ATG COVID-19 Update # 21: Underwriting Guidelines for Notarizing Documents under Illinois Executive Orders

EDITOR'S NOTE: For all ATG updates related to this topic, see COVID-19 Updates.

Update – July 2, 2020: The Governor signed legislation, Public Act 101-640, that, among other things, temporarily codifies the provisions of the Executive Orders described in this article in a new Section 95-20 to The Electronic Commerce Security Act, 5 ILCS 175/95-20 and incorporates by reference the Secretary of State's Requirements. The new statutory section states that its provisions are effective as of March 26, 2020, and will end 30 days after expiration of the Governor's emergency declaration regarding COVID-19. All the provisions described below are consistent with the new statutory section and ATG's Underwriting Guidelines remain unchanged and in effect during the period that the statutory section remains in effect.

ATG Agents in All Illinois Counties

On March 26, 2020, Governor Pritzker issued COVID-19 Executive Order No. 12, which is Executive Order 2020-14 (Order), which was amended by COVID-19 Executive Order No. 16 (Executive Order 2020-18) on April 1, 2020. The Order authorizes Illinois Notaries Public to notarize documents via two-way audio-video communication during the pendency of the Gubernatorial Disaster Proclamation related to the COVID-19 outbreak, currently through April 30, 2020.

Thus, the Order relates not to digital signatures and digital notaries, such as are used in Remote Online Notarization transactions, but rather to a party signing a paper document, under the observation of an Illinois notary through two-way audio-video communication, and the notary later notarizing the same paper document in the usual way, using the notary's stamp. The Order requires the Notary Public (notary) to be an Illinois-licensed notary physically located in Illinois and otherwise follow rules promulgated by the Secretary of State's office. The Secretary of State's Requirements (SOS Requirements) provide further guidance and definitions.

ATG Underwriting Guidelines

ATG will insure documents notarized using two-way audio-video communication (video conference) pursuant to the Order and Requirements (Order), provided all the following underwriting guidelines are met; for purposes of this discussion, we assume the Closer is the notary and we refer only to Closer in the underwriting guidelines, below:

Guidelines for before the video conference:

  1. Closer sets up the video conference, which will be recorded and retained.
    1. If ATG is the Settlement Agent: For transactions where ATG is the settlement agent, the Closer will set up the video conference using Microsoft Teams® Business (Teams).
    2. If the ATG Agent is the Settlement Agent: For transactions where the ATG agent is the settlement agent, the Closer must set up the video conference one of two ways:
      1. ATG-provided conference application, ATG GO Video Conferencing Powered by Zoom; or
      2. ATG agent’s own license for Microsoft Teams Business. (If using the latter, please follow ATG's Microsoft Teams® Business User Guide.) 
  2. Notary/Closer and all signors must be located in Illinois.
  3. Signors must be U.S. citizens and present either a valid driver's license or a state identification card.
  4. If notarizing signatures on a mortgage, the Closer must secure confirmation that the lender approves the video conference in advance in writing as the method of notarizing the signatures on the mortgage. Written authorization may be included in loan closing instructions or by separate email.
  5. Closer provides the documents to be signed and notarized during the video conference to the signor in advance of the video conference, either by secure email, fax, Federal Express, UPS, USPS mail, or courier. Instruct the signor NOT to sign the documents until the video conference. Include a prepaid overnight mail label so the signor can return the signed documents after the video conference for delivery the next day.
  6. Closer makes sure the signor understands the documents to be signed and has an opportunity to review them with their lawyer before the video conference, or that the lawyer is included in the video conference invitation.

Guidelines for during the video conference:

  1. Closer starts the recording of the video conference.
  2. Closer confirms the video resolution is clear enough so the Closer can examine IDs and every page of the documents to be signed.
  3. Closer validates the signor's identity by at least TWO methods, as follows:
    1. U.S. state-issued driver's license or other state-issued identification shown to the camera so the notary can see both the front and the back of the identification; and
    2. At least one of the following:
      1. Closer can text a random six-digit number (create with to a known safe phone number for the signor; then, the signor reads the number back during the video conference. A safe phone number is one that you have confirmed prior to closing by a communication other than by email. Note the file with the 6-digit number and phone number texted; or
      2. Closer can ask the signor a question during the video conference regarding personal data contained in the loan file or attorney's file that only the signor would know. Please do not use a social security number to verify the identity of the signor; or
      3. For a borrower in a refinance transaction, or a seller in a sale transaction, during the video conference, the signor can show the Closer a copy of a utility bill dated within the last 30 days for the signor's known address, in the name of the signor; or
      4. Closer may use a third-party identification service and save the proof from that service in the file.
  4. Signor identifies each document being signed and holds it up to the camera for the Closer's inspection.
  5. Signor reviews and initials every page of every signed document and shows each page to the camera for the Closer's inspection.
  6. Signor dates each document with the date of the video conference, and then signs each document.
  7. Closer stops the recording at the end of the video conference.

Guidelines for after the video conference:

  1. Signor returns all pages of all the documents to the notary by overnight delivery.
  2. Closer notarizes signatures and signing and uses the Illinois Notary Acknowledgement Under Gubernatorial Executive Orders 2020-14 and 2020-18, ATG Form 4262. Use the date of the video conference for the date of the notary certificate. Some lenders may not permit the mortgage to include any change to the notary certificate on the lender's mortgage. If that occurs, use the notary certificate the lender provides in its mortgage if you obtain a completed Certification of Acknowledgement by Audio-Visual Means, ATG Form 4261, for your title file.
  3. Closer records documents in the usual way (process varies by region).
  4. Settlement agent retains the recording for a period of three years.
    1. If ATG is the settlement agent and conducted the video conference using Microsoft Teams Business, the Closer will confirm that the video conference is properly recorded and saved and that ATG will retain the recording for a period of three years.
    2. If the ATG agent is the settlement agent and conducted the video conference, the ATG agent must download a copy of the video conference and save it for a period of three years.

IMPORTANT NOTE: The underwriting guidelines set forth here (ATG COVID-19 Update #21) are valid only so long as the Order continues to be effective, as extended by the Governor. ATG agents may no longer rely on these underwriting guidelines after the expiration of the Order.

Questions? Contact an Underwriter. As always, we thank you for your business and continued support. We value your feedback and look forward to hearing from you.

Posted on: Wed, 04/15/2020 - 3:13pm