WI Administrative Rules (2023)

Rule/Regulation

State: Wisconsin

Effective: May 01, 2023

Summary
New Wisconsin administrative rules implement 2019 Wisconsin Act 125, providing clarifications regarding notarial acts for remotely located individuals and Notary commissions and investigations.

Affects
Adds Sections 25.01, 25.02, 25.03, 25.04, 25.05, 25.06 to Chapter DFI-CCS 25 of the Wisconsin Administrative Code.

Changes

Status Changes

Requires a Notary to provide the Department of Financial Institutions (DFI) with written notice, in a form and manner acceptable to the DFI, of any change of name, seal or stamp, and address, including primary email address, within 10 days of the change.

Notary Investigations

Authorizes the DFI to investigate whether a person has violated, is violating, or is about to violate any provision of WS ch. 140, or the rules.
Provides that the DFI may administer oaths and affirmations, issue subpoenas, take evidence, require the filing of statements (including responses to allegations), require testimony in oral or written form, and require the production of any records that the DFI considers relevant or material to the investigation.
Authorizes the DFI to deny, refuse to renew, revoke, suspend, or impose a condition on the commission of a Notary Public for any act or omission that demonstrates the individual lacks the competence, reliability, or integrity to act as a Notary, including any of the following: (a) failing to comply with any provision of WS ch. 140, or the rules; (b) committing an act of fraud, deceit, or of any other misconduct substantially relating to the character or public trust required of a Notary Public; (c) being convicted in any jurisdiction of committing any felony, any misdemeanor involving fraud, forgery, or similar violations of the public trust, or the unauthorized practice of law; (d) using false or misleading advertising or otherwise engaging in any method, act, or practice that is unfair or deceptive, including any untrue or misleading statement or omission of a material fact relating to a duty or responsibility of a Notary; (e) making an untrue or misleading statement or omission of a material fact in any application or filing required by WS ch. 140; and (f) failing to promptly and fully comply with any investigation or request for information by the DFI.
Provides that notices and other communications from the DFI may be provided to a Notary by email or other electronic means.

Notarial Acts for Remotely Located Individuals

Provides that a Notary may perform a notarial act for a remotely located individual if all the following apply: (a) the Notary performs the notarial act by utilizing a communication technology provider that has authorized the Notary Public to utilize its technology and has been approved pursuant to s. DFI-CCS 25.05, or by utilizing an alternative process that has been approved pursuant to s. DFI-CCS 25.06; (b) the Notary has reviewed and understands WS 140.145, and all guidance published on the DFI’s website regarding notarial acts for remotely located individuals; and (c) the Notary is competent with the technologies and processes to be utilized in performing notarial acts for remotely located individuals.

Technology Providers

Requires a provider of communication technology used to perform notarial acts for remotely located individuals to obtain approval as provided in the proposed rules before allowing its platform to be used by a Notary of Wisconsin to perform a notarial act for a remotely located individual.
Authorizes a provider of communication technology to request approval of the Remote Notary Council by submitting documentation or other evidence to the DFI, in a form and manner acceptable to the DFI, that explains all the following: (a) how the provider will ensure that notarial acts for a remotely located individual performed on the provider’s platform by a Notary comply with the requirements of WS140.145 and 140.20, and the proposed rules; (b) the proposed method of performing a notarial act involving a remotely located individual using the provider’s communication technology; (c) the proposed method by which a provider’s identity proofing will operate to ensure compliance with WS 140.07; (d) whether the provider’s technology and identity proofing processes meet the most current standards of the Mortgage Industry Standards Maintenance Organization; (e) the means used to ensure that notarial acts for a remotely located individual are accurate, authentic, resistant to tampering, and tamper-evident; (f) the means used to ensure that all parties using the communication technology are viewing the same record, and that all signatures, changes, and attachments to the record are made in real time; (g) the means used to ensure that the communication technology is secure from hacking or interception; (h) the means used to ensure that a notarial act for a remotely located individual is recorded and adequately preserved for a period of at least seven years after the recording is made; (i) the means used to ensure that a Notary is properly instructed and competent to perform a notarial act for a remotely located individual using the provider’s communication technology; (j) all jurisdictions in which a provider’s communication technology has been approved or disapproved for the performance of a notarial act for a remotely located individual; (k) a provider’s experience utilizing the means, processes, and procedures described in this subsection; (l) any warning letters or complaints received, or disciplinary actions taken against a provider in any other jurisdiction; (m) any pending or adjudicated lawsuits against a provider relating in any way to the performance of notarial acts using the provider’s communication technology in any jurisdiction; (n) whether the provider has and will maintain insurance coverage or other security for potential errors or omissions relating to the communication technology or provider’s processes; and (o) any other information that the DFI or Remote Notary Council requests and believes is necessary or helpful in evaluating a provider’s request for approval.
Provides that once the DFI is satisfied that a provider’s application includes the information required by the proposed rules, the DFI shall schedule the application for consideration at a forthcoming meeting of the Remote Notary Council.
Requires a representative of the applicant with knowledge of its processes and authority to make binding representations on its behalf to be available to participate in the meeting and respond to questions from Remote Notary Council members, and further provides that unless otherwise specified by the Council, the representative may participate by phone or other remote means.
Provides that upon consideration of the merits of the applicant and application, the Remote Notary Council may approve the application, impose additional conditions or limitations upon approval, deny the application, table the application for further deliberation at a subsequent meeting, or require the applicant to supplement the application with additional explanations, information, or evidence of its ability to ensure compliance with state law.
Provides that upon approval of a provider’s application, the DFI will add the provider to a public list of approved providers of communication technology for notarial acts for remotely located individuals.
Clarifies that all representations, promises, and assurances of future performance by a provider or its representative to the DFI or the Remote Notary Council are binding on the provider.
Provides that if facts or circumstances change such that any material statement, representation, or explanation made by a provider approved under the application process is no longer accurate or complete, the provider must promptly inform the DFI of the change, explain the reasons for it, and provide an updated version of any application document affected by the change.
Requires an approved provider to promptly inform the DFI, in a form and manner acceptable to the DFI, regarding Notaries who have become newly authorized to use the provider’s communication technology to perform notarial acts for remotely located individuals.
Authorizes the DFI or the Remote Notary Council to restrict, limit, suspend, or terminate any approval granted to a provider if it concludes that any of the following apply: (a) the provider has violated WS ch. 140, this chapter, or any other relevant state or federal statute or administrative rule; (b) the provider has violated any condition of any approval granted; (c) the provider has made a false or misleading statement or omission of material fact to the DFI or the Remote Notary Council; (d) the provider has been subject to administrative discipline or legal action in another jurisdiction; (e) any fact or condition exists that, if the provider were required to re-apply, would warrant the denial or restriction of approval; and (f) any other fact or condition exists that undermines the DFI’s or the Remote Notary Council’s confidence in the ability of the provider to meet its duties and ensure compliance with WS ch. 140.
Provides that when restricting, limiting, suspending, or terminating any approval granted to a provider, the DFI or the Remote Notary Council may take, or require the provider to take, any further action it deems necessary and appropriate to mitigate risks of harm to Notaries or others.
Provides that in addition to the method of utilizing a communication technology provider that is approved under DFI-CCS 25.04, the DFI may establish alternative processes or methods of performing notarial acts for remotely located individuals, provided such processes methods meet the requirements of WS ch. 140.

Analysis

Concluding a rulemaking process that began in 2020, the Wisconsin Department of Financial Institutions has published final rules to implement its enactment of the Revised Uniform Law on Notarial Acts, or Act 125 of 2020. The new rules largely pertain to notarial acts for remotely located individuals (remote notarization), and within that, the largest topic is the regulation of remote notarization technology providers. There also are rules related to the investigation of Notaries Public as well.

There was a proposed rule that was not adopted. It was a rule providing that the DFI would recognize notarial certificates completed by Notaries and containing an official seal or stamp that complied either with W.S. 140.02(3)(a) or 140.17. These two statutes relate to the official seal or stamp of a Notary and could be construed as irreconcilable. The former requires the official seal of the Notary to contain the name of the Notary, and the words, “Notary Public,” and “State of Wisconsin, and nothing else. The latter requires the official stamp to contain the Notary’s name, jurisdiction, commission expiration date, if applicable, and any other information required by the DFI.

It should be noted as well that an emergency rule which had set the maximum fee of $25 for a remote notarization has now been rescinded and there is no permanent rule to replace it. This means that a Notary who performs remote notarizations may charge the same maximum fee set in statute for any other notarial act ($5). The Department of Financial Institutions has told the NNA that since the law does not specify a set separate fee for use of a technology system, such fees are thus unregulated and a Notary may charge a technology fee as the Notary sees fit.

Read the adopted administrative rules.