Bulletin: MI2020001

Dear Associates:

Please be aware that Michigan Governor Gretchen Whitmer issued Executive Order No. 2020-41 on April 9, 2020, articulating guidelines for the encouragement of the use of electronic signature and remote online notarizations (RON) during the COVID -19 pandemic (attached). This Order is effective immediately and continues through May 6, 2020, at 11:59pm.

The Order identifies that strict compliance with the provisions of the Uniform Electronic Transactions Act (UETA), the Uniform Real Property Electronic Recording Act (URPERA) and the Michigan Law on Notarial Acts (MCL 55.261 et seq) are temporarily suspended to enable the recording of electronic documents and the use of remote online notarizations.

The Order, in Paragraph 5, provides that any notary currently holding a valid notarial commission may, by use of two-way real-time audiovisual technology, perform a RON without a separate appointment from the Secretary of State so long as the provisions of (a) through (h) are met. We direct you to review all the provisions of Paragraph 5 of the Order, but I will point out a couple of the provisions for your consideration:

• Paragraph (c) provides that if the individual requiring notarial services, if not personally known to the notary, must present satisfactory evidence of identity (e.g. a valid state-issued photo identification) to the notary during the video conference to satisfy the requirements of MCL 55.261 et seq. This would appear to suspend the statutory requirement of credential analysis under MCL 55.285 (6) (d).
• Paragraph (b) requires that the “two-way real-time audiovisual technology must be capable of creating an audio and visual recording of the complete notarial act and such recording must be made and retained as a notarial record in accordance with the MCL 55.286b (7) through (9)” which requires that a notary must retain an audio or visual recording of a notarial act for at least 10 years after the performance of the notarial act.

I would also direct your attention to the provisions of Paragraph 3 and Paragraph 9: that while the notary does not need to be in the physical presence of an individual seeking the notary’s services, the notary must still “witness” the signing of the document by two-way real-time audiovisual technology at the time of the notarization, attestation or acknowledgment.

Finally, please be aware that Paragraph 10 contemplates that the Register of Deeds must not refuse to record a tangible copy of an electronic record on the grounds that it does not bear the original signature of the person, witness or notary if the notary before whom it was executed certifies that the tangible copy is an accurate copy of the electronic record. This is the “paper out” solution which allows you to record a paper copy of the electronic record if the county doesn’t currently accept electronic filing.

Stewart Title is committed to our partners and providing solutions to allow Agents and Stewart Issuing Offices to continue closing and insuring transactions. Given the uncertainty of how COVID -19 may impact real estate transactions and in the interest of providing our issuing offices the tools necessary to provide service to their customers, Stewart Title is willing to insure transactions notarized in conformity with the provisions of the Governor’s Executive Order 2020-41 if the following underwriting requirements are met:

• The provisions of Executive Order 2020-41 paragraph 5 (a) through (h) must be met in their entirety.
• The transaction involves a cash/purchase; purchase money transaction with financing; or a transaction involving a refinance, either with or without cash-out. In other transactions, please obtain Stewart Underwriter approval.
• Parties, including the lender, must authorize in writing the use of the video notary process.
• The approval of the audiovisual feature is limited to a policy amount up to $1,000,000.00. Please note that the maximum amount for a Michigan authorized RON closing conforming to the current statutes is $5,000,000.00
• The caveat here is that no matter what method of notarization and document filing you are doing, you will still need to confirm with the County Register of Deeds office, prior to closing, that they will accept the documents and notarization for recording. 

Also, it is important to note that the Lender in the transaction will have their own mandates for recording documents or notarization that will need to be satisfied.

Suggestions for Audio/Video Conferencing Technology:

As a convenience to our agents and to aid your search in locating a service provider, we’ve listed some providers which offer audio/video conferencing and the ability to record such conference:

Microsoft Teams: https://support.office.com/en-us/article/record-a-meeting-in-teams-34dfbe7f-b07d-4a27-b4c6-de62f1348c24

GoToMeeting: https://www.gotomeeting.com/features/online-meeting-recording

Cisco Webex: https://help.webex.com/en-us/nzpa89j/Manage-Cisco-Webex-Meetings-Recordings 

Please note that remote notarization and Remote Online Notarization are different processes with different requirements. 

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

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