An Open Letter to the Electronic Recordings Commission and Michigan Dept of Technology, Management & Budget
- Heather MacGraine OnMyWay Mobile Notary
- Apr 9
- 3 min read
Subject: Urgent Compliance Concern: 2020 Electronic Recording Standards & MCL 450.837 / 450.839 / 450.841 (UETA)
Dear DTMB Leadership,
Michigan's 2020 electronic recording standards contain requirements that conflict with state law and which, in practice, cannot be honestly fulfilled. As an active Remote Online Notary in Michigan and a board member of the Michigan Notary Association, this issue affects my work directly. My position on the board affords me a broad view of how it is affecting notaries across the state, though I write here in my personal capacity and not on behalf of the Association.
The standards currently require that electronically signed documents submitted for recording be accompanied by a wet-ink affidavit from a notary session participant, certifying that the document is a true copy of the notarized record. This requirement is problematic on both legal and practical grounds.
On the legal side, demanding a wet ink signature conflicts with the Uniform Electronic Transactions Act, Act 305 of 2000, MCL 450.837 and MCL 450.841, which grant electronic signatures the same legal validity as handwritten ones. Conditioning the recording of an electronically signed document on a supplemental affidavit also imposes a burden with no paper equivalent which is likewise contrary to the Act.
On the practical side, the requirement is simply impossible to fulfill honestly. The notary or session participant is not the party who files the document with the recorder. Having no presence at the point of submission, there is no way to confirm that what is ultimately filed matches what was notarized. This places affiants in an untenable position: either attest to something they cannot verify, or refuse to sign and obstruct an otherwise lawful transaction. Neither outcome serves the public interest, and the affidavit provides no meaningful integrity guarantee in either case.
In lieu of the affidavit requirement, I would propose that electronically signed documents submitted for recording be accompanied by the audit trail generated during the notary session (sometimes referred to as a session verification or signature log). This approach is not only more practical, it is already contemplated by statute. MCL 450.839 provides that the attribution of an electronic record or signature to a person may be established by "showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable." The audit trail is precisely such a security procedure: it is generated contemporaneously by the notary platform, it is tamper-evident, and it is something the notary can genuinely vouch for as a product of the session they conducted. It provides the authenticity assurance the current standards are attempting to achieve through a mechanism that is both legally sound and practically workable.
To that end, I respectfully request:
1. An expedient review and revision of the 2020 standards to bring them into compliance with MCL 450.837, MCL 450.839, and MCL 450.841, including replacing the affidavit requirement with a requirement that electronically signed documents be accompanied by the session audit trail;
2. That a copy of any revised policy decision be sent directly to me upon finalization. As there is no existing notification system for policy changes of this nature, I would welcome the opportunity to help facilitate communication of the updated standards to the notary community when they are released; and
3. That the revised standards be formally communicated to all county clerks in Michigan, ensuring consistent and lawful implementation statewide.
I welcome the opportunity to discuss this further and am happy to provide additional context from my experience in the field to support your review.
Thank you for your attention to this matter.
Sincerely,
Heather MacGraine
Board Member, Michigan Notary Association (personal capacity)
Remote Online Notary, State of Michigan
(734)353-1233
