At both the federal and state level, remote online notarization (RON) appears to be gaining momentum. But at the same time, the practice is also being scaled back as various states’ pandemic-related states of emergencies come to an end. We break down all the action here.

Federal RON action:

In mid-June, the SECURE Notarization Act — which would allow the use of RON nationwide — was re-introduced in the U.S. House, a month after being re-introduced in the Senate. The bipartisan bill was immediately hailed by a variety of industry groups, including the American Land Title Association (ALTA), Mortgage Bankers Association (MBA), and more.

At least one organization opposes the bill: the California League of Independent Notaries. CLIN is the most vocal opposition in California, a state that itself presented the most vocal opposition to the SECURE Act when it was first introduced last year at the start of the pandemic. That bill never made it out of committee.

The current Senate bill has been referred to the Judiciary Committee, while the House version has been referred to two committees: Judiciary, and Energy and Commerce. 

State RON action:

At least 38 states have permanent laws allowing remote notarization; 36 of them allow RON, while the remaining two only permit remote ink-signed notarization (RIN), in which notarization takes place over video but only with paper documents and wet signatures. New Jersey and Illinois became the latest states to enact RON, with bills signed just last week (however, some state laws, including theirs, have yet to take effect).

Meanwhile, states are beginning to end their pandemic-related states of emergencies, meaning state leaders have to decide whether to extend or end their temporary remote notarization orders.

New York ended its disaster declaration; almost immediately the New York Department of State updated its website to state that notaries can no longer perform their services remotely. Mississippi’s state of emergency is set to end Aug. 15, prompting the Land Title Association of Mississippi to post this tongue-in-cheek headline: “Bye Bye RON/RIN — We hardly knew ye.” 

Other states are opting to extend their temporary laws. Georgia officially ended its public health state of emergency on June 30, but Gov. Brian Kemp (R) signed an executive order to allow remote notarization to continue. Maine recently passed a law to allow remote notarizations until Jan. 1, 2023, while also laying the groundwork for permanent legislation: The new law directs the Secretary of State to conduct a study and develop recommendations for a permanent remote notary law.

What about RIN?

RIN gained popularity during the pandemic as a host of states allowed it on an emergency basis. Unlike RON, it hasn’t been seen as a permanent solution. Fannie Mae’s early-pandemic RIN guidance noted, “We do not expect these temporary governors’ executive orders and authorizations related to RIN to extend beyond the COVID-19 national emergency.”

However, in June, Fannie Mae updated its selling guide to announce minimum standards for RIN for loans issued on or after July 1, 2021. A few days later, Freddie Mac followed suit, while also clarifying that its RIN guidance requires multifactor authentication. The GSEs’ moves appear to acknowledge that RIN may be more permanent than initially expected.

Before the pandemic, two states — South Dakota and Montana — had permanent laws allowing RIN. Now another two states have joined them: Wyoming, which passed a law in February to allow both RON and RIN, and Alabama, which enacted a RIN-only law in April.

And don’t forget IPEN…

RON and RIN have received the bulk of the eNotary attention, but in-person eNotarization (IPEN) has also increased, as the states that passed permanent RON laws usually automatically allow IPEN as well.

However, over the last year another two states enacted permanent IPEN-only laws: Mississippi and South Carolina. The latter is notable because South Carolina was one of just two states (along with California) that, at the height of the pandemic, wouldn’t even pass a temporary order to allow remote notarization.

Mississippi and South Carolina borrowers may not be able to do a RON closing yet — but with IPEN they can now conduct a 100% paperless eClosing.

Related Content:

• Senators reintroduce bill to allow remote online notarizations nationwide (5/18/21)
• Should longtime RON-holdout California allow it? Secretary of State considers it (5/6/21)
• RON update: First new remote online notarization law of 2021 passes (2/12/2021)

The number of title and settlement companies that offer eClosings increased 228% in 2020, according to ALTA’s 2021 Digital Closing Survey of 300 title professionals.

The 2019 version of the survey showed that before the pandemic only 14% of companies offered digital closings. In 2020, amid the COVID-19 crisis and a raft of stay-at-home orders, that figure shot up to 46%.

“Since the onset of the pandemic, title and settlement professionals rapidly adapted their processes to meet the needs of their customers and to continue facilitating safe and secure closings,” said Diane Tomb, ALTA’s chief executive officer.

She added that one of the title industry’s most important tools has been remote online notarization (RON), adoption of which rose 547% in 2020, according to an earlier ALTA survey of vendors.

The 2021 Digital Closing Survey found that 35% of title and settlement companies offer RON technology, while more than 5% of transactions were closed using some version of RON.

“RON is a convenient alternative to traditional in-person notarization for all consumers, but it is especially beneficial to consumers who are unable to easily travel to access notarial services, serve in the military overseas or have time constraints,” Tomb said.

Additionally, 64% of survey respondents expect RON closings to increase in 2021. The factors most likely to affect a company’s timeline to implement RON technology are lender and consumer requests, access to RON providers, and changes to state laws.

At least 36 states have permanent laws on the books to allow some form of remote notarization, and 34 of those states permit RON (the other two states, Alabama and South Dakota, only allow remote ink-signed notarization, RIN, a lower-tech form of virtual notarization that doesn’t use electronic signatures).

Additionally, the federal Securing and Enabling Commerce Using Remote and Electronic (SECURE) Notarization Act has been introduced in both the U.S. Senate and House. It would allow “immediate nationwide use” of RON nationwide.

While RON adoption has increased significantly, paper still comprises the bulk of the mortgage business. Only about 5% of ALTA survey respondents reported that their closings were fully digital, while 85% said all their closings were paper-based.

Additionally, getting set up for RON can be expensive. The average cost of implementing RON, including software, equipment and training, was almost $30,000 per office, according to the survey.

Those who implemented RON, however, reaped some key benefits: 52% of respondents said closing times were lower due to the number of documents that could be signed ahead of time, and 43% reported cost savings.

RON was used most often in transactions involving sellers only (40%), followed by cash deals (23%), refinances (17%) and purchases (14%).

Related Content:

• Senators reintroduce bill to allow remote online notarizations nationwide (5/18/21)
• Should longtime RON-holdout California allow it? Secretary of State considers it (5/6/21)
• RON update: First new remote online notarization law of 2021 passes (2/12/2021)

Mortgage servicers committed several Regulation X violations in 2020, according to a recent report by the Consumer Financial Protection Bureau (CFPB).

“Today’s release of Supervisory Highlights reinforces the importance of the Bureau’s supervisory work, including during the COVID-19 pandemic, to find and correct systemic problems that hurt consumers,” said CFPB Acting Director Dave Uejio.

The report, which was released June 29, didn’t name any lenders/servicers or levy any penalties, although prior CFPB supervisory findings led to more than $124 million in consumer remediation and civil money penalties in 2020.

The CFPB report covered several areas under its jurisdiction — including debt collection, payday lending and more — as well as mortgage origination, servicing and fair lending. The Bureau highlighted mortgage foreclosure issues in particular.

CFPB examiners found that several mortgage servicers violated Regulation X, which requires lenders to provide borrowers with timely disclosures on the nature and costs of the real estate settlement process.

One key violation was that some servicers made the first notice or filing for foreclosure when it was still prohibited. In some instances, servicers filed for foreclosure before they had evaluated borrowers’ appeals, and in others they engaged in “a deceptive practice” when they informed borrowers that they wouldn’t initiate a foreclosure action until a specific date, only to do so before that date.

“The inaccurate representations regarding the day foreclosure action would be initiated were likely to mislead borrowers into believing that they had more time until foreclosure than they actually did,” the report stated.

CFPB examiners also found some lenders ran afoul of Regulation Z by compensating loan originators differently based on whether the loan was a Housing Finance Agency (HFA) loan or construction loan.

Additionally, several lenders reported inaccurate data, putting them in violation of the Home Mortgage Disclosure Act (HMDA) and Regulation C, which requires financial institutions to collect and report loan application data.

The American Land Title Association (ALTA) also noted that the report found some lenders are in violation of Regulation Z due to inaccurately disclosing fees for lender’s title insurance on the TILA-RESPA Integrated Disclosures.

For more information, read the report.

Related Content:

• FHFA director replaced following Supreme Court decision (7/6/2021)
• GSE guidance for revised General QM definition (6/7/2021)
• CFPB rescinds 7 pandemic-related policy statements (4/7/2021)

On June 23, 2021, the U.S. Supreme Court issued a 7-2 decision in Collins v. Yellen, which held that the structure of the Federal Housing Finance Agency (FHFA) was unconstitutional in that Congress overstepped its authority by placing a single director in charge of the agency that could only be removed for cause. 

Under the Housing and Economic Recovery Act of 2008, Congress placed Fannie Mae and Freddie Mac into conservatorship overseen by a new federal agency, the FHFA. The agency was created with a single director, who is appointed by the president and confirmed by the Senate to serve a five-year term. Once appointed, the head of the agency could only be removed by a president for cause, which the decision states is not the same as “at will.” The Supreme Court ruled that the restriction on the president’s ability to remove the agency director violates the Constitution’s basic principle of separation of powers. 

Writing for the majority, Justice Samuel Alito states that the agency’s leadership structure “clashes with constitutional structure” by “concentrating power in a unilateral actor insulated from Presidential control.” Justice Alito also referred to the Supreme Court decision in the last term which struck down similar restrictions on the president’s ability to remove the head of the Consumer Financial Protection Bureau (CFPB), stating that “the Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.”

The Supreme Court decision also ruled against a group of shareholders on a statutory claim that the FHFA exceeded its authority by agreeing to a new variable dividend formula referred to as the “net worth sweep.” The court is allowing the shareholders to go back to the lower courts to agree whether the unconstitutional restriction on removal of the director led to compensable harm.

Following the decision, the White House released a statement advising that the Biden administration would replace FHFA Director Mark Calabria, a Trump appointee, with a director “who reflects the Administration’s values.” Calabria announced his resignation, and within hours, Sandra L. Thompson was appointed as Acting Director, effective immediately. Thompson has been at the FHFA since 2013, serving as the Deputy Director of the Division of Housing Mission Goals, and overseeing housing and regulatory policy, capital policy, financial analysis, and fair lending activities. Prior to the FHFA, Thompson worked for the Federal Deposit Insurance Corporation for 23 years in various leadership roles. In a statement released by the FHFA, Thompson said, “There is a widespread lack of affordable housing and access to credit, especially in communities of color. It is FHFA’s duty through our regulated entities to ensure that all Americans have equal access to safe, decent, and affordable housing.”

DocMagic will continue to monitor agency announcements for any further developments.

Related Content:

• GSE guidance for revised General QM definition (6/7/2021)
• GSEs announce plans to limit purchases to loans meeting revised General QM rule (5/11/2021)
• CFPB rescinds 7 pandemic-related policy statements (4/7/2021)

Some lenders pay an intermediary, such as a law firm, processing center or fulfillment company, to generate their mortgage documents and conduct print fulfillment services.

However, lenders can cut out the middleman and draw their own docs — at the exact same quality and at a fraction of the price — by using DocMagic’s document generation solution for initial disclosures and closing documents.

“I think some lenders are hesitant to take on that doc gen burden,” said Aimee Eyre, a sales executive at DocMagic. “But drawing their own docs is easier than they think, and it would save them a lot of money.”

Another reason that lenders use a fulfillment company is because many lack an in-house compliance expert and the intermediary companies offer compliance checks as part of their service — but so does DocMagic’s doc gen solution, which includes an automated compliance system designed to catch any errors and issues before documents are processed. 

In fact, “a lot of fulfillment companies that use DocMagic advertise that they’ll handle the compliance piece for the lender, but they’re actually using DocMagic’s compliance system,” said account executive Shandi Smith.

Smith and Eyre often get calls from lenders who realize their fulfillment company is using DocMagic for document generation.

“They say, ‘I saw your logo in the bottom corner of the box and wanted to talk to you directly,’” Eyre said. 

To reiterate, there are a host of advantages for lenders who draw their own docs, including:

• Money: What DocMagic’s document generation clients pay to draw a doc gen set is a fraction of what they have to pay to the intermediary companies to do it for them.
• Time: When lenders use DocMagic, it takes less than 10 seconds to generate a doc set. When lenders go through an intermediary, the process is out of their hands; they have to get in line and are at the mercy of whatever time frame the fulfillment company sets, which could be as much as two to three days. By using DocMagic’s document generation solution, lenders have the power to pull documents on their schedule, putting them firmly in control.
• Compliance: DocMagic’s document generation solution comes with built-in compliance checks, supplied by an expert team that’s constantly monitoring the regulatory landscape to ensure the document library is evergreen. As Smith noted, in many cases, lenders are already getting DocMagic’s compliance service if their fulfillment company is also using DocMagic.
• Ease: Some lenders worry that generating their own documents is a complicated process. That couldn’t be further from the truth. “As soon as you show lenders a demo, they realize that it’s not as hard as they thought it would be,” Eyre said. Smith added that after lenders are trained, they become extremely proficient at pulling their own docs.

DocMagic’s Sales Team can be reached at sales@docmagic.com.

Related Content:

• Did You Know: You can get all your eClosing needs met by one vendor? (6/16/2021)
• Ask the eClosing Team: What steps should lenders take to get set up for eClosing? (6/2/2021)
• Ask the eClosing Team: What do lenders need to get set up for eNotes? (3/4/2021)

Lenders are finding there are a host of upsides to eClosings — and their post-closing departments are reaping some of the main benefits.  

In a series of recent webinars, DocMagic clients reveal three key reasons that their post-closing departments prefer digital closings, and especially eNotes (electronic promissory notes):

1. No more time wasted hunting down missing signatures or initials.

This is actually a benefit with any eClosing, including basic eSign Hybrids that produce paper promissory notes.

“The post-closing department, previous to eClosings, had to scrub every document for accurate signatures. For some reason, borrowers just simply could not find the exact same name on every document,” said Chrissy Brown, COO at Atlantic Bay Mortgage Group, which has branches in nine states. “Did they miss a date? Do we have to go back and get something re-dated? Anytime you replace that human element with an electronic or technological advancement, you definitely increase your accuracy.”

Watch the webinar: True Stories: Hybrid, eNote and RON implementation

Beth Eller, the vice president of mortgage services at North Carolina-based Truliant Federal Credit Union, agrees. “The efficacy of it from an operational standpoint is tremendous. There is no missed signature. There is no missed initial. You can't move forward in an electronic closing without hitting every single one,” she said. “So that post-closing follow-up becomes really a non-event as far as the closing package itself goes.”

2. Speed and simplicity: It’s faster and easier to deliver eNotes where they need to go.

A common refrain among the clients was how quick and simple it is after the closing to transfer the eNote. With the click of a few buttons, the eNote is immediately registered with the MERS eRegistry and then sent via instantaneous eDelivery to the eVaults of various participants (whether the lender’s own or downstream to investors and servicers).

Once the eNote is signed, said Stephanie Zinsmeister, senior vice president of operations at AnnieMac Home Mortgage, “Boom, it's in MERS and it's ready to be sold instantaneously without having to transfer it [among] five or six different hands and risk losing that note.”

Jeff Reeves, co-founder and CTO of Canopy Mortgage, which operates in more than half the states, agrees: “It’s this simple: literally when that package is signed and you have an eNote, I go to DocMagic’s console, I hit the button to transfer Control and Location to the warehouse bank, and then they go into their system and they hit the button to send it to Fannie or to PennyMac or to whoever’s going to buy that loan from us.”

Watch the webinar: Managing a successful eClosing initiative

Truliant’s Eller noted that the immediate delivery of the eNote easily shaves six to eight days off the servicing and backend process. Loans can be sold immediately. “It is a better delivery method than paper, any way you cut it,” she said.

Additionally, there’s less of the traditional back-and-forth that happens with a paper note.

“You have one place that you go to grab that package,” Zinsmeister said. “You don't have to wait for paper to come in. You don't have to wait for a title company to email it to you. Post-close, I can just go in there and grab that closed loan package.”

This speed and ease of delivery is why Atlantic Bay’s Brown wasn’t too concerned when in August 2020, Fannie Mae and Freddie Mac suddenly instituted a new Adverse Market Refinance Fee that added 50 basis points to most mortgage refinances.

“Luckily, that [fee] got extended, but in that moment, it was amazing to have that eNote capability … we were able to deliver a lot longer into the process than some of our competitors that didn’t have that [eNote] process, because we’re able to sell instantaneously,” she said.

3. Paper notes can be lost, while eNotes are impossible to lose or destroy.

Let’s be honest: Sometimes FedEx or UPS mess up.

As the lenders noted, with just a few clicks, eNotes are instantly sent where they need to go. With paper notes, however, lenders have to rely on a shipping company such as FedEx or UPS to deliver the note to the correct custodian. But this leaves room for human error, and many, many lenders know what it’s like to have the delivery service lose a note.

In April, UPS lost one of Canopy Mortgage’s paper notes. Usually in such a scenario, the borrower is willing to re-sign the note. Not in this case.

“This person was a real estate attorney and made a huge stink about the fact that he didn’t want to sign another note because it’d be a duplicate, and somehow, we were going to shaft him because we have two notes. ‘What if we found the other one?’ and on and on,” Reeves said. The borrower forced Canopy to draw up an indemnity document with their attorneys.

Despite that, the borrower still refused to re-sign the note. “So here I have this $400,000 note that, really, I can’t do anything with, because UPS lost it,” Reeves said. “If that shouldn’t scare you into wanting to do eNotes, then I don’t know what will.”

Related Content:

• Atlantic Bay surpasses 10,000 eClosings using DocMagic's Total eClose (5/25/2021)
• DocMagic client Truliant transfers FHLBank Atlanta's first eNote (4/15/2021)
• Ask the eClosing Team: What do lenders need to get set up for eNotes? (3/4/2021)