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ND House Bill 1110

Legislation

State: North Dakota
Signed: March 11, 2019

Effective: August 01, 2019
Chapter: 376

Summary

House Bill 1110 enacts the remote notarizations amendments of the Revised Uniform Law on Notarial Acts, allowing Notaries to perform remote online notarizations.

Affects

Creates Sections 44-06.1-13.1 and amends Sections 11-18-15, 44-06.1.1-03, 44-06.1.1-18, and 47-19-26 of the North Dakota Century Code.

Changes

Definitions

  1. Adds the definition of "person," "communication technology," "foreign state," "identity proofing," "outside the United States" and "remotely located individual."

Notification

  1. Requires a Notary to 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 intends to use prior to performing the Notary's initial notarial act for a remotely located individual.
  2. 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.

Notarial Acts

  1. Authorizes a notarial officer to certify a tangible copy of an electronic record is an accurate copy of the electronic record.
  2. Clarifies that the prohibition under NDCC 44-06.1-23(b)(7) does not apply to a tangible copy certified as an accurate copy of an electronic record.

Standards for Remote Notarial Acts

  1. Clarifies that a remotely located individual may comply with the requirement to personally appear for a notarial act by using communication technology.
  2. Allows a Notary to perform a notarial act using communication technology for a remotely located individual if the Notary is able to identify the individual through personal knowledge, the oath or affirmation of a credible witness under NDCC 44-06.1-06(2) or 44-06.1-13.1, or using at least two different types of identity proofing.
  3. Allows a Notary to perform a notarial act using communication technology for a remotely located individual if the Notary is able reasonably 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.
  4. Allows a Notary to perform a notarial act using communication technology for a remotely located individual outside the United States if the record: (a) is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States or (b) involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.

Certificate of Remote Notarial Act

  1. Requires a certificate of notarial act using communication technology for a remotely located individual to indicate the act was performed using communication technology.
  2. Provides a short-form certificate in NDCC 44-06.1-19 for a notarial act using communication technology for a remotely located individual is sufficient if it complies with rules adopted by the Secretary of State or is in the form provided in NDCC 44-06.1-19 and contains a statement substantially as follows: "This notarial act involved the use of communication technology."

Records of Remote Notarial Acts

  1. Requries a Notary to maintain a journal in which the Notary chronicles all notarial acts the Notary performs for remotely located individuals.
  2. Requires a Notary to retain the journal of notarial acts for remotely located individuals for ten years after the performance ofthe last notarial act chronicled in the journal.
  3. Allows a journal of notarial acts performed for remotely located individuals to be created on a tangible medium or in an electronic format.
  4. Provides that a Notary shall maintain only one journal at a time to chronicle all notarial acts performed regarding tangible records and one or more journals to chronicle all notarial acts performed regarding electronic records for remotely located individuals.
  5. Provides if a journal of notarial acts performed for remotely located individuals is maintained on a tangible medium, it must be a permanent, bound register with numbered pages, and if the journal is maintained in an electronic format, it must be in a permanent, tamper-evident electronic format complying with the rules of the Secretary of State.
  6. Requires the following entries to be recorded in the journal for a notarial act involving a remotely located individual: (a) the date and time of the notarial act; (b) a description of the record, if any, and type of notarial act; (c) the full name and address of each individual for whom the notarial act is performed; (d) if identity of the individual is based on personal knowledge, a statement to that effect; (e) if identity of the individual is based on satisfactory evidence, a brief description of the method of identification and the identification credential presented, if any, including the date of issuance and expiration of the identification credential; and (f) the fee, if any, charged by the Notary.
  7. Provides that if the journal of notarial acts performed for remotely located individuals is lost, the Notary loses access to the journal, or the journal is stolen, the Notary promptly shall notify the Secretary of State upon discovering the journal is lost, access is lost, or the journal is stolen.
  8. Provides that on resignation from, or the revocation or suspension of, the commission of a Notary, the Notary shall retain the journal of notarial acts performed for remotely located individuals in accordance with the new law and inform the Secretary of State where the journal is located.
  9. Allows that instead of retaining a journal of notarial acts performed for remotely located individuals, a current or former Notary may transmit the journal to a repository approved by the Secretary of State.
  10. Provides that upon the death or adjudication of incompetency of a current or former Notary, the personal representative or guardian of the Notary shall retain the journal of notarial acts performed for remotely located individuals as provided in the new law or transmit the journal to a repository approved by the Secretary of State.
  11. Allows a Notary to 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 audiovisual recording of the performance of the notarial act.
  12. Requires a Notary, a guardian, conservator, or agent of a Notary, or a personal representative of a deceased Notary to retain the audiovisual recording of the notarial act for a remotely located individual or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording.
  13. Provides that unless a different period is required by rule, the recording of a notarial act for a remotely located individual must be retained for a period of at least ten years after the recording is made.

Other Provisions

  1. Clarifies that a Notary seal on any document filed with a recorder may be an official stamp, as defined in NDCC 44-06.1-01.
  2. Clarifies that a provider of communication technology appoints the Secretary of State as the provider's agent for service of process in any civil action related to a notarial act for a remotely located individual.

Rules

  1. Provides that the Secretary of State may adopt rules for performing notarial acts with respect to remotely located individuals and provides standards for the rules.
Analysis

North Dakota becomes the first state to enact the remote notarization provisions of the 2018 amendments to the Revised Uniform Law on Notarial Acts. The new law allows Notaries to perform notarial acts -- on paper or on electronic records -- for remotely located individuals using communication technology. The Notary must keep a recording of the notarial act and also must keep a separate journal of notarial acts performed for notarial acts involving remotely located individuals. The new law allows the Secretary of State to adopt rules for remote notarizations, and we will be looking to see if the Secretary does so. Any rules adopted to implement HB 1110 will be noted in a separate new law update.

Read House Bill 1110.

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