MN Senate File 893

Legislation

State: Minnesota
Signed: May 20, 2018

Effective: January 01, 2019
Chapter: 176

Summary

Minnesota has enacted the Revised Uniform Law on Notarial Acts and specific provisions authorizing Notaries to perform remote online notarizations.

Affects

Adds sections 358.51 to 358.76 to; amends sections 5.15, 325K.23, 358.50, 359.01, 359.04, 507.24, 508.48, 508A.48 and 358.116 of; and repeals sections 358.41, 358.42, 358.43, 358.44, 358.45, 358.46, 358.47, 358.48, 358.49 and 359.12 of the Minnesota Statutes.

Changes

Definitions

Defines the following terms: “acknowledgment,” “in a representative capacity,” “notarial act,” “notarial officer,” “notary public,” “official stamp,” “person,” “sign,” “signature,” “stamping device,” “state,” and “verification on oath or affirmation.”
Defines the following terms related to remote online notarization: “appear,” “communication technology,” “credential analysis,” electronic journal,” “identity proofing,” “outside the United States,” “principal,” “remote online notarial certificate,” “remote online notarization,” “remote online Notary public,” “remote presentation” and “remotely located individual.”

Notarial Acts

Authorizes a Notary to certify that a paper copy of an electronic document that was originally in electronic form is a true and correct copy of the original electronic document.
Requires a Notary’s certificate for this new type of copy certification to (a) be signed and dated by the Notary, and be signed in the same manner as required by Section 359.061; (b) identify the jurisdiction in which the certification is performed; (c) contain the Notary’s title; (d) indicate the Notary’s commission expiration date, if any; and (e) include the Notary’s official seal or stamp.
Provides a certificate form for certifying that a paper copy of an electronic document that was originally in electronic form is a true and correct copy that is sufficient to meet the requirements of the new law.
Requires a Notary who certifies that a paper copy of an electronic document that was originally in electronic form is a true and correct copy to (a) confirm that the electronic document contains an electronic signature that is capable of independent verification and renders any subsequent changes or modifications to the electronic document evident; (b) personally print or supervise the printing of the electronic document onto paper; and (c) not make any changes or modifications to the electronic document other than the certification required for the notarial act.
Exempts a Notary from certifying a paper copy of a plat, map or survey of real property as a true copy of an electronic document if under another Minnesota law, or if under a rule, regulation, or ordinance applicable to the office of the county recorder or the office of registrar of titles (a) there are requirements of format or medium for the execution, creation or recording of the plat, map or survey beyond the requirements applicable to a deed to real property; or (b) the plat, map or survey must be recorded in a different location than a deed to real property.

Authority to Refuse to Perform Notarial Acts

Authorizes a notarial officer to refuse to perform a notarial act if the officer is not satisfied that (a) the individual executing the record is competent or has the capacity to execute the record; or (b) the individual's signature is knowingly and voluntarily made, and further authorizes a notarial officer to refuse to perform a notarial act unless refusal is prohibited by law other than Minnesota Statutes Sections 358.51 to 358.76.

Appearance and Identification of Signer; Signature of Person Unable to Sign

Clarifies that except as provided in Section 358.645 (relating to a remote online notarization performed using communication technology), if a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature must appear personally before the notarial officer.
Provides that a notarial officer has personal knowledge of the identity of an individual appearing before the officer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
Provides that a notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual by means of the following written identification credentials: (a) a passport, driver's license, or government-issued nondriver identification card that is currently valid; or (b) another form of government identification issued to an individual that is currently valid, contains the individual's signature or a photograph of the individual and is satisfactory to the officer.
Provides that a notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual by a verification on oath or affirmation of a credible witness personally appearing before the officer and known to the officer or whom the officer can identify on the basis of a passport, driver's license or government-issued nondriver identification card that is current or expired not more than three years before performance of the notarial act.
Permits a notarial officer to require an individual to provide additional information or identification credentials necessary to assure the officer of the identity of the individual.
Provides that if an individual is physically unable to sign a record, the individual’s signature may be signed by following Minnesota Statutes Section 645, subdivision 14. (Note: that statute allows a signature to be made by (a) the person's mark or name written by another at the request and in the presence of the person or (b) a rubber stamp facsimile of the person's actual signature, mark or a signature of the person's name or a mark made by another and adopted for all purposes of a signature by the person with a motor disability and affixed in the person's presence.)

Certificate of Notarial Act and Official Stamp

Requires a notarial act to be evidenced by a certificate of a notarial act.
Requires a notarial certificate to (a) be executed contemporaneously with the performance of the notarial act; (b) include the jurisdiction in which the notarial act is performed, (c) include the notarial officer’s title and the date of expiration of the Notary’s commission, if the officer is a Notary; and (c) be dated and signed by a Notary with the Notary’s signature in the same manner as on file with the Secretary of State.
Requires a Notary to affix the Notary’s official stamp on the notarial certificate of a tangible record.
Permits, but does not require, a notarial officer other than a Notary to affix an official stamp on the notarial certificate of a tangible record if the certificate contains the signature of the officer, date of notarization, jurisdiction where the notarial act was performed and the title of the notarial officer.
Permits, but does not require, a Notary or notarial officer to attach or logically associate an official stamp on the notarial certificate of an electronic record if the certificate contains the signature of the notarial officer, date of notarization, jurisdiction where the notarial act was performed and the title of the notarial officer.
Clarifies that the text of a notarial certificate is sufficient if it meets the requirements of Section 358.65, subdivisions 1 and 2 (see # 2 above) and it (a) is in a short form set forth in Section 358.66; (b) is in a form otherwise permitted by the law of Minnesota; (c) is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed; or (d) sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the notarial act as provided in Sections 358.55, 358.56, and 358.57 or law of Minnesota other than Sections 358.51 to 358.76.
Clarifies that by signing a notarial certificate, a notarial officer certifies that the officer has complied with Sections 358.54, 358.55, and 358.56 (authorizing the officer to perform notarial acts, prohibiting notarization of a record in which the officer or officer’s spouse is a party, or in which either has a direct beneficial interest and requiring the signer to be physically present and identified on the basis of personal knowledge or satisfactory evidence).
Prohibits a notarial officer from signing a notarial certificate on a tangible or electronic record until the notarial act has been performed.
Requires a notarial certificate to be securely affixed to a paper record, or logically associated with, an electronic record according to any standards established by the commissioning officer or agency if standards have been published.
Prescribes revised short form certificates for all authorized notarial acts.
Requires the Notary’s official stamp to be capable of being copied together with the paper record to which it is affixed or attached or with which it is logically associated (that is, on an electronic record).
Clarifies that a Notary is responsible for the security of the Notary’s stamping device and may not allow another person to use the device to perform a notarial act.

Prohibited Acts; Advertising Requirements; Grounds for Administrative Action Against the Commission of a Notary

Prohibits a notarial officer from performing a notarial act with respect to a record to which the officer or the officer's spouse is a party, or in which either of them has a direct beneficial interest, and further provides that such notarial act is voidable.
States that a commission to perform notarial acts does not allow an individual to (a) assist persons in drafting legal records, give legal advice or otherwise practice law; (b) act as an immigration consultant or expert on immigration matters; (c) represent a person in a judicial or administrative proceeding relating to immigration to the U.S. or U.S. citizenship; or related matters, or (d) receive compensation for performing the activities in (a) through (c).
Prohibits a Notary from engaging in false or deceptive advertising.
Prohibits a Notary from using the term “notario” or “notario publico.”
Prohibits a Notary from withholding access to or possession of any original record provided by a person that requests performance of a notarial act, except as otherwise allowed by law.
Prohibits a Notary, other than an attorney licensed to practice law in Minnesota, from advertising or representing that the Notary may assist persons in drafting legal records, give legal advice or otherwise practice law.
Requires a Notary who is not an attorney and who in any manner advertises or represents that the Notary offers notarial services, whether orally or in a record, including broadcast or print media, and the Internet, to include the following statement or an alternative statement authorized by the commissioning officer or agency in the advertisement or representation, prominently and in each language used in the advertisement or representation: “I am not an attorney licensed to practice law in this state. I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities.” If the form of advertisement or representation is not broadcast and print media, or the Internet, and does not permit the inclusion of the statement due to size, the statement must be prominently displayed or provided at the place of performance of the notarial act before the act is performed.
Permits the Commissioner of Commerce to take action against the commission of a Notary for (a) failure to comply with Sections 358.51-358.76; (b) a fraudulent, dishonest or deceitful misstatement or omission in the application for a commission as a Notary; (c) a conviction of the applicant or Notary of any felony or a crime involving fraud, dishonesty or deceit; (d) a finding against, or admission of liability by, the applicant or Notary in any legal proceeding or disciplinary action based on the applicant's or Notary's fraud, dishonesty or deceit; (e) failure by the Notary to discharge any duty required of a Notary, whether by Sections 358.51 to 358.76 or any federal or state law or regulation; (f) use of false or misleading advertising or representation by the Notary representing that the Notary has a duty, right or privilege that the Notary does not have; (g) denial, refusal to renew, revocation, suspension or conditioning of a Notary commission in another state; or (h) suspension or revocation of a license for the conduct of a profession, occupation, trade or business of a Notary who is performing notarial acts in connection with the profession, occupation, trade, or business.
Clarifies that a Notary may be removed from office only by the Governor, the district court or the Commissioner of Commerce.
Provides that an applicant or a Notary is entitled to timely notice and hearing in accordance with Minnesota Statutes Chapter 14 if the Commissioner of Commerce denies, refuses to renew, revokes, suspends, imposes conditions on or otherwise sanctions a commission of an applicant or Notary.
Clarifies that an administrative action taken against the commission of a Notary does not prevent an aggrieved person from seeking and obtaining other remedies provided by law, whether criminal or civil.
Provides that upon removal from office by the Commissioner of Commerce, a Notary must deliver the Notary’s official stamp to the Commissioner.

Notarial Acts on Electronic Records

Requires that any technology a Notary uses to perform a notarization on an electronic record must be tamper-evident and defines tamper evident as meaning that any changes to an electronic document must display evidence of the change.
Permits a Notary to use one or more tamper-evident technologies to perform notarial acts on electronic records.
Prohibits any person from requiring a Notary to perform a notarial act with respect to an electronic record with a technology the Notary has not selected.
Requires a Notary to notify the Secretary of State that the Notary will be performing notarial acts with respect to electronic records prior to performing the Notary’s first notarial act on an electronic record.

Remote Online Notary Registration

Permits a Minnesota Notary to apply for remote online notarization registration.
Clarifies that before a Notary performs a remote online notarization, the Notary must register with the Secretary of State according to Section 359.01, subdivision 5, and must certify that the Notary intends to use communication technology that conforms to Section 358.645.
Clarifies that unless terminated, the term of registration to perform remote online notarial acts begins on the registration starting date set by the Secretary of State and continues as long as the Notary’s current commission to perform notarial acts remains valid.
Provides that upon an applicant’s fulfillment of the requirements for remote online notarization registration, the Secretary of State must record the registration under the applicant’s Notary commission number.
Permits the Secretary of State to reject a registration application if the applicant fails to comply with Section 358.645, subdivision 2, paragraphs (a) to (d).
Clarifies that a remote online Notary (a) is a Notary for purposes of Chapter 359 and is subject to and must be appointed and commissioned under that chapter; (b) may perform notarial acts as provided by Chapter 358 and 359 in addition to performing remote online notarizations; and (c) may perform remote online notarizations authorized under Section 358.645.
Permits the Commissioner of Commerce to revoke a registration if the applicant fails to comply with Section 358.645, subdivisions 2 to 6.
Provides that except as provided by Section 358.645, subdivision 8, paragraph (b), a remote online Notary whose registration terminates must destroy the coding, disk, certificate, card, software or password that enables electronic affixation of the online Notary’s official electronic signature or seal; and further provides that the remote online Notary must certify compliance of this to the Secretary of State through the Secretary online commission record.
Clarifies that a former remote online Notary whose registration terminated for a reason other than revocation or a denial of renewal is not required to destroy the items described in Section 358.645, subdivision 8, paragraph (a) if the former remote online Notary is reregistered as a remote online Notary with the same electronic signature and seal within three months after the former remote online Notary’s registration terminated.

Standards for Remote Online Notarial Acts

Clarifies that a remote online notarial act meeting the requirements of Section 358.645 satisfies the requirement of any Minnesota law relating to a notarial act that requires a principal to appear or personally appear before a Notary or that the notarial act be performed in the presence of a Notary.
Permits a remote online Notary to perform a remote online notarial act only while the remote online Notary is physically located in Minnesota.
Permits a remote online Notary physically located in this Minnesota to perform a remote online notarial act for a remotely located individual who is physically located in Minnesota, outside Minnesota, but within the United States or outside the United States.
Clarifies that if the remotely located individual is located outside of the United States, the remote online notarization may be performed if the remote online Notary has no actual knowledge of the remote online notarial act being prohibited in the jurisdiction in which the person is physically located and the person placing an electronic signature on the electronic document confirms to the remote online Notary that the requested remote online notarial act and the electronic document (a) are part of or pertain to a matter that is to be filed with or is currently before a court, governmental entity or other entity in the United States; (b) relate to property located in the United States; or (c) relate to a transaction substantially connected to the United States.
Requires a remote online Notary to verify the identity of a person creating an electronic signature at the time that the signature is taken by using communication technology as defined by Section 358.645.
Provides that the identity of a person for a remote online notarization may be verified by the remote online Notary’s personal knowledge of the person creating the electronic signature.
Provides that the identity of a person for a remote online notarization may be verified by all of the following: (a) remote presentation by the person creating the electronic signature of a currently valid government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the person; (b) credential analysis of the credential described in (a); and (c) identity proofing of the person described in (a).
Requires a remote online notarial act to comply with the following minimum standards for identity proofing using knowledge-based authentication: (a) the signer must be presented with five or more questions with a minimum of five possible answer choices per question; (b) each question must be drawn from a third-party provider of public and proprietary data sources and be identifiable to the signer’s social security number or other identification information, or the signer’s identity and historical events records (c) responses to all questions must be made within a two-minute time constraint; (d) the signer must answer a minimum of 80 percent of the questions correctly; (e) the signer may be offered an additional attempt in the event of a failed first attempt; and (f) during the second attempt, the signer may not be presented with more than three questions from the prior attempt.
Stipulates that the credential analysis must confirm that the credential is valid and matches the signer’s claimed identity using one or more automated software or hardware processes that scan the credential, including its format features, data, bar codes or other security elements.
Authorizes a remote online Notary or the remote online Notary’s employer to charge not more than $25 for the performance of a remote online notarial act, if the act occurs before January 1, 2023.

Certificate of Remote Online Notarial Act

Requires a remote online Notary to attach the remote online Notary’s electronic signature and seal to the electronic notarial certificate of an electronic document in a manner that is capable of independent verification and renders any subsequent change or modification to the electronic document evident.
Requires the electronic notarial certificate for a remote online notarization to include a notation that the notarization is a remote online notarization and that the person appeared before the Notary by means of communication technology if that was the method of the person’s appearance before the Notary.

Records of Remote Online Notarial Acts

Requires a remote online Notary to keep one or more secure electronic journals of remote online notarial acts performed.
Requires the following to be recorded in an electronic journal for each remote online notarization: (a) the date and time of the notarization; (b) the type of notarial act; (c) the type, the title or a description of the electronic document or proceeding; (d) the printed name and address of each principal involved in the transaction or proceeding; (e) evidence of identity of each principal in the form of a statement that the person is personally known to the remote online Notary, a notation of the type of identification document provided to the remote online Notary, or the printed name and address of each credible witness swearing to or affirming the person’s identity, and for each credible witness not personally known to the remote online Notary, a description of the type of identification documents provided to the remote online Notary; and (f) the fee, if any, charged for the notarization.
Requires a remote online Notary to create an audio and video copy of the performance of the notarial act.
Requires the electronic journal and the recordings of remote online notarial acts to be maintained for at least 10 years after the date of the transaction or proceeding.
Permits a remote online Notary to, by written agreement, designate as a repository of the recording and the electronic journal (a) the employer of the remote online Notary if evidenced by a record signed by the remote online Notary and the employer in which the employer agrees to meet the requirements of Section 358.645, subdivision 4, paragraphs (c) and (d); or (b) another repository meeting the requirements Section 358.645, subdivision 4, paragraphs (c) and (d).

Security of Remote Online Notarial Acts

Requires a remote online Notary to take reasonable steps to (a) ensure the integrity, security, and authenticity of remote online notarizations; (b) maintain a backup for the electronic journal and the recordings of remote online notarial acts; and (c) protect the records and backup records from unauthorized access or use.
Requires a remote online Notary to keep the remote online Notary’s electronic journal and electronic seal secure and under the remote online Notary’s exclusive control, which may be done by password-controlled access.
Permits a remote online Notary to, by agreement, use a software platform or service provider to facilitate provision of remote online notarizations and maintenance of and access to records, but may not allow another person to use the remote online Notary’s electronic journal or electronic seal to perform notarial acts or for any unauthorized purpose.
Requires a remote online Notary to immediately notify an appropriate law enforcement agency and the Commissioner of Commerce of the theft or vandalism of the remote online Notary’s electronic journal, electronic signature or electronic seal.
Requires a remote online Notary to immediately notify the Commissioner of Commerce of the loss or use by another person of the remote online Notary ’s electronic journal or electronic seal.
Requires a remote online Notary to take reasonable steps to provide that the communication technology used in a remote online notarization is secure from unauthorized interception.

Recognition of Notarial Acts

Lists the individuals before whom a notarial act in Minnesota may be performed.
Lists the individuals before whom a notarial act outside of Minnesota may be performed, including in another U.S. state, in the jurisdiction and under the authority of federally-recognized Indian tribe, under the authority of federal law and in the jurisdiction and under the authority of a foreign state, and recognizes the validity of these notarial acts.

Validity of Notarial and Remote Online Notarial Acts

Provides that except as otherwise provided in Section 358.54, subdivision 2, the failure of a notarial officer to perform a duty or meet a requirement specified in Sections 358.51 to 358.76 does not invalidate a notarial act performed by the notarial officer.
Clarifies that the validity of a notarial act under Sections 358.51 to 358.76 does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject the notarial act or from seeking other remedies based on Minnesota law other than Sections 358.51 to 358.76 or law of the United States.
Clarifies that the validity provisions of Section 358.73 does not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts.
Clarifies that the validity of a remote online notarization performed by a Minnesota online Notary is governed by the laws of Minnesota.

Other Provisions

Provides that a person who, without authorization, knowingly obtains, conceals, damages or destroys the certificate, disk, coding, card, program, software or hardware enabling a remote online Notary to affix an official electronic signature or seal commits a misdemeanor.
Clarifies that in the event of a conflict between Section 358.645 and any other Minnesota law, Section 358.645 prevails.
Clarifies that the data collected by a Notary in compliance with Section 358.645 is not subject to the Government Data Practices Act (Minnesota Statutes, Chapter 13) but the Notary and the Notary’s agent must make a copy of the individual’s data included in the electronic journal and the audio-video recording available only to the individual whose signature was notarized or to a guardian, conservator, attorney-in-fact or personal representative of an incapacitated or deceased individual.
Clarifies that the individual whose signature was notarized or the individual’s guardian, conservator, attorney-in-fact or personal representative of an incapacitated or deceased individual may consent to the release of the data collected by a Notary in compliance with Section 358.645 to a third party.
Requires the Secretary of State to maintain a list of entities that regularly offer a course of study for a Minnesota remote online Notary that covers the laws, rules, procedures and ethics relevant to notarial acts performed under Section 358.645.
Clarifies that a Notary commission does not provide the Notary any immunity or benefit conferred by Minnesota law on public officials or employees.
Requires the Secretary of State to maintain an electronic database of notaries public (a) through which a person may verify the authority of a Notary to perform notarial acts, including remote online notarial acts; and (b) which indicates whether a Notary has applied to the commissioning officer or agency to perform notarial acts on electronic records or to perform remote online notarial acts.
Clarifies that Notary commission in effect on the effective date of Sections 358.51 to 358.76 continues until its date of expiration.
Clarifies that a Notary who applies to renew a commission on or after the effective date of Sections 358.51 to 358.76 is subject to and must comply with Sections 358.51 to 358.76.
Clarifies that a Notary, in performing notarial acts after the effective date of Sections 358.51 to 358.76, must comply with Sections 358.51 to 358.76.
Repeals Minnesota Statutes Sections 358.41, 358.42, 358.43, 358.44, 358.45, 358.46, 358.47, 358.48, 358.49 and 359.12.
Clarifies that a paper copy of an electronic document bearing an electronic signature that a Notary has certified to be a true and correct copy of a document that was originally in electronic form and bearing an electronic signature satisfies Minnesota’s recording laws.
Clarifies that a paper copy of an electronic document bearing an electronic signature that a Notary has certified to be a true and correct copy of a document that was originally in electronic form and bearing an electronic signature satisfies Minnesota’s Notary laws.
Requires a county recorder to record a paper copy of an electronic document that was originally in electronic form and that is otherwise entitled to be recorded under Minnesota, provided that the paper copy has been certified to be a true and correct copy of the electronic original by a duly commissioned Minnesota Notary as evidenced by a certificate attached to or made a part of the document.
Clarifies that a certificate completed with the information required under the new law for a paper copy of an electronic document that was originally in electronic form and certified to be a true and correct copy is prima facie evidence that the requirements of the new law have been satisfied with respect to the document.
Clarifies that a document purporting to convey or encumber real property or any interest in the property that has been recorded by the office of the county recorder or the office of registrar of titles for the jurisdiction in which the real property is located, although the document may not have been certified by a Notary to be a true copy of a paper printout of an electronically executed document, shall give the same notice to third persons and be effective from the time of recording as if the document had been certified as a true copy by a Notary.
Makes non-substantive and conforming changes.

Analysis

Minnesota Senate File 893 is a complete overhaul of Minnesota's Notary statutes. It repeals the prior Uniform Law on Notarial Acts and replaces it with the Revised Uniform Law on Notarial Acts. In addition, SF 893 enacts substantive laws regulating remote online notarization. In adopting remote online notarization, Minnesota becomes the seventh state to do so and the third in 2018. The remote online notarization statutes are in part based on the Uniform Law Commission's upcoming amendments to the Revised Uniform Law on Notarial Acts, the NNA's Model Electronic Notarization Act, and the MBA/ALTA model remote online notarization statute. SF 893 is so large because it chose not to give the Secretary of State authority to publish rules to implement it; instead, it added granular provisions to the statute that usually go into administrative rules. By far the most detailed provisions are those relating to remote online notarization. In addition, SF 893 gives Notaries authority to perform a new type of copy certification. A Notary now may certify that a paper printout of an electronic notarization performed by the Notary is a true and complete copy of the original electronic record.

Read Senate File 893.