Reminder of next teleconference and new developments

["jmessing" <jmessing@law-on-line.com>]

This Committee is currently meeting in conjunction with the eTrust subcommittee of the American Bar Association.

---------- Original Message ----------------------------------
From:         John Messing <jmessing@law-on-line.com>
Reply-To:     John Messing <jmessing@law-on-line.com>
Date:          Thu, 12 Feb 2004 21:14:22 -0700

1. The next call will take place on February 17, 2004 at 1 PM EST and 10 AM
PST.

Leader's Name: John Messing
Conference Dial-in: 512-225-3050
Conference Guest Code: 84759#
Maximum Duration of the call: 1.5 Hours
Leader's Phone Number: 520-547-7933

2. At the last teleconference we undertook to begin either a paper or
symposium on the legal infrastructure for eNotarization established by ESign
and the UETA. In furtherance of this goal, and with the kind introduction of
David Weitzel to NASS, I was able to join the NotaryAdministrator's list,
where I posted this message and received this reply:

notaryadministrators           Fri, 6 Feb 2004            Volume 1 : Number
21

In this issue:

        eTrust subcommittee - ABA and LegalXML-OASIS
        Re: eTrust subcommittee - ABA and LegalXML-OASIS


----------------------------------------------------------------------

Date: Sat, 31 Jan 2004 15:47:20 -0500
From: "jmessing" <jmessing@law-on-line.com>
To: <notaryadministrators@list.state.ak.us>
Subject: eTrust subcommittee - ABA and LegalXML-OASIS
Message-ID: <200401311547.AA3788833446@law-on-line.com>

Hello all:

I chair the eTrust subcommittee of the American Bar Association and
LegalXML-OASIS, two separate organizations that have pooled resources to
study best practices and appropriate XML and security standards for
eNotarization, commencing with real estate mortgage originations where
opportunities exist but are not being aggressively pursued for instaneous
electronic mortgage closings, in part because of a lack of legal and
technical infrastructure to support enotarizations. Residential real estate
financing was a 3.3 trillion dollar industry in 2003, almost a third of our
entire national economy. Enormous sums of money are being held up by
outdated paper processes, which distort the economics of closings by
generating gains and losses on the float of money while the closing paper
moves through channels. Large potential revenues from notarial transactions
are also lost to state regulatory bodies like the ones many of you represent
that could be charge for pings confirming sthe identities

Our subcommittee is composed of some actively practicing lawyers, like
myself, representatives from mortgage banking and real estate property
records standard bodies, and notarial membership organizations.

We have adopted as a starting point the view that enotarization in the
presence of a licensed human is preferable to automated notarial
transactions because in a first instance, a human notary can serve as a live
witness to be cross-examined in court if a problem arises, while machine
processes spawn expert witnesses, sometimes armies of them, to explain what
theoretically and practically was involved in a problem case.

We also believe that a determination of voluntary intent by a notary in the
course of a notarized transaction is perhaps even more important to
electronic processes than their paper predecessors.

In a recent case, a U.S. Court of Appeals allowed a signer of an elecronic
document to bow out of a (non-notarized) electronically signed transaction
because the signer testified that there was a mistake made when his
signature was applied. Having a notary pose a question just before signing
about the voluntariness of the signature, and attesting to the response of
the electronic signer should help immensely in such cases. No machine
process has been yet developed that can be used as a substitute for a human
asking a signer about the signer's intent.

We have also concluded as a group that it is desirable to research  whther
existing state and federal legislation authorize and/or actually require
implementation of eNotarization, without further legislation, and at the
earliest possible time.

Some members of the eTrust subcommittee are interested in pursuing an
inquiry to find out if anyone from this group holds a similar or different
view. We invite your participation to formulate one or more papers
propounding for a symposium on the subject, which can be offered for
publication to the Jurimetrics law series of the ABA Section of Science &
Technology Law, which has been very supportive of the work of the
subcommittee.

The purpose of this email is to find out if anyone from this group  has a
point of view on the subject of the proposed paper and would like to be
included either in the work product of such a project or the ongoing
deliberations of the eTrust subcommittee, or both. Another purpose is to
find out if there is an interest in establishing a liasion between the
groups. We welcome the experience of this group.

Thank you and best regards to all.

John Messing
Chair, eTrust Subcommittee, ABA
ABA Representative to OASIS and LegalXML-OASIS
Chair, eNotary TC, LegalXML-OASIS
Member, Steering Committee, LegalXML-OASIS

(520)547-7933 (office)
(520)270-1953 (mobile)
jmessing@law-on-line.com

------------------------------

Date: 02 Feb 2004 09:04:25 -0800
From: WROSCH Thomas E <Thomas.E.Wrosch@state.or.us>
To: notaryadministrators@list.state.ak.us
Subject: Re: eTrust subcommittee - ABA and LegalXML-OASIS
Message-ID:
  <401E8316.6397.6616.000*/c=us/admd=/prmd=or.gov/o=SOS/ou=gwise/s=Wrosch/g=
Thomas/i=E/@MHS>

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John,

Both John Jones and I have links with this group: John has been involved in
conferences and I am a past president and current member, so we may have the
liaison between the notary subcommittee and the NPA already covered.
Nevertheless, any additional links are greatly appreciated.

Although UETA and E-SIGN (for those states that didn't do UETA) specifically
authorize e-notarizations, I think we've observed a number of cases where
state law would get in the way. My take on it is that there are some states
that may have passed laws specifically addressing this situation, while
other
states may have barriers that go beyond the authorizing language.

UETA says the requirement for a notarization is "...satisfied if the
electronic signature of the person authorized to perform those acts,
together
with all other information required to be included by other applicable law,
is
attached to or logically associated with the signature or record." But there
is more to a notarization than information, which is why you can't build a
fully electronic equivalent. For example, Oregon requires a rubber stamp to
make a notarization valid; the seal is both a security measure and an
authenticating element. The physicality - not the information - is what is
important. We believe that law is an impediment to electronic notarizations
in
Oregon. It is likely there are similar elements in other states.

That is not to say electronic notarizations are impossible; just that, in my
opinion, UETA and E-SIGN don't by themselves overcome all legal obstacles.
Parenthetically, when we went to the legislature to enable e-notarizations,
the legislators were very insistent that every bit of the notarial process
be
spelled out in law so they could approve it. It is clear to me that our
legislature, at least, does not see the legal structure as sufficient.

Tom


Tom Wrosch
Office of the Secretary of State
State of Oregon
thomas.e.wrosch@state.or.us
(503) 986-1522
fax: (503) 986-1616

Although Tom has not attended the last several teleconferences, I hope he
will join us at the next one.

3. Since the posting of this message, and as a result, we have three new
members:

Mike Shea <Mike.Shea@SOS.STATE.CO.US>. Mr. Shea is with the Office of the
Secretary of State of Colorado, where an enotarization project is underway.
Jeffrey Kovar <kovarjd@STATE.GOV>. Mr Kovar is with the US Department of
State.
Ben Snipes<news@BenSnipes.com>. Mr. Snipes is with the Association of Civil
Law Notaries of Florida. He is extremely interested in the research and
writing project.

Please join me in welcoming the new members.

4. I have communicated with our friend from north of the border, Wayne
Braid, who has an update of the notarial filing system in British Columbia.
I hope Wayne can join us and provide a report.

I look forward to talking with each of you at our next teleconference. Best
regards.


John Messing