REMOTE ONLINE NOTARIZATION ACT JUNE 24, 2020

The Legislative Auditor’s Summary of the Remote Online Notarization Act R.S. 35:621 et seq.

Overview:

This document is a summary of the general principles and guidelines concerning Louisiana’s Remote Online Notarization Act, which is presented in a “frequently asked questions” (FAQ) format. While this law was adopted by Act 254 of the 2020 Regular Session, the effective date of various provisions are contingent upon action taken by the US Congress on the SECURE Notarization Act (H.R. 6364 or S.3533 of the 116th Congress). Please read the materials carefully. To facilitate use of this document, numerous links will direct your attention to areas within the document and to related documents posted on the Louisiana Legislative Auditor’s website and on external websites. For example, in the index, you may go directly to any area of the FAQ by clicking the question you wish to view. Within the FAQ, several links will direct you to other areas of the FAQ and to relevant external documents. If you click on the individual question number, a link will return to the index to allow you to select another question to view. This Summary does not seek to give legal advice. Should you have any questions regarding the Remote Online Notarization Act, please consult your legal counsel.

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Index

Q.1. What is a notarial act? Q.2. What is the Louisiana Remote Online Notarization Act? Q.3. What is the effective date of the Act?

Q.4. What is the SECURE Notarization Act?

Q.5. What instruments may be executed by remote online notarization (RON)?

Q.6. What instruments are excluded from being executed by RON?

Q.7. What are the Secretary of State’s responsibilities for RON?

Q.8. Which notaries are authorized to perform RONs?

Q.9. Does the party executing the RON act or witnesses have to be in the presence of the notary?

Q.10. Where is a RON act deemed executed?

Q.11. What are the procedures for performing a RON?

Q.12. What are the security requirements for RONs?

Q.13. What are the duties of the notary for maintaining records?

Q.14. May the procedures for performing RONs be altered by agreement?

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Remote Online Notarization Act

Q.1. What is a notarial act? R.S. 35:3

A.1. Louisiana notaries public are authorized to take oaths and acknowledgements. La. R.S. 35:3. In the exercise of that function the notary attests to the identity, and to the authenticity of the signature, of the person swearing the oath or making the acknowledgement. This is also known as a “notarized signature.”

A notarized act is not the same as an authentic act. In some instances the law requires that a person's signature to certain writings be verified or authenticated. An authentic act is a writing executed before a notary and two witnesses. La. Civ. C. art. 1833.

Q.2. What is the Louisiana Remote Online Notarization Act? R.S. 35:621, et seq.

A.2. The Louisiana Remote Online Notarization Act is a law that provides for the performance of remote online notarization (RON), which is a process in which an instrument is executed remotely through the use of communication technology. The Act also provides for qualifications, procedures, duties and rulemaking relative to the performance of RONs. The law was enacted with Act 254 of the 2020 Regular Session.

Communication technology means an electronic device or process that allows substantially simultaneous communication by sight and sound. R.S. 35:622 (A)(1).

Q.3. What is the effective date of the Act?

A.3. The Act shall become effective upon the later of:

• Enactment of the SECURE Notarization Act (H.R. 6364 or S. 3533 of the 116th Congress) OR

• August 1, 2020.

If the SECURE Notarization Act is not enacted prior to February 1, 2022, the Act becomes effective on February 1, 2022.

Q.4. What is the SECURE Notarization Act?

A.4. The Securing and Enabling Commerce Using Remote and Electronic (SECURE) Notarization Act of 2020 (H.R. 6364 or S. 3533 of the 116th Congress) permits nationwide use of RON with minimum standards, such as multifactor identity authentication and recordkeeping via audio-visual recording of the notarization. The SECURE Notarization Act also provides for the interstate recognition of RON.

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Q.5. What instruments may be executed by remote online notarization (RON)? R.S. 35:623(A)

A.5. As long as the requirements of R.S. 35:625-627 are met, any instrument that is not specifically excluded in the law may be executed by RON.

Q.6. What instruments are excluded from being executed by RON? R.S. 35:623(B)&(C)

A.6. The following instruments shall not be executed by RON: • Testaments or codicils thereto; • Trust instruments or acknowledgments thereof; • Donations inter vivos; • Matrimonial agreements or acknowledgments thereof; • Acts modifying, waiving, or extinguishing an obligation of final spousal support or acknowledgment thereof.

Additionally, RON may not be used to execute an authentic act as defined in La. Civ. C. art. 1833; however, the law provides that an act that fails as an authentic act as a result of being executed by RON may be still be valid as an act under private signature (La. Civ. C. art. 1837) or an acknowledged act (La. Civ. C. art. 1836).

Q.7. What are the Secretary of State’s responsibilities for RON? R.S. 35:624

A.7. The Secretary of State shall: • Adopt rules to develop and maintain standards for RON; • Form a stakeholder committee including representatives from the Louisiana Land Title Association, the Louisiana Association of Independent Land Title Agents, the Louisiana Notary Association, the Louisiana Bankers Association, the Louisiana Clerks of Court Association, the Louisiana State Bar Association, the Louisiana Public Tag Association and the Louisiana State Law Institute, to assist in developing standards for RON; • The Rules shall be adopted prior to February 1, 2022, and may thereafter be modified, amended or supplemented with or without input from the stakeholder committee.

Q.8. Which notaries are authorized to perform RONs? R.S. 35:625 & R.S. 35:625.1

A.8. The provisions in this section of the Act are contingent on the enactment of the SECURE Notarization Act. If the SECURE Notarization Act is enacted, the following provisions become effective upon the later of the enactment of the SECURE Notarization Act or August 1, 2020.

Any regularly commissioned notary public who holds a valid notarial commission in the State of Louisiana is authorized to perform RONs. This authorization expires on February 1, 2022.

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Effective February 1, 2022, only a regularly commissioned notary public who holds a valid commission in the State of Louisiana and who has been authorized by the Secretary of State may perform RONs.

• In order to obtain authorization to perform RONs, a notary public must submit an application to the Secretary of State, in a format prescribed by the Secretary of State, complete any course of instruction required, and satisfy any other requirements imposed by rules adopted by the Secretary of State. • Once authority to perform RONs is conferred, it shall continue as long as the notary public is validly commissioned and the Secretary of State has not revoked the authority.

Q.9. Does the party executing the RON act or witnesses have to be in the presence of the notary? R.S. 35:626(A)

A.9. No. The notary public must be physically located in any parish of this State in which the notary has the power to exercise the function of a notary public to perform RONs; however, the party executing the act does not have to be in the physical presence of the notary. The party may be located in or outside this State. A witness to a RON shall be in the physical presence of the party.

Q.10. Where is a RON act deemed executed? R.S. 35:626(B)

A.10. A RON act is deemed to be executed in any parish of this State where any party is physically located at the time of the RON. If no party was physically located in this State at the time of the RON, the RON act is deemed to be executed in the parish where the notary public is physically located at the time of the RON.

Q.11. What are the procedures for performing a RON? R.S.35:627

A.11. At the time of a RON, the notary public shall verify the identity of any party or witness appearing remotely, both through use of communication technology and by one of the following means:

(1) The notary public's personal knowledge of the individual; or (2) A process that includes all of the following: (a) Remote presentation by the individual of a government-issued identification credential, such as a passport or driver's license that contains the signature and a photograph of the individual. (b) Credential analysis; • Credential analysis means a process through which the authenticity of an individual’s government-issued credential is evaluated by another person through review of public and proprietary data sources. R.S. 35:622(A)(2) (c) Identity proofing.

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• Identify proofing means a process through which the identity of an individual is affirmed by another person by either of the following means: o Dynamic knowledge-based authentication, such as a review of the personal information from public or proprietary data sources; or o Analysis of biometric data, such as facial recognition, voiceprint analysis or fingerprint analysis. R.S. 35:622(A)(3)

The notary public shall also do all of the following:

(1) Include in the remote online notarial act a statement that it is a remote online notarial act. (2) Attach to or cause to be logically associated with the remote online notarial act the notary public's electronic signature, together with all other information required to be included in the act by other applicable law. (3) Digitally sign the remote online notarial act in a manner that renders any subsequent change or modification of the remote online notarial act to be evident.

Q.12. What are the security requirements for RONs? R.S. 35:628

A.12. The notary public shall take reasonable steps to ensure both of the following:

(1) The communication technology used in the performance of a RON is secure from unauthorized interception. (2) The electronic record before the notary public is the same electronic record in which the party made a statement or on which the party executed or adopted an electronic signature. Q.13. What are the duties of the notary for maintaining records? R.S. 35:629

A.13. The notary public shall do all of the following: (1) Maintain electronic copies capable of being printed in a tangible medium of all RON acts for at least ten years after the date of the remote online notarization. (2) Maintain an audio and video recording of each RON acts for at least ten years after the date of the RON. (3) Take reasonable steps to secure the records required to be maintained from corruption, loss, destruction, and unauthorized interception or alteration.

The notary public may designate a custodian to maintain the electronic records provided that the notary public has unrestricted access to the electronic records and the custodian meets any standards established by the Secretary of State for the maintenance of electronic records.

Q.14. May the procedures for performing RONs be altered by agreement? R.S. 35:630 A.14. No. The law specifically provides that its provisions may not be altered, even by agreement of the parties.

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