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Rule

WV Emergency Rule 153-45-27 (2020-2021)

Notary Law Update: WV Emergency Rule 153-45-27 (2020-2021)

State: West Virginia

Summary:

West Virginia Secretary of State Warner has adopted an emergency rule to implement Governor Justice's executive order suspending the personal appearance requirement for notarial acts during states of emergency.

Signed:  April 01, 2020

Effective:  April 01, 2020

Chapter: N/A

Affects:

Adds Section 153-45-27 to the West Virginia Code of State Rules.

Changes:
  1. Provides that upon declaration of a State of Emergency and a lawful suspension of the requirements of W. Va. Code § 39-4-6 for notarizations to be made in person, unless otherwise expressly prohibited by law, a document may be notarized for an individual by a Notary who utilizes an electronic device, technology, process, or combination thereof.
  2. Requires the individual(s) and the Notary to not be in the same physical presence of each other and the individual(s) and the Notary to be able to communicate simultaneously by sight and sound through an electronic device, technology, process, or combination thereof at the time of the notarization.
  3. Requires the identification, record-keeping, and procedural requirements of Sections 27.3 through 27.7 of Rule 153-45 to be satisfied.
  4. Requires the Notary to reasonably identify the individual by one or more of the following: (a) personal knowledge of the individual; (b) identification of an individual based on at least one current document or record which includes the individual’s photograph, name, and signature. Common acceptable forms of identification include but are not limited to a state or federal ID such as a driver’s license, personal identification card, or passport; (c) at least two different types of processes or services by which a third person provides a means to verify the identity of the individual through a review of public or private data sources; or (d) the oath or affirmation by a credible witness who is in the physical presence of either the Notary or the individual; or is able to communicate with the Notary and the individual simultaneously by sight and sound through an electronic device or process at the time of the notarization if the credible witness has personal knowledge of the individual and has been reasonably identified by the Notary under (a) or (b) above.
  5. Requires the Notary, either directly or through an agent, to create an audio and visual recording of the signing and notarization.
  6. Requires the Notary or Notary’s agent to retain the audio and visual recording as a notarial record during the term of the notarial officer’s office, including all renewals, unless a West Virginia law requires a different period of record retention, and if any West Virginia laws govern the content, retention, security, use, effect, and disclosure of the recording and any information contained in it the recording shall be subject to those laws.
  7. Requires a remote notarial act for an individual who is physically located outside the geographic boundaries of the State of West Virginia to meet the following additional requirements: (a) the Notary must be commissioned as an Out-of-State Commissioner under W. Va. Code § 39-4A-1 et seq., (b) the Notary must have no actual knowledge that the act of making the statement or signing the record is prohibited by the laws of the jurisdiction in which the individual is physically located, and (c) the record must 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 West Virginia; or involve property located in the territorial jurisdiction of West Virginia or a transaction substantially connected to the State of West Virginia; or must be otherwise permitted by West Virginian law to be notarized outside the state of West Virginia.
  8. Requires the individual who signed record after having been identified by the Notary using one of the means specified in the rule to mail the signed copy of the documents to the Notary for certification and execution with the Notary’s signature and the official stamp or seal.
  9. Provides that the official date and time of the notarization is the date and time when the Notary witnessed the signature via the electronic device, technology, process, or combination thereof that provide(s) the audio and video presence.
  10. Provides that the validity and recognition of a notarization under Rule 153-45 shall not prevent an aggrieved person from seeking to invalidate a record or transaction that is the subject of a notarization, or from seeking other remedies based on state or federal law, for any reason not addressed in this rule including the following grounds: (a) that an individual did not, with present intent to authenticate or adopt a record, either execute or adopt on the record a tangible mark or symbol; or attach to or logically associate with the record an electronic signature; or (b) that an individual was incompetent, lacked authority or capacity to execute the record, or did not knowingly and voluntarily execute a record; or (c) that a record was signed on the basis of fraud, forgery, mistake, misrepresentation, impersonation, duress, undue influence, or other invalidating cause.
  11. Clarifies that nothing in Rule 153-45 shall affect or supersede a West Virginia law or rule governing, authorizing, or prohibiting the practice of law.
  12. Clarifies that the failure of a Notary to comply with any requirement under Section 153-45-27 shall not invalidate or impair the recognition of a notarization performed by the Notary under the procedures of Section 153-45-27 so long as substantial compliance is met, provided that substantial compliance is not met if any of the invalidating circumstances set forth in Section 153-45-27.8. have occurred.
  13. Clarifies that Section 153-45-27 shall not be construed to create a public or private cause of action or remedy.
  14. Clarifies that Section 153-45-27 shall not affect the validity of a notarization performed before the effective date of the rule and that the validity and recognition of a notarization performed pursuant to the terms of Section 153-45-27 and during the period in which it is effective, shall not be affected by the subsequent expiration, modification, amendment or revocation of Section 153-45-27 or rule, including after which time a state of emergency is declared no longer in effect.
  15. Provides that if any provision of Section 153-45-27 or the application of such provision to any person or circumstance is held to be invalid or unconstitutional, the remainder of Section 153-45-27 and the application of the provisions in it to other persons or circumstances shall not be affected thereby.
  16. Clarifies the Rule 153-45 does not require a Notary commissioned under West Virginia law to perform a notarization: (a) With respect to an electronic record; (b) For an individual not in the physical presence of the notarial officer; or (c) Using a technology that the notarial officer has not selected.
On December 4, 2020, the Secretary of State filed the following changes to the original emergency rules:

  1. Clarifies that the rules define the requirements for remote electronic notarization during a State of Emergency under certain circumstances and strikes the language in the previous version of the rules that states the rules apply when in-person appearance is impractical, illegal, or otherwise inadvisable due to a public health emergency or other natural disaster.
  2. Makes the defined terms "individual" and "Notary" global definitions throughout the entire rules.
  3. Clarifies that an identification card present for a remote notarization must be a government-issued, unexpired identification document or record which includes the individual’s photograph, name, and signature.
  4. Emphasizes that the communication technology used to perform a remote notarization must allow the parties to communicate in real time.
  5. Strikes from the requirements for the recording of the remote notarization the provision that if any state laws govern the content, retention, security, use, effect, and disclosure of the recording and any information contained in it, the recording shall be subject to those laws.
  6. Clarifies that once the requirement for the remote notarization are complied with, the individual must mail or otherwise deliver the signed copy of the documents to the Notary for certification and execution with the Notary’s signature and the official stamp or seal.
  7. Strikes from the rules the provision that the validity and recognition of a notarization under the rule shall not prevent an aggrieved person from seeking to invalidate a record or transaction that is the subject of a notarization, or from seeking other remedies based on state or federal law, for any reason not addressed in this rule including the following grounds: (a) that an individual did not, with present intent to authenticate or adopt a record, either execute or adopt on the record a tangible mark or symbol or attach to or logically associate with the record an electronic signature; or (b) that an individual was incompetent, lacked authority or capacity to execute the record, or did not knowingly and voluntarily execute a record; or (c) That a record was signed on the basis of fraud, forgery, mistake, misrepresentation, impersonation, duress, undue influence, or other invalidating cause.
  8. Strikes from the rules the provision that nothing in this rule shall affect or supersede a state law or rule governing, authorizing, or prohibiting the practice of law.
  9. Strikes from the rules the provision that the failure of a Notary to comply with any requirement of the remote notarization rules shall not invalidate or impair the recognition of a notarization performed by the notary under the procedures of the remote rules so long as substantial compliance is met.
  10. Strikes the provision that the remote notarization rules shall not affect the validity of a notarization performed before the effective date of the rules.
Analysis:

On March 25, 2020, West Virginia Governor Jim Justice issued Executive Order 11-20 temporarily waiving the personal appearance requirement for most notarial acts in West Virginia during the COVID-19 state of emergency. That is all the Order did; it did not provide any further rules for performing notarial acts when personal appearance was suspended. Those details are the subject of an emergency rule adopted by the West Virginia Secretary of State, effective on March 31, 2020. The rule applies specifically during a state of emergency only -- not only during the COVID-19 emergency but any future emergency when the Governor suspends personal appearance. The emergency rule deals with how a Notary is to identify a document signer who is at a distance. It requires the Notary to maintain an audio and visual recording of the notarization event. It does not require a Notary to perform these notarizations; the authorization is permissive only. The rule also contains several provisions related to the validity and recognition of notarial acts performed for remotely located individuals.

Read the emergency rule.

On December 4, 2020, the Secretary of State filed changes to the emergency rules that were requested by the Legislative Rule-Making Review Committee (LRMRC). See the amendments noted under "Changes", above.

Read the December 4, 2020, amended emergency rules.

On May 21, 2021, the Secretary of State filed the version of the emergency rules approved by the Legislature in Senate Bill 182. The rules will sunset on August 1, 2026.

Read the May 21, 2021, amended emergency rules.

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