whom the act is performed is based on personal knowledge, a statement to that effect or, If the identity of the individual for whom the act is performed is based on satisfactory evidence, a brief description of the method of identification and the identification credential presented, if any, including the date of issuance and expiration for the credential; and (e) the fee charged, if any.
Requires the journal entry for a remote electronic notarial act also to reference, but not itself contain, any audio or visual recording of a act performed using a remote electronic notarization platform.
Requires a Notary to retain an audio or visual recording of a remote electronic notarial act for at least 10 years after the performance of the act.
Authorizes a Notary to designate a custodian to (a) maintain the journal required for remote electronic notarizations on his or her behalf or (b) retain an audio or visual recording of a remote electronic notarial act on his or her behalf.
Provides that if a Notary transfers an audio or visual recording of a remote electronic notarial act to a custodian to hold on his or her behalf, the journal entry must identify the custodian with sufficient information to locate and contact the custodian.

Remote Electronic Notarization Platforms

Requires the Secretary of State and the Department of Technology, Management, and Budget, beginning March 30, 2019, to review and approve remote electronic notarization platforms for the performance of notarial acts.
Provides the standards and criteria for the Secretary of State and the Department of Technology, Management, and Budget to approve remote electronic notarization platforms.
Provides that if a remote electronic notarization platform is approved or certified by a government-sponsored enterprise, as that term is defined in 2 USC 622(8), the Secretary of State and the Department of Technology, Management, and Budget shall approve the platform if verifiable proof of that approval or certification is provided to the Secretary and Department, unless use of the remote electronic notarization platform is affirmatively disallowed by the Secretary.
Prohibits a Notary from using a remote electronic notarization platform that is not approved by the Secretary of State and the Department of Technology, Management, and Budget.
Requires the Secretary and the Department to review their standards for approving remote electronic notarization platforms, and whether the number of approved remote electronic notarization platforms are sufficient, at least every 4 years.
Authorizes a Notary to perform a notarial act using a remote electronic notarization platform if either of the following is met: (a) the Notary makes all applicable determinations under Section 25 (MCL 55.285) according to personal knowledge or satisfactory evidence, the performance of the notarial act complies with Section 27 (MCL 55.287), and the Notary does not violate Section 31 (MCL 55.291) in the performance of the notarial act; and (b) the Notary, through use of the remote electronic notarization platform, personal knowledge, or satisfactory evidence, is able to identify the record before the Notary as the same record presented by the individual for notarization.

Analysis

Michigan becomes the ninth state overall and the fifth in 2018 to enact provisions legalizing remote electronic notarization. HB 5811 contains identification provisions that are similar to the other states that have enacted remote or online notarization thus far. It also requires a recording of the remote electronic notarization to be archived and either a paper or electronic journal to be kept for each remote electronic notarization. What makes HB 5811 unique among the remote electronic notarization enactments thus far is the requirement that the Secretary of State and Department of Technology, Management and Budget review and approve remote electronic notarization platforms. Interestingly, HB 5811 says that if a government-sponsored enterprise such as Freddie Mac or Fannie Mae has certified or approved a particular platform, Michigan will approve it as well provided the Secretary and Department haven’t previously disapproved it.

The effective date of the bill is 90 days following enactment. Thus, September 26, 2018, is the formal effective date, but the new law also states that on March 30, 2019, the Secretary and Department may begin reviewing and approving platforms. Since a Notary must use an approved platform, it is clear that remote electronic notarizations won’t be performed any earlier than March 30, 2019.

Read House Bill 5811.