Bill S.943

SENATE DOCKET, NO. 927 FILED ON: 1/18/2023

SENATE . . . . . . . . . . . . . . No. 943

By Mr. Crighton, a petition (accompanied by bill, Senate, No. 943) of Brendan P. Crighton, Jacob R. Oliveira, Susannah M. Whipps and Thomas M. Stanley for legislation to modernize notary services. The Judiciary.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act modernizing notary services.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 221 of the General Laws is hereby amended by inserting after section 46D the following section:-

Section 46E. (a) With respect to real estate closings involving the use of communication technology, as defined in chapter 222, the following words, as used in this section, shall, unless the context clearly requires otherwise, have the following meanings:

“Closing,” the consummation of a transaction between parties for the purpose of granting a mortgage or otherwise transferring title to a one to four family residential dwelling, including the execution of documents necessary to accomplish the valid and proper transfer of title and the transfer of the consideration for the conveyance, whether done simultaneously with or subsequent to the execution of documents for the transfer of title; provided, however, that a closing as defined herein shall not include any transaction in which the consideration for the transfer of title is evidenced solely by a home equity loan or line of credit that is secured by a mortgage on a one to four family residential dwelling, does not involve the issuance of a lender’s or mortgagee’s policy of title insurance in connection with such transaction, and is to be retained by the lender and not sold on the secondary mortgage market.

“Creditor”, a person or entity that holds or controls, partially, wholly, indirectly, directly or in a nominee capacity, a mortgage loan securing real property, including, but not limited to, an originator, holder, investor, assignee, successor, trust, trustee, nominee holder, Mortgage Electronic Registration Systems or mortgage servicer, including the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation; provided, that “creditor” shall also include any servant, employee, representative or agent of a creditor.

(b) Notwithstanding any general or special law to the contrary, no person, unless that person has been admitted as an attorney in the commonwealth and has not been disqualified from the practice of law due to resignation, disbarment or suspension or placed on inactive status, shall (i) direct or manage a closing; or (ii) take the following actions in preparation for, or in furtherance of, a closing:

(1) giving or furnishing legal advice as to the legal status of title;

(2) ensuring that the seller, or the borrower-mortgagor in a mortgage refinancing transaction, is in a position to convey marketable title to the residential property at issue;

(3) issuing a certification of title pursuant to section 70 of chapter 93;

(4) drafting a deed to real property on behalf of another;

(5) ensuring that the documents necessary for the transfer of title are executed and acknowledged in accordance with the laws of the commonwealth; or

(6) disbursing, or managing the disbursement, of consideration for the conveyance.

(c) The attorney general may initiate an action, including a petition for injunctive relief, against any person or creditor whose violation of this section is part of a pattern, or consistent with a practice, of noncompliance. The supreme judicial court and the superior court shall have concurrent jurisdiction in equity. A person having an interest or right that is or may be adversely affected by a violation of this section may initiate an action against the person or creditor for private monetary remedies.

SECTION 2. Chapter 222 of the General Laws is hereby amended by striking out section 1, as appearing in the 2020 Official Edition, and inserting in place thereof the following section:-

Section 1. For the purposes of this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:

“Acknowledgment”, a notarial act in which an individual, at a single time appears in person before a notary public, is identified by the notary public through satisfactory evidence of identity and presents a document or electronic record to the notary public and indicates to the notary public that the signature on the document or record before the notary was voluntarily affixed by the individual for the purposes stated within the document or electronic record or that the signature on the document or electronic record was the individual’s free act and deed and, if applicable, that the individual was authorized to sign in a particular representative capacity.

“Affirmation”, a notarial act, or part thereof, that is legally equivalent to an oath and in which an individual, at a single time appears in person before a notary public, is identified by the notary public through satisfactory evidence of identity and makes a vow of truthfulness or fidelity while appearing before the notary public under the penalties of perjury without invoking a deity.

“Appears in person”, “appears personally”, or “personally appears”, (i) being in the same physical location as another individual and close enough to see, hear, communicate with and exchange tangible identification credentials with that individual; or (ii) interacting with a remotely-located individual by means of communication technology in compliance with section 28.

“Communication technology”, an electronic device or process that allows a notary public and a remotely-located individual to communicate with each other simultaneously by sight and sound, and when necessary and consistent with other applicable laws, facilitates communication with a remotely-located individual with a vision, hearing or speech impairment.

“Copy certification”, a notarial act in which a notary public is presented with a document that the notary public copies, or supervises the copying thereof, by a photographic or electronic copying process, compares the original document to the copy and determines that the copy is accurate and complete.

“Credential analysis”, a process or service that meets guidelines established by the secretary, through which a third person affirms the validity of a current government-issued identification credential by review of public and proprietary data sources.

“Credible witness”, an honest, reliable and impartial person who personally knows an individual appearing before a notary and who takes an oath or affirmation before the notary to vouch for that individual’s identity.

“Dynamic knowledge-based authentication”, a form of identity proofing based on a set of questions that pertain to an individual and are formulated from public or proprietary data sources.

“Electronic”, relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.

“Electronic record”, information that is created, generated, sent, communicated, received or stored by electronic means.

“Electronic signature”, an electronic sound, symbol or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.

“Foreign state”, a jurisdiction other than the United States, a state or a federally recognized Indian tribe.

“Identity proofing”, a process or service that meets the guidelines established by the secretary, by which a third person provides a notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources, which may include credential analysis, dynamic knowledge-based authentication, analysis of biometric data including, but not limited to, facial recognition, voiceprint analysis or fingerprint analysis or other means permitted by the secretary.

“Journal”, a chronological record of notarial acts performed by a notary public.

“Jurat”, a notarial act in which an individual, at a single time appears in person before a notary public, is identified by the notary public through satisfactory evidence of identity and: (i) presents a document or electronic record; (ii) signs the document or electronic record in the presence of the notary public; and (iii) takes an oath or affirmation before the notary public vouching for the truthfulness or accuracy of the contents of the signed document or electronic record.

“Notarial act” or “notarization”, an act that a notary public is empowered to perform, including acts performed electronically in accordance with this chapter.

“Notarial certificate”, the part of or attachment to a notarized document or electronic record for completion by the notary public that bears the notary public’s signature and seal and states the venue, date and facts that are attested by the notary public in a particular notarial act or notarization.

“Notary public” or “notary”, a person commissioned to perform official acts pursuant to Article IV of the Amendments of the Constitution.

“Notarial seal,” (i) a physical image or impression affixed, stamped or embossed on a tangible record; or (ii) an electronic image attached to, or logically associated with, an electronic record.

“Oath”, a notarial act, or part thereof, that is legally equivalent to an affirmation and in which an individual, at a single time, appears in person before a notary public, is identified by the notary public through satisfactory evidence of identity and takes a vow of truthfulness or fidelity under the penalties of perjury by invoking a deity.

“Official misconduct”, a violation of sections 13 to 24, inclusive, or any other general or special law in connection with a notarial act or a notary public’s performance of an official act in a manner found to be grossly negligent or against the public interest.

“Personal knowledge of identity”, familiarity with an individual resulting from interactions with that individual over a period of time sufficient to ensure beyond doubt that the individual is the person whose identity is claimed.

“Principal”, a person whose signature is notarized or a person taking an oath or affirmation before a notary public.

“Record”, information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

“Regular place of work or business”, a place where an individual spends a substantial portion of their working or business hours.

“Remotely-located individual”, an individual who is not in the physical presence of the notary public who performs a notarial act pursuant to section 28 of this chapter.

“Satisfactory evidence of identity”, identification of an individual based on: (i) at least 1 current document issued by a United States or state government agency bearing the photographic image of the individual’s face and signature; (ii) the oath or affirmation of a credible witness unaffected by the document or transaction who is personally known to the notary public and who personally knows the individual; or (iii) identification of an individual based on the notary public’s personal knowledge of the identity of the principal; provided, however, that for a person who is not a United States citizen, “satisfactory evidence of identity” shall mean identification of an individual based on a valid passport or other government-issued document evidencing the individual’s nationality or residence and which bears a photographic image of the individual’s face and signature. For purposes of a notarial act performed using communication technology for a remotely-located individual, “satisfactory evidence of identity” shall be determined pursuant to section 28.

“Secretary”, the secretary of the commonwealth.

“Signature witnessing”, a notarial act in which an individual, at a single time, appears in person before a notary public, is identified by the notary public through satisfactory evidence of identity and presents a document or electronic record and signs the document or electronic record in the presence of the notary public.

“Tamper evident”, the use of a set of applications, programs, hardware, software or other technologies that will display evidence of any changes to an electronic record.

“Tangible journal”, a journal created on a fixed tangible medium in a permanent bound register with numbered pages.

“United States”, a location within the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands and any territory, insular possession or other location subject to the jurisdiction of the United States.

SECTION 3. Section 1A of said chapter 222, as so appearing, is hereby amended by striking out the figure “26”, in line 6, and inserting in place thereof the following figure:- 29.

SECTION 4. Section 8 of said chapter 222, as so appearing, is hereby amended by striking out subsection (b) and inserting in place thereof the following subsection:-

(b)(1) A notary public shall keep an official notarial seal that shall be the exclusive property of the notary public. A notary public shall not permit another to use such notarial seal. A notary public shall obtain a new seal upon renewal of the commission, upon receipt of a new commission or if the name of the notary public has changed. The notarial seal shall include: (i) the notary public’s name exactly as indicated on the commission; (ii) the words “notary public” and “Commonwealth of Massachusetts” or “Massachusetts”; (iii) the expiration date of the commission in the following words: “My commission expires ___”; and (iv) a facsimile of the seal of the commonwealth.

(2) If a notarial seal that requires ink is employed, black ink shall be used. The seal of a notary public may be a digital image that appears in the likeness or representation of a traditional physical notary public seal. Only the notary public whose name and registration number appear on an electronic seal shall affix that seal. If the seal is electronically generated, it shall include the words “Electronically affixed”. The requirements of this subsection shall be satisfied by using a seal that includes all of the information required by this section. Failure to comply with this section shall not affect the validity of any instrument or the record thereof.

SECTION 5. Section 16 of said chapter 222, as so appearing, is hereby amended by inserting after the word “notarization”, in line 3, the following words:- , except as specifically provided in this chapter.

SECTION 6. Said section 16 of said chapter 222, as so appearing, is hereby further amended by inserting after the word “services” , in line 27, the following words:- ; provided further, that a notary public shall not be precluded from receiving an additional technology services fee that has been clearly disclosed in advance to the person requesting the service and that technology services fee reflects the actual reasonable cost to the notary public of utilizing a third-party technology service provider.

SECTION 7. Section 18 of said chapter 222, as so appearing, is hereby amended by adding the following subsection:-

(e)(1) Whenever the secretary has cause to believe that a notary public registered pursuant to section 28 has engaged in a pattern of conduct, or a standard, practice or procedure that the secretary determines is contrary to section 46E of chapter 221, the secretary may order the notary public to comply with the law. The secretary may adopt regulations governing administrative proceedings under this section.

(2) The attorney general may enforce the order by civil action as provided in said section 46E.

(3) The remedies provided by this section shall not limit the availability of judicial remedies to any person or official.

SECTION 8. Section 20 of chapter 222, as so appearing, is hereby amended in subsection (b) by striking out clause (iii) and inserting in place thereof the following clause:

(iii) failure of a document to contain an acknowledgment that the instrument was the voluntary or free act and deed of the principal or, if executed in a representative capacity, the party on whose behalf the principal is signing shall not affect the validity of the underlying document or the recording of the document.

SECTION 9. Subsection (a) of section 22 of said chapter 222, as so appearing, is hereby amended by striking out the second sentence and inserting in place thereof the following 3 sentences:- A journal may be created on a fixed tangible medium or in an electronic format. If the journal is maintained on a tangible medium, it shall be a permanent, bound register with numbered pages. If the journal is maintained in an electronic format, it shall be in a permanent, tamper-evident electronic format complying with the rules of the secretary.

SECTION 10. Said section 22 of said chapter 222, as so appearing, is hereby further amended by striking out, in lines 6 and 7, the words “active journal at the same time” and inserting in place thereof the following words:- tangible journal at any time. A notary may keep more than 1 electronic journal provided that each electronic journal conforms to the requirements of subsection (a).

SECTION 11. Said section 22 of said chapter 222, as so appearing, is hereby further amended by striking out, in lines 33 and 34, the words “(3) the fee, if any, charged for the notarial act; and (4) the address where the notarization was performed” and inserting in place thereof the following words:- (3) a notation indicating whether the notarial act was conducted in person or remotely; (4) the fee, if any, charged for the notarial act; and (5) the address where the notarization was performed; provided, that if the notarial act was performed remotely, the notary shall include the address of the notary and each principal and witness.

SECTION 12. Said section 22 of said chapter 222, as so appearing, is hereby further amended by striking out, in lines 51 and 57, in each instance, the word “state”.

SECTION 13. Said section 22 of said chapter 222, as so appearing, is hereby further amended by striking out subsection (i) and inserting in place thereof the following subsection:-

(i)If not in use, a journal shall be kept under the exclusive control of the notary public or a third-party technology service provider designated by the notary public, provided there is a mutual agreement by both the notary public and the third-party service provider, and shall not be used by any other notary public or surrendered to an employer upon termination of employment.

SECTION 14. Said chapter 222 is hereby further amended by adding the following 3 sections:-

Section 27. (a) A notary public may select 1 or more tamper-evident technologies to perform notarial acts with respect to electronic records. A person may not require a notary public to perform a notarial act with respect to an electronic record with a technology that the notary public has not selected. Any technology approved by the secretary under subsection (b) of this section and selected by a notary public shall require the notary public's electronic signature and electronic seal to be:

(i) Unique to the notary public;

(ii) Capable of independent verification;

(iii) Retained under the sole control of the notary public; and

(iv) Attached to or logically associated with the electronic record in a tamper-evident manner.

(b) The secretary shall establish standards for approval of technologies for use by notaries public commissioned by the commonwealth.

(c) A tangible copy of an electronic record shall be accepted as the equivalent of an original document for purposes of recording said copy; provided, that: (i) the copy contains a notarial certificate that satisfies all requirements for an original document to be accepted for recording; (ii) the copy satisfies all requirements for recording an original document set forth in chapter 183 and chapter 185, as applicable; and (iii) the notarial officer executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic record.

Section 28. (a) A notary public physically located in the commonwealth may perform a notarial act using communication technology for a remotely-located individual who is the principal in a notarial act if the notary public:

(i)(A) has personal knowledge of the identity of the remotely-located individual; (B) has identified the remotely-located individual by means of an oath or affirmation of a credible witness unaffected by the document or transaction who is personally known to the notary public and who personally knows the remotely-located individual; or (C) reasonably can identify the remotely-located individual by at least 2 different types of identity proofing processes or services;

(ii) is able to execute the notarial act in a single, real-time session;

(iii) is reasonably able to confirm that a record before the notary public is the same record in which the remotely-located individual made a statement or on which the remotely-located individual executed a signature; and

(iv) the notary public, or a person acting on behalf of the notary public, creates an audio-visual recording of the performance of the notarial act.

(b) A notary public physically located in the commonwealth may perform a notarial act using communication technology for a remotely-located individual who is the principal in a notarial act and is located outside the United States if: (i) the record 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 involves property located in the territorial jurisdiction of the United States or a transaction substantially connected with the United States; and (ii) 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.

(c) A notary public shall not use communication technology to notarize a record related to the electoral process, or a will, codicil or document purporting to be a will or codicil.

(d) Before a notary public performs the notary public’s initial notarization using communication technology, the notary public shall: (i) register as a remote notary with the secretary; (ii) inform the secretary that the notary public will perform remote notarizations; and (iii) identify the communication technology that the notary public intends to use. The communication technology must conform to the requirements of this chapter and any rules adopted by the secretary. The notice shall be submitted in the form required by the secretary and shall: (A) include an affirmation that the notary public has read and will comply with this section and all rules adopted by the secretary; (B) be accompanied by proof that the notary public has successfully completed any training and examination required by this section or that may be required by the secretary; and (C) identify a usual place of business in this state or, if a foreign entity, identify a registered agent, and in either case identify an address for service of process in connection with a civil action or other proceeding.

(e) If a notarial act is performed pursuant to this section, the certificate of notarial act required by section 15 shall indicate that the notarial act was performed remotely using communication technology and identify the venue for the notarial act as the county within the commonwealth where the notary public was physically located while performing the notarial act.

(f) A notary public, a guardian, conservator or agent of a notary public or a personal representative of a deceased notary public shall retain the audio-visual recording created under clause (iv) of subsection (a) or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. The recording shall be retained for 10 years after the recording is made.

(g) Upon request, the notary public shall make available electronic copies of the pertinent entries in the electronic journal and provide access to any related audio-video communication recording to the following persons: (i) the parties to an electronic record notarized by the notary public; (ii) the title insurer reviewing an insured transaction in the context of an audit of its agent, if the agent conducted the electronic notarial act as an element of the insured transaction; and (iii) any other persons pursuant to a subpoena, court order, law enforcement investigation or other lawful inspection demand.

(h) The secretary shall establish standards for the use of communication technology and identity proofing. The secretary shall create and maintain a registry of communication technology service providers who meet the established standards as certified by the communication technology service provider. A notary public who uses communication technology shall utilize communication technology and identity proofing from communication technology service providers on the secretary's registry.

(i) In addition to the authority set forth in subsection (h), the secretary may adopt rules under this section regarding performance of the notarial act. The rules may: (i) prescribe the means of performing a notarial act involving a remotely located individual using communication technology; and (ii) establish standards for the retention of an audio-visual recording created under clause (iv) of subsection (a).

(j) By allowing its communication technology or identity proofing to facilitate a notarial act for a remotely-located individual or by providing storage of the audio-visual recording created under clause (iv) of subsection (a), the provider of the communication technology, identity proofing or storage shall appoint the secretary as the provider’s agent for service of process in any civil action in the commonwealth related to the notarial act.

(k) The following minimum standards shall apply to notarizations utilizing communication technology performed by a notary public in the commonwealth; provided, that the secretary may adopt rules setting standards that are equally or more protective:

(i) Identity proofing by means of dynamic knowledge-based authentication that shall have, at a minimum, the following security characteristics:

(A) the remotely located individual shall be presented with 5 or more questions with a minimum of 5 possible answer choices per question;

(B) each question shall be drawn from a third-party provider of public and proprietary data sources and shall be identifiable to the social security number or other identification information of the remotely located individual, or such individual’s identity and historical events records;

(D) the remotely-located individual must answer a minimum of 80 per cent of the questions correctly;

(E) if the remotely-located individual fails the first attempt, the individual may be offered 1 additional attempt within 24 hours of the initial failed attempt; and

(F) during the second attempt, the remotely located individual may not be presented with more than 3 questions from the prior attempt.

(ii) Identity proofing by means of credential analysis using 1 or more commercially available automated software or hardware processes that, consistent with sound commercial practices, (A) aid the notary public in verifying the authenticity of the credential by analyzing the integrity of visual, physical or cryptographic security features to indicate that the credential is not fraudulent or inappropriately modified; and (B) use information held or published by the issuing source or authoritative source to confirm the validity of credential details. The results of the credential analysis process shall be provided to the notary public performing the notarial act.

(iii) Use of audio-video communication technology in completing notarizations that shall meet the following requirements: (A) the signal transmission shall be reasonably secure from interception, access or viewing by anyone other than the participants communicating; and (B) the technology shall provide sufficient audio clarity and video resolution to enable the notary to communicate with the remotely-located individual and any witness, and to confirm the identity of the remotely-located individual and any witness, as required, using identity proofing.

(iv) The communication technology shall have satisfied tamper-evident technology requirements by use of technology that renders any subsequent change or modification to the electronic record evident.

(v) With respect to notarial acts conducted during a closing, as defined in section 46E of chapter 221, the communication technology shall be engaged by the closing attorney with the approval of the lender. Upon successful verification of the identity of the remotely-located individual by the notary as required by paragraph (i) of subsection (a), such attorney shall enter and affirm the attorney’s board of bar overseers registration number prior to the conduct of the first notarial act. The communication technology shall be responsible for recording such information in a manner that is logically associated with the transaction and shall retain such information for the same length of time and in the same manner as it retains all other information regarding the notarial act.

(vi) In addition to any coverage it elects to provide for individual notaries public, maintenance of errors and omissions insurance coverage by a communication technology service provider shall be provided in a total amount of at least $250,000 in the annual aggregate with respect to potential errors or omissions in or relating to the technology or processes provided by the communication technology service provider. A notary public shall not be responsible for the security of the systems used by the remotely-located individual or others to access the notarization session.

(vii) Prior to a notary public’s initial notarization using communication technology, the notary public shall complete a 2-hour in-person or online course addressing the duties, obligations and technology requirements for conducting remote notarizations offered by the secretary or a vendor approved by the secretary. Each such provider of communication technology shall make the in-person or online course generally available to all applicants. Regardless of membership in the provider’s organization, the provider shall charge each attendee the same cost for the course unless the course is provided in conjunction with a regularly scheduled meeting of the provider’s membership.

(l) Notwithstanding any general or special law to the contrary, with respect to any document executed in the course of a closing, as defined in section 46E of chapter 221, involving a mortgage or other conveyance of title to residential real property, only a notary public appointed pursuant to this chapter who is an attorney licensed to practice law in the commonwealth, or a non-attorney who is under the direct supervision of or acting pursuant to a direct request by the attorney directing or managing the closing, shall perform an acknowledgment, affirmation or other notarial act utilizing communication technology. The notarial certificate affixed to any such document shall recite the board of bar overseers registration number of the attorney notary, or of the supervising attorney for a document notarized by a non-attorney. Failure to comply with this section shall not affect the validity of the document or the recording thereof.

(m) The chief justice of the land court may promulgate rules, orders, guidelines, and directives concerning sections 27 and 28 of this chapter as they pertain to the execution, acknowledgment, and registration of documents affecting title to land whose title has been registered and confirmed by the land court pursuant to chapter 185.

Section 29. A notary public shall not use, sell, or offer to sell to another person, or transfer to another person for use or sale, any personal information obtained under section 28 that identifies a remotely-located individual, a witness to a remote notarization or a person named in a record presented for remote notarization, except: (i) as necessary to facilitate performance of a notarial act; (ii) to effect, administer, enforce, service or process a record provided by or on behalf of the individual or the transaction of which the record is a part; or (iii) in accordance with this section, including the rules adopted pursuant thereto, or other applicable federal or state law, or to comply with a lawful subpoena or court order.

SECTION 15. Sections 27 to 29 of chapter 222 of the General Laws, as inserted by section 14 of this act, shall take effect in 180 days. All other sections shall take effect in 90 days.

Name:	District/Address:
Brendan P. Crighton	Third Essex
Jacob R. Oliveira	Hampden, Hampshire and Worcester	2/8/2023
Susannah M. Whipps	2nd Franklin	2/8/2023
Thomas M. Stanley	9th Middlesex	2/14/2023