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Law

MI House Bill 6297

Notary Law Update: MI House Bill 6297

State: Michigan

Summary:

House Bill 6297 responds to the Michigan Supreme Court’s ruling that Governor Whitmer’s several executive orders on remote notarization and Notary commission extensions after April 30, 2020 were invalid by authorizing Notaries to temporarily perform remote notarizations and extending Notary commissions that expired from March 1, 2020 through December 31, 2020 to the end of the year.

Signed:  November 05, 2020

Effective:  November 05, 2020

Chapter: Public Act 249

Affects:
All Michigan Notaries Public who seek to perform remote notarizations as well as Michigan Notaries whose commissions expired March 1, 2020, or are set to expire through December 31, 2020.

Changes:

Temporary Remote Notarization Provisions

  1. Provides that the temporary remote notarization rules apply to a notarial act described performed on or after April 30, 2020, and before January 1, 2021.
  2. Defines the term “in the presence of” as 2-way real-time audiovisual technology that meets the requirements of Section 26c of the Michigan Notary Public Act.
  3. Exempts electronic notarization platforms from the requirement of having to be approved prior to use if the notarial act is performed under the authority of Section 26c of the Michigan Notary Public Act.
  4. Authorizes Notaries to use a 2-way real-time audiovisual technology to perform notarial acts electronically if all the following requirements below are met.
  5. Requires the audiovisual technology used to allow direct interaction between the individual, any witnesses, and the Notary, so that each can communicate simultaneously by sight and sound through an electronic device or process at the time of the notarization.
  6. Requires the audiovisual technology to is capable of creating an audio and visual recording of the complete notarial act that is retained as a notarial record following the rules in Section 26b(7) to (9);
  7. Requires the individual and any required witnesses to be identified by the Notary through personal knowledge or satisfactory evidence, and the satisfactory evidence must be presented to the Notary during the video conference, and not before or after the transaction.
  8. Requires the individual to state that they are physically situated in Michigan or located outside the geographic boundaries of Michigan and the document involved in the notarization to be intended for filing with or relate to a matter before a court, governmental entity, public official, or other entity subject to the jurisdiction of Michigan or involve property located in the territorial jurisdiction of Michigan or a transaction substantially connected to Michigan.
  9. Provides that if the individual is physically located outside of the geographic boundaries of Michigan, the Notary must have no actual knowledge that the individual's act of making the statement or signing the document is prohibited by the laws of the jurisdiction in which the individual is physically located.
  10. Requires the individual, any required witnesses, and the Notary to be able to affix their signatures to the document in a manner that renders any subsequent change or modification of the remote online notarial act to be tamper-evident.
  11. Requires the individual or the individual's designee to fax, mail, or send electronically a legible copy of the entire signed document directly to the Notary on the same date it was signed regardless of the manner in which the document is signed.
  12. Provides that once the Notary has received a legible copy of the document with all necessary signatures, the Notary must notarize the record in accordance with Section 27 of the Michigan Notary Public Act and transmit the notarized document back to the individual.
  13. Provides that the official date and time of the notarization performed under the temporary remote notarization authorization is the date and time when the Notary witnesses the signature via audiovisual technology.
  14. Allows a document to be signed in counterparts beginning April 30 and before January 1, 2021, unless there is an express prohibition against it in Michigan law.

Other Provisions

  1. Extends Notary commissions that expired between March 1 and December 31, 2020, through December 31, 2020.
  2. Provides that if a document is notarized electronically under Section 26c, all of the following apply: (a) The document does not need to be notarized under any other provision of the Michigan Notary Public Act; (b) The rights or interests of a person who relies in good faith and without actual notice that the document was executed on or after April 30, 2020, and before January 1, 2021, but was not executed or notarized in accordance with this section are not impaired, challenged, or terminated on that basis alone; and (c) Compliance with Section 26c is presumed. A person challenging a document notarized under Section 26c may overcome the presumption by establishing, by clear and convincing evidence, that the Notary or the individual seeking the Notary's services intentionally failed to comply with a requirement described in this section.

Intent of the Legislature in Passing HB 6297

  1. Encourages governmental agencies and officials of Michigan to use or permit the use of electronic records and electronic signatures to transact business, process applications, and recognize the validity of legal instruments, and, when a notarized signature is required by Michigan law, to use a Notary who performs notarial acts electronically under this act.
  2. Provides that beginning April 30, 2020, any requirement under Michigan law that an in-person witness attests to or acknowledges an instrument, document, or deed is satisfied by the use of 2-way real-time audiovisual technology in accordance with Section 26c.
  3. Clarifies that beginning April 30, 2020, any requirement that an individual appears personally before or be in the presence of either a Notary at the time of a notarization or a witness at the time of an attestation or acknowledgment is satisfied by an appearance and communication simultaneously by 2-way real-time audiovisual technology in accordance with Section 26c at the time of the notarization, attestation, or acknowledgment.
Analysis:

House Bill 6297 is one of several bills that the Michigan Legislature is considering because of the Michigan Supreme Court invalidating Governor Whitmer’s executive orders issued after April 30, 2020. The Supreme Court ruling affected a series of monthly orders that extended the expiration date of Notary commissions which expired during the pandemic and authorized Notaries to temporarily perform remote notarizations. This bill was necessary to validate notarial acts that were performed under the Governor’s previous orders and by Notaries who acted in good faith believing their commissions had been extended by a valid executive order. The bill is effective immediately but expires on December 31, 2020.

Read the bill text.

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