By Rose McCabe LeBreton and Armand E. Samuels 

In response to the public health crisis posed by COVID-19, Governor John Bell Edward issued “Proclamation Number 41 JBE 2020” authorizing remote authentication of an individual’s appearance and signature on a legal document when not in the physical presence of the notary as follows:

1. the individual and the notary can communicate simultaneously by sight and sound through an electronic device process at the time of the notarization; and
2. the notary has reasonably identified the individual and either directly or through an agent (a) creates an audio and visual recording of the performance of the notarization, and (b) retains such recording as a notarial record for at least 10 years from the date of execution unless a law of the state requires a different period of retention, and if any laws of the state govern the content, retention, security, use, effect, and disclosure of such recording and any information contained herein such recording shall be subject thereto.

The individual appearer and the notary must affix their digital signatures to the act in a manner that renders any subsequent change or modification of the remote online notarial act to be evident.

If a state law requires an individual to appear personally before or be in the physical presence of a notary at the time of notarization, that requirement shall be satisfied if the individual and the notary are not in the physical presence of each other but can communicate simultaneously by sight and sound through an electronic device or process at the time of the notarization. During the COVID-19 emergency, the Land Records Division shall not refuse to record a tangible copy of an electronic record on the grounds that it does no bear the original signature of a person if a notary or other officer before whom it was executed certifies that the tangible copy is an accurate copy of the electronic record.

NOTE: this relaxation of the rules does not apply to “Authentic Acts.”  The following instruments must be executed before a notary and two witnesses who ae present with the signatory:

1. testaments;
2. trusts;
3. donations Inter Vivos;
4. matrimonial agreements;
5. acts modifying, waiving or extinguishing an obligation of final support; and
6. sales, mortgages and assignments for executory process.

The enumerated acts are customarily prepared as Authentic Acts;  however, sales, mortgages  and other security instruments can be validly made by Acts under Private Signature.  Though the manner in which the document is executed does not affect validity, it does affect the type of foreclosure process available to a creditor in the event of default. A foreclosure petition based on Authentic Acts will have the benefit of executory process (a quick taking, requiring an order of the court based on the petition and the documents) while acts based on Acts executed under Private Signature will proceed by ordinary process (a regular lawsuit which requires proving the case, obtaining a judgment and then execution of the judgment against the property).

ORLEANS PARISH ALLOWS LIMITED HOURS FOR REGISTRATION

IN THE LAND RECORDS.[2]     

Everything at the Orleans Parish Land Records Division (all act pulling and searching prior to what has been scanned into the computer) is closed to the public. Accordingly, access to the fifth floor (the Map Department and almost all of the original acts from the last 60 years), the fourth floor (pre-computer conveyance and mortgage indices and the majority of the COB and MOB books, recording, indexing, UCCs, and cancellations) and the third floor (the Notarial Archives Research Center which generally has anything recorded prior to 1960) has been denied until further notice.  To ensure access to the Orleans Parish public records, the Clerk of Court and Ex-Officio Recorder, Chelsey Richard Napoleon, has offered free subscriptions to the Remote Access System, a web-based system that provides access to the public records (the “RAS”), including civil records and land records, while existing subscriptions are being extended. In order to print/download images, separate escrow accounts must be funded through the RAS. It’s worth noting that if the act has not been scanned into the RAS, said act is inaccessible.

The Orleans Parish Land Records Division (Mortgage and Conveyance), situated on the fourth floor, remains open from 9:00am to 1:00pm for recordings. The time frame provided for recordings is strictly enforced (emphasis added). Couriers have reported that an NOPD officer is on site to announce the closure of the office and order those in line to exit the office immediately. A locked box has been placed by the door of the Land Records Division where documents can be placed for filing the following day should a courier arrive outside the limited hours of operation; the clerk is processing documents received by mail as well. Orleans Parish has not yet implemented online recording of documents in the land/mortgage records, so it is advised that a courier arrive well before 1:00pm in order to ensure a successful recordation. Waiting until the last minute elevates the risk of being unable to record that day.

The Lugenbuhl Real Estate/Landlord Tenant Issues/Loan Forbearance Task Force are members of the firm’s Commercial Real Estate practice. Learn more about our Real Estate practice here.

The content of this article is not intended to serve as an exhaustive review of the laws and statutes, and it is not intended to provide legal advice. The opinions expressed through this article may not reflect the opinions of the firm, individual attorneys or clients.

 

To learn more about our New Orleans, Louisiana LAW member firm Lugenbuhl, Wheaton, Peck, Rankin & Hubbard visit http://www.lawla.com/.