remote online notarization for attorneys

Cosponsored by the Solo and Small Firm Section

Monday, October 19, 2020 Noon–1:15 p.m.

1.25 General CLE credits

Remote Online Notarization for Attorneys

iiRemote Online Notarization for Attorneys

REMOTE ONLINE NOTARIZATION FOR ATTORNEYS

SECTION PLANNERS

Kelly Doyle, Doyle Law, Oregon CityRob Hofmann, The Hofmann Legal Group, BendJorden Piraino, Oregon Legal Center, West Linn

Hertsel Shadian, Hertsel Shadian, Attorney at Law, LLC, PortlandArnold Wuhrman, The Wuhrman Law Firm, Lake Oswego

OREGON STATE BAR SOLO AND SMALL FIRM SECTION EXECUTIVE COMMITTEE

Jorden James Piraino, ChairJohn C. Koch, Chair-Elect

Hertsel Shadian, Past ChairArnold H. Wuhrman, Treasurer

Diane C. Cady, SecretaryStefyni Allen

Kelly Michael DoyleJulia Fraser

Andrew D. GinisC.J. Graves

Ekua A. HackmanDona Marie Hippert

Rob HofmannJames Mills

Scott D. SchnuckEllyn R. Stier

Caitlin M. Wong

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.

Copyright © 2020OREGON STATE BAR

16037 SW Upper Boones Ferry RoadP.O. Box 231935

Tigard, OR 97281-1935

iiiRemote Online Notarization for Attorneys

Table of Contents

Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Faculty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Presentation Slides: Remote Online Notarization . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Chart: Traditional Notarizations, Electronic Notarization, and Remote Online Notarization (RON)—What’s the Difference? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ivRemote Online Notarization for Attorneys

vRemote Online Notarization for Attorneys

SCHEDULE

Noon Remote Online Notarization for AttorneysThis presentation will discuss traditional and electronic (IPEN) notarization, including what is required of notaries and signers, as well as types of notary transactions. This provides context within which we can demystify Remote Online Notarization (RON) and discuss how it differs from other forms of notarization. Get tips on how attorneys can prepare themselves and their clients for a RON notarization and provide direct contacts for when problems arise.Ruth Miles, Director, Corporate Division, and Tribal Liaison, Oregon Secretary of State, SalemJamie Weddle-Jones, Chief Compliance, Training and Operations Officer, Oregon Secretary of State, Salem

1:15 Adjourn

FACULTY

Ruth Miles, Director, Corporate Division, and Tribal Liaison, Oregon Secretary of State, Salem. In her role as Corporation Division Director, Ms. Miles oversees the legacy systems of the Corporation Division, including business registry, UCC, notary commissioning and regulation, and the Small Business Advocacy ombudsman office. Previously, she served for over five years as the Secretary of State’s inaugural Small Business Advocate. She has also served as the inaugural Tribal Liaison for Secretary of State since 2018. In this capacity, she oversees agency relations with nine federally recognized tribes with a political headquarters within Oregon. She works continuously to improve communication between the Secretary of State and tribal sovereign governments. Ms. Miles completed her professional certification in tribal relations through Portland State University in 2019.

Jamie Weddle-Jones, Chief Compliance, Training and Operations Officer, Oregon Secretary of State, Salem.

viRemote Online Notarization for Attorneys

1Remote Online Notarization for Attorneys

OREGON SECRETARY OF STATECorporation Division

REMOTE ONLINE NOTARIZATION

SOS Corporation Division

PRESENTERSGot questions? Get answers.

Ruth Miles, Corporation Division [email protected]

Jaime Weddle, Training, Compliance & Operations Officer

[email protected]



PRESENTATION GOALS

• Discuss traditional and electronic notarization• What’s required of notaries and customers• Types of notary transactions

• Demystify Remote Online Notarization (RON) and discuss how it differs from traditional and electronic notarization

• Get tips on how to prepare for RON notarizations.• Learn who to contact when a problem arises.


NOTARY LAWS & REGULATIONSTraditional and IPEN/Electronic Notarization

• Traditional notarizations require the signer to appear in the physical presence of the notary (ORS 194.235).

• Electronic (IPEN) notarization is also legal in Oregon.• Electronic notarization still requires the signer to

appear in the physical presence of the notary, but any documents to be notarized are digital. Signing and stamping are digital, as well.

• Notaries must be 18 years of age or older and speak English.



NOTARY LAWS & REGULATIONSTraditional and IPEN/Electronic Notarization

• A notary commission is for 4 years; and commissions are not automatically renewed in Oregon.

• Notaries who are not attorneys or under the supervision of attorneys (like paralegals) may not prepare legal documents. Notaries may not give legal advice unless they are also an attorney.

• Notaries or their spouses may not be party to or have a beneficial interest in a transaction that is the subject of their notarization, regardless of the type of notarization


NOTARY LAWS & REGULATIONSRequirements for Notaries

• Notaries may refuse to notarize documents if a document or some other element seems fraudulent.

• Notaries may not notarize blank or incomplete documents. • Notaries must always use a stamp (physical or digital,

depending on the type of notarization); and, for traditional notarizations, may elect to use an embosser in addition to the stamp.

• Notary fees must be disclosed before the notarization takes place. Fees are set in statute, except reasonable travel fees.



NOTARY LAWS & REGULATIONSRequirements for Notaries

• Notaries must complete a training course, pass the Secretary of State’s examination, and take an oath of office in order to obtain a commission.

• Notaries who commit intentional misconduct are subject to administrative, civil or criminal penalties

• Notaries may not use the term “Notario Publico.”


TYPES OF TRANSACTIONSIt’s not just about documents Acknowledgment in an Individual Capacity is a

declaration by an individual before a notary that the individual has signed a record for the purpose stated in the record. The signer must personally appear, acknowledge that they willingly and knowingly signed the document, and the notary must identify the person as the one who did indeed sign. The signature may be made before, but not after, the notarization. Acknowledgment in a Representative Capacity is like

the individual acknowledgment but refers to a situation where an individual signs on behalf of an organization, like a corporation or trust.



TYPES OF TRANSACTIONSIt’s not just about documents Verification upon Oath or Affirmation is a written

declaration made by an individual on oath or affirmation that a statement in a record is true. The notary must require that the signer personally appear, verbally swear to the oath or affirm to the truth, and sign before the notary. Witnessing or Attesting a Signature is when the document is

signed in the presence of the notary. The notary determines that the individual appearing before the notary, and signing the document has the identity claimed.


TYPES OF TRANSACTIONSIt’s not just about documents Certifying to a Copy of a Document requires the notary to

determine that the copy is “a full, true and accurate transcription or reproduction of the record or item.” in this case the notary makes the copy, which may not be of a public record (such as a birth or death certificate).



REMOTE ONLINE NOTARIZATION Pilot Program


REMOTE ONLINE NOTARIZATION (RON)Process > Legislation > Future

• Oregon's RON pilot program was created by the Legislature as part of HB 4212, an omnibus bill passed during the 1st Special Session in June 2020.

• Prior to this, the Oregon Law Commission reviewed the Revised Uniform Act on Notarial Acts (RULONA) and crafted legislation for permanent adoption of RON, which was ready for consideration in 2020. The bill didn't find a sponsor for that session.• The legislation for permanent adoption of RON will be

introduced in the 2021 session. If the legislation passes, then Oregon would have no break in availability of RON notarizations.



REMOTE ONLINE NOTARIZATION (RON)Notary Requirements

• Only currently commissioned notaries may be certified to include RON notarizations in their practice. First, they must:• Watch the training video, which is provided for free on

YouTube (and will soon be part of our digital notary training application);

• Choose and enroll with a vendor that meets the technology requirements in OAR 160-100-0800 and OAR 160-100-0850;


REMOTE ONLINE NOTARIZATION (RON)Notary Requirements

• Complete the Remote Online Notarization Notice Form and consider opting into the public database;• Email to [email protected] with a

copy of the digital stamp and signature as generated by the platform;

• WAIT to receive an acknowledgement.

Once the notary has received an acknowledgement from Secretary of State, they may perform

remote online notarizations.



REMOTE ONLINE NOTARIZATION (RON)Required Elements for RON Notarizations

• Notaries are responsible for using a platform that meets the requirements of statute (HB 4212 Enrolled) and rule (OAR 160-100-0800 and 160-100-0850)• Qualifying platforms must include:

• Credential analysis using knowledge-based authentication (KBA). This is a multi-factor ID authentication process that is designed to prevent fraud. It includes ID capture and allows the notary to compare signatures and picture with the signer as they appear in video conferencing.

• Electronic/digital journal• Privacy and data security for both notary and signer


REMOTE ONLINE NOTARIZATION (RON)RON is not…

Notaries may not perform a remote online notarization:• Using Facetime, Zoom, GoToMeeting, Teams or other

popularly available video conferencing applications;• If they cannot verify the identity of the signer;• If the signer is unaware of the purpose for the notarization;• If the notary believes that the signer has been coerced into

asking for the notarization;• If the audio/video quality is such that both notary and

signer cannot be clearly seen and understood;




Notaries may not perform a remote online notarization:• If the notary allows documents to be signed out of their

sight;• If the RON platform does not contain all the elements

required in OAR 160-100-800 and 160-100-850• DocuSign is approved for IPEN, but not RON – but this

could change in the future



Signers should not participate in a remote online notarization:• That does not contain all the elements required of a RON

platform;• If they cannot see or understand the notary;• If they are asked or allowed to sign documents out of sight

of the notary.



TIPS FOR LAWYERSPrepare and Communicate

• Familiarize yourself with the principles of RON by watching our video online at https://youtu.be/-gRolDaQ32M, keeping in mind that each RON platform is slightly different. Note that most platforms also have their own familiarization videos.

• Be aware that notaries from other states may use a RON platform to perform a notarization for you or your client. If their commission is in good standing with their state, this is now legal in Oregon.• Prepare your client for the possibility that a notary from

another state may perform the notarization.



• Note that some states have emergency orders in place that make it legal for their commissioned notaries to perform Remote Ink-Signed Notarizations (popularly called RINs).• Oregon notaries may not perform RINs.




• If you are using a notary from another state, do your research ahead of time:• Is the platform listed on the Oregon Secretary of

State’s RON website as an approved vendor?• Will other parties to the transaction accept a RON?• Will you need an apostille/authentication for the

notarized document? If so, consider a traditional notarization.



• If you are using an Oregon notary:• Is the notary approved for RON?• Is their platform listed on the Secretary of State's

website?• Will you need an apostille/authentication? If so,

consider a traditional notarization



TIPS FOR LAWYERSRON vs. RIN

ORS 194.260 provides that notarizations performed in another state have the same effect under the law of this state as if performed by a notarial officer of this state.• Consider:

• If you use a notary from another state to perform a RON notarization for an Oregon resident, then any challenges or complaints regarding the notarization will have to be referred to the state that commissioned the notary.

• Not all states have enforcement powers over notaries that they commission.

• Regulatory powers vary among those states that have mechanisms for enforcement.


TIPS FOR LAWYERSPreparation is Key

• High-value/high stakes notarizations can cause some stress for both notary and client.• If others are involved (title company, bank), work with them

to prepare your client for what to expect from the notarization:• How long will it take?• Will they need to sign more than one document?• What is the reason for each of the documents that needs

signing and notarization?• Let your client know that fees for RON notarizations are

higher than for traditional notarizations ($25 per notarization versus $10 per notarization).



TIPS FOR LAWYERSPreparation is Key

• Be aware that not all banks accept RON notarizations.• If your client's document will need an

authentication/apostille, then you may want to consider a traditional notarization.

• There are not very many RON notaries based in Oregon, so the chances are high that a RON notarization will involve a notary from another state.

• Not every platform is set up to take all comers, regardless of the type of notarization. Research platforms ahead of time.

• Contact [email protected] with questions or concerns.


NOTARIES AND RONThe number of commissioned notaries is up .2% from this time last year

39186

29

59

Traditional

iPEN/Electronic

RON

0 5000 10000 15000 20000 25000 30000 35000 40000 45000

Notary Publics in Oregon as of 8/31/2020

Notary Publics in Oregon



COMPARISON OF NOTARIZATION TYPESThere are small, but significant, differences between each type of notarization. Be sure you understand what to expect before it happens


COMPARISON OF NOTARIZATION TYPESThere are small, but significant, differences between each type of notarization. Be sure you understand what to expect before it happens



CHALLENGES & OPPORTUNITIES• Notaries were having

difficulty completing the required form; so we adjusted the form and are working on updating our training materials;

• Notaries may have mocked up their own stamp and signature page instead of enrolling with a platform; so we are checking with platforms to be sure notaries are actually enrolled;


CHALLENGES & OPPORTUNITIES• DocuSign advocated the use of

Zoom; so we removed them from the list of approved vendors.

• Few Oregon-commissioned notaries want to do RONs; but we won’t push for more – only experienced notaries should do RONs.



CONTACT USIf you have a problem with a notarization,

regardless of the method or the type of transaction, get in touch. We’re here to help.

http://sos.Oregon.gov/business

[email protected]


WHAT DID YOU LEARN?

• About laws and regulations around notarization

• How Remote Online Notarization (RON) differs from traditional and electronic notarization

• How to prepare for RON-notarized transactions

• Who to contact when problems arise



Q&A


PRESENTERSThanks for your time today

Ruth Miles, Corporation Division [email protected]

Jaime Weddle, Training, Compliance & Operations Officer

[email protected]


Traditional Notarizations, Electronic Notarization and Remote Online Notarization (RON)

What’s the difference? Traditional Notarizations

Accepted in Oregon

Electronic Notarization (IPEN)

Accepted in Oregon

Remote Online Notarizations (RON)

Accepted in Oregon

Requirements Must be a commissioned notary.

Meet signer face to face.

Requirements Must be a commissioned notary, submit notice to the Secretary of State and choose a vendor.

Meet signer face to face.

Requirements Must be a commissioned notary, submit notice to

the Secretary of State and choose a RON platform.

Meet signer via audio-visual technology.

Identification Identify the signer meeting the requirements

under ORS 194.240.

Identification Identify the signer meeting the requirements

under ORS 194.240.

Identification Signer is identified by Knowledge Based

Authentication (KBA) and using identification that meets the requirements of ORS 194.240.

Process for Notarial Act Review the document.

Fill out journal entry and get it signed.

Watch signer sign the document.

Fill out notarial certificate (or attach certificate).

Physically sign and place stamp on certificate.

Document is returned to signer.

Process for Notarial Act Document is downloaded and submitted to

notary via platform.

Journal entry is created traditionally or electronically.

Watch signer electronically sign document.

Fill out notarial certificate (or attach certificate via the platform).

Notary attaches notary signature and stamp via the platform.

Process for Notarial Act Document is uploaded and digitally submitted to

notary using platform technology.

Journal entry is created via platform and digitally signed using platform technology.

Document is signed with technology via the platform.

Notary uses platform technology to digitally attach their signature and stamp.

Document is digitally returned to signer using platform technology.

Journal Retention Must be retained for 10 years.



Fees Collect notarial fee - $10.00 per act.

Fees Collect notarial fee - $10.00 per act.

Fees Collect notarial fee via platform - $25.00 per act.

remote online notarization for attorneys

Documents