Legislative Updates

The Utah legislature has recently amended its mortgage loan originator licensing laws to allow temporary authority, the law setting recording fees; the law regarding notices filed with the State Construction Registry (“Registry”); the laws allowing remote notarization and liability for notarial acts of an employee.  All the laws discussed are effective May 13, 2019. 

UTAH SENATE BILL 140

An individual is temporarily authorized to act as a mortgage loan originator if:

• An entity licensed to transact the business of
  residential mortgage loans employs the individual;
• The individual submits an application for
  licensure as a mortgage loan originator;
• The individual demonstrates that the individual:
  • Is registered as a mortgage loan originator with
    a depository institution and was registered in the nationwide database as a
    mortgage loan originator during the one-year period before the day on which the
    individual submitted the application; or
  • Was licensed as a mortgage loan originator in
    another state during the 30-day period before the day on which the individual
    submitted the application; and
• The individual has not in any governmental
  jurisdiction:
  • Had an application for licensure as a mortgage
    loan originator denied;
  • Had a mortgage loan originator license revoked
    or suspended;
  • Been subject to, or served with, a cease and
    desist order in connection with a residential mortgage loan transaction; or
  • Been convicted of, pled guilty to, pled no
    contest to, or resolved by a plea in abeyance agreement, a crime that would
    preclude the individual from licensure as a residential mortgage loan
    originator, as provided by rule.

Temporary authorization for an individual who meets the requirements:

• Begins the day on which the individual submits
  an application; and
• Ends the day on which any of the following
  occurs:
  • The individual withdraws their application for
    licensure;
  • The application for licensure is denied;
  • The application is granted; or
  • 120 days pass after the day on which the
    individual submits an application for registration in the nationwide database.

An individual with temporary authorization or a person employing an individual with temporary authorization are subject to the same requirements as if the individual was licensed in Utah as a mortgage loan originator

UTAH HOUSE BILL 247

The recording fee for a standard instrument is now $40 (previously $10).  A county recorder may not charge more than one recording fee for each instrument, regardless of whether the instrument bears multiple descriptive titles or includes one or more attachments as part of the instrument. 

In addition, each county must accept and provide for electronic recording of instruments by January 1, 2022.

UTAH HOUSE BILL 395

A property owner may file with the State Construction Registry (“Registry”) a notice of intent to finance which must state:

• the anticipated date on which financing will
  occur;
• the anticipated lender's name, address, and
  telephone number;
• the name of the trustor on the trust deed
  securing the anticipated loan;
• the tax parcel identification number of each
  parcel included in the project property; and
• the name of the county in which the project
  property is located.

If an owner chooses to file a notice of intent to finance, it must be filed no less than 14 days before the date on which the financing is anticipated to occur.  If the financing does not occur within 30 days after the anticipated date specified in the notice of intent to finance, the notice of intent to finance will automatically have no effect and must be removed from the Registry.

After a notice of intent to finance is filed on a project property, each subcontractor that has filed a preliminary notice pertaining to the project property may file with the Registry a final lien waiver.  The final lien waiver may be filed on the Registry even if no notice of intent to finance was filed on the registry.

UTAH HOUSE BILL 408

The Utah legislature recently amended its laws to create liability for an employer of a notary public in certain cases.  Employers are now liable for damages proximately caused by an employee notary’s misconduct in performing a notarization if the notary public was acting within the course and scope of the notary public’s employment and the employer had knowledge of, consented to, or permitted the misconduct.

UTAH HOUSE BILL 52

The Notaries Public Reform Act has been amended to allow notarizations to be performed remotely.

“Electronic recording” means the audio and video recording of a remote notarization.

“Electronic seal” means an electronic version of the notarial seal that a remote notary may attach to a notarial certificate to complete a remote notarization.

“In the presence of the notary” means that an individual:

• Is physically present with the notary in close
  enough proximity to see and hear the notary; or
• Communicates with a remote notary by means of an
  electronic device or process that allows the individual and remote notary to
  communicate with one another simultaneously by sight and sound and complies
  with all applicable rules.

For a remote notarization only, a third party’s affirmation of an individual’s identity by means of the following will provide satisfactory evidence of identity:

• Dynamic knowledge-based authentication, which
  may include requiring the individual to answer questions about the individual’s
  personal information obtained from public or proprietary data sources; or
• Analysis of the individual’s biometric data,
  which may include facial recognition, voiceprint analysis, or fingerprint
  analysis.

A notary must obtain a remote notary certification in order to perform remote notarizations.  A remote notary who receives a remote notary certification may perform a remote notarization if the remote notary is physically located in Utah.

A remote notary that performs a remote notarization for an individual that is not personally known to the notary must, at the time the remote notary performs the remote notarization, establish satisfactory evidence of identity for the individual by:

• Communicating with the individual using an
  electronic device or process that allows the individual and remote notary to
  communicate with one another simultaneously by sight and sound and complies
  with all rules.
• Requiring the individual to transmit to the
  remote notary an image of a valid personal identification (such as photograph,
  signature and physical description issued by the federal government or a state
  government) or passport that is of sufficient quality for the remote notary to
  establish satisfactory evidence of identity.

A remote notary must:

• Create an audio and video recording of the
  performance of each remote notarization and store the recording as required;
• Take reasonable steps, consistent with industry
  standards, to ensure that any non-public data transmitted or stored in
  connection with a remote notarization performed by the remote notary is secure
  from unauthorized interception or disclosure;
• Include a statement in the notarial certificate
  that the remote notary performed the notarization remotely;
• Keep a secure electronic journal, containing
  specified information, of each remote notarization the notary performs; and
• Attach the remote notary’s electronic signature
  and electronic seal to an electronic notarial certificate when performing a
  remote notarization in a manner that makes evidence any subsequent change or
  modification to:
  • The notarial certificate; or
  • Any electronic record, that is a part of the
    notarization, to which the notarial certificate is attached.

A lawfully performed remote notarization satisfies any provision of state law that requires an individual to personally appear before, or be in the presence of, a notary at the time the notary performs a notarial act.