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Law

WV Senate Bill 469

Notary Law Update: WV Senate Bill 469

State: West Virginia

Summary:
Senate Bill 469 enacts provisions authorizing West Virginia Notaries to perform remote online and ink signed notarizations.

Signed:  March 30, 2021

Effective:  June 17, 2021

Chapter: 236

Affects:
Amends Sections 39-4-6 of and adds Sections 39-4-6a and 39-4-38 to the West Virginia Code.

Changes:

Remote Online Notarization Authorization

  1. Defines “communication technology,” “foreign state,” “identity proofing,” “outside the United States,” and “remotely located individual.”
  2. Provides that for purposes of WVC 39-4-6, an individual may appear personally before a notarial officer if the appearance appears by communication technology.
  3. Provides that a remotely located individual may use communication technology to appear before a Notary.
  4. Provides that before a Notary performs the Notary’s initial remote notarial act, the Notary must notify the Secretary of State that the Notary will be performing notarial acts with respect to remotely located individuals and identify the technologies the notary public intends to use.

Standards for Remote Online Notarization

  1. Provides that a Notary located in West Virginia may perform a notarial act using communication technology for a remotely located individual if the Notary identifies the remotely located individual through personal knowledge, a credible witness, or two forms of identity proofing.
  2. Provides that a Notary may perform a notarial act using communication technology for a remotely located individual if the Notary is reasonably able to confirm that a record before the Notary is the same record in which the remotely located individual made a statement or on which the individual executed a signature.
  3. Provides that a Notary may perform a notarial act using communication technology for a remotely located individual if the Notary, or a person acting on behalf of the Notary, creates an audio-visual recording of the performance of the notarial act.
  4. Provides that for a remotely located individual located outside the United States, the Notary must be commissioned as an Out-of-State Commissioner pursuant to WVC § 39-4A-1 et seq.; and the record must be intended to be filed with or relate to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of West Virginia; or involve property located in or a transaction substantially connected with West Virginia.
  5. Requires the certificate of notarial act required by WVC § 39-4-15 and the short-form certificate provided in WVC § 39-4-16 must indicate that the notarial act was performed using communication technology.
  6. Provides that the short-form certificate provided in WVC § 39-4-16 is sufficient for a notarial act involving a remotely located individual if it: (a) complies with rules adopted by the Secretary of State; or (b) is in the form provided in WVC § 39-4-16 and contains a statement substantially as follows: “This notarial act involved the use of communication technology”.
  7. Provides that a Notary, a guardian, conservator, or agent of a Notary, or a personal representative of a deceased Notary shall retain the audio-visual recording or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording.
  8. Provides that unless a different period is required by rule, the recording must be retained for a period of at least 5 years after the recording is made.
  9. Provides that if the Secretary of State has established standards for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards.

Remote Ink Signed Notarization

  1. Allows a Notary to perform a remote ink signed notarization using communication technology if the Notary identifies the signer by (a) personal knowledge, (b) a government-issued, unexpired identification document or record which includes the individual’s photograph, name, and signature (common acceptable forms of identification documents include, but are not limited to, a driver’s license, government-issued 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 has personal knowledge of the individual, who is personally known to the Notary or identified by one means described above, and who is in the physical presence of the Notary or the individual or is present using communication technology in real-time at the time of notarization.
  2. Requires for an ink signed notarization that the Notary, either directly or through an agent, to (a) at the time of the performance of the notarization, create an audio and visual recording of the signing and notarization; and (b) retain the recording as a notarial record for 5 years unless otherwise provided by law.
  3. Requires that when an individual who is physically located outside West Virginia seeks a remote ink signed notarization, the Notary must be commissioned as an Out-of-State Commissioner pursuant to WVC § 39-4A-1 et seq.
  4. Requires that when an individual who is physically located outside West Virginia seeks a remote ink signed notarization, the record being notarized must: (a) be intended for filing or presentation in a matter before a court, governmental entity, public official, or other entity subject to the jurisdiction of West Virginia; (b) involve property located in the territorial jurisdiction of West Virginia or a transaction substantially connected to West Virginia; or (c) otherwise not be prohibited, by West Virginia law to be notarized outside West Virginia.
  5. Requires that once signed by the individual, the individual must mail or otherwise cause to be delivered the signed original copy of the documents to the Notary for certification and execution with the Notary’s commission signature and official stamp or seal.
  6. Clarifies that the date and time of the remote ink signed notarization is the date and time when the Notary witnessed the signature being performed via communication technology.
  7. Clarifies that nothing in the provisions regarding ink signed notarization affects the authority of a Notary to refuse to perform a notarial act or requires a Notary to perform a notarization remotely: (a) with respect to an electronic record; (b) for an individual not in the physical presence of the Notary; or (c) using a technology that the Notary has not selected.

Other Provisions

  1. Clarifies that by allowing its communication technology or identity proofing to facilitate a notarial act for a remotely located individual or by providing storage of the audio-visual recording for a remote ink signed notarization, the Secretary of State shall be the provider of the communication technology, identity proofing, or storage as the provider’s agent for service of process in any civil action in this state related to the notarial act.
  2. Validates acknowledgments and notarizations performed by means of remote communication technology, pursuant to the Governor’s Executive Order 11-20 effective March 25, 2020, and cured of any defect from failure to comply with WVC § 39-4-6 if the acknowledgments and notarizations were performed in accordance with the emergency rules promulgated by the West Virginia Secretary of State, which are found at the WV Code of State Rules § 153-45 et. seq.
  3. Provides that by allowing its communication technology or identity proofing to facilitate a notarial act for a remotely located individual or by providing storage of the audio-visual recording, the Secretary of State shall be the provider of the communication technology, identity proofing, or storage as the provider’s agent for service of process in any civil action in this state related to the notarial act.

Rules

  1. Requires the Secretary of State to propose rules for legislative approval in accordance with the provisions of WVC § 29A-3-1 et seq. establishing specific requirements for the performance of a notarial act on behalf of an individual appearing before a Notary by means of communication technology.
  2. Requires the Secretary of State to propose legislative rules for the performance of notarial acts involving remotely located individuals.
  3. Authorizes the Secretary of State to adopt rules regarding the performance of a remote ink signed notarial act.
Analysis:

West Virginia becomes the 31st state to enact remote online notarization provisions. Since it had previously enacted the Revised Uniform Law on Notarial Acts, (RULONA), it made sense to enact the RULONA provisions for notarial acts involving remotely located individuals. Senate Bill 469 tracks closely to those procedures, with one notable difference: if the remotely located individual is located outside the United States, the Notary must also be commissioned as an out-of-state commissioner of deeds. A commissioner is a state-appointed official who notarizes documents in other states that are intended for filing in West Virginia.

While being the 31st state to enact remote online notarization provisions, West Virginia becomes the first to enact permanent remote ink signed notarization (RIN) provisions. During the COVID-19 pandemic, temporary RIN authorizations have been common as states wrestle with safely providing access to notarial services to the people who need these services. The NNA has recognized the importance of RIN during the pandemic both to the public and Notaries, but views it only as a temporary, not a permanent solution. For a discussion about this, see the NNA’s Special Report, Remote Ink Signed Notarization: Temporary Accommodation or Permanent Solution?

Read the bill text.

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