The Manila Session at Midnight
Kevin is a Maryland notary who registered as a remote online notary and uses Vendor B, which appears on the Secretary of State's approved-vendor list. At 11:15 p.m. Eastern on a Tuesday, he performs a remote acknowledgment for Ms. Ortiz, who is in Manila, Philippines, for a Maryland deed of trust. The platform's identity proofing asks Ms. Ortiz to upload her Philippine passport, which expired 14 months earlier; the system's knowledge-based questions are passed. Kevin notes in the session chat that the ID is expired but proceeds. He does not make a journal entry because, he says, "the audio-video recording is the journal." The vendor's contract says recordings are retained for three years. Kevin charges $25.
1. Was the remote notarial act properly performed? Address identity proofing, the journal, and the recording retention.
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No. Identity proofing failed because the passport was expired 14 months earlier; a current, unexpired identification document is required, and passing knowledge-based questions does not substitute for valid credential analysis. The journal is also deficient: a remote notarial act must be recorded in the notary's journal just like an in-person act, and the audio-video recording is evidence of the session, not a replacement for the journal. The vendor's three-year retention is inadequate because the recording must be retained for the required period, which is ten years in Maryland. Using an approved vendor is necessary but not sufficient; the notary remains responsible for the statutory elements. The act should not have been completed on that identification.
2. What must Kevin do now about the recording, the journal, and the deed of trust?
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He should create a journal entry for the session now, noting the date, time, act type, signer, the expired passport, and the fee, and he should not pretend the identification was valid. He should obtain written confirmation from Vendor B that the recording will be retained for ten years or transfer the recording to a storage arrangement that meets the requirement. Because the identity defect cannot be cured after the fact, the deed of trust should be re-notarized in a new session using a current ID, with proper credential analysis and a complete journal entry. He should also review his other remote sessions to see whether the same identification problem occurred.
3. Is the $25 fee permissible, and what should Kevin tell the title company about the first session?
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Yes, $25 is within Maryland's fee limit for a remote notarial act, which is capped at $25 per act. The fee is not the problem; the identification and recordkeeping are. Kevin should tell the title company candidly that the first session used an expired passport, that the recording has been preserved, and that a new session will be conducted with valid identification. Concealing the defect would expose him to discipline and could cloud the deed of trust. He should provide the new journal entry and the recording reference for the replacement session, and he should not bill twice for the same act merely because the first attempt was defective.