Posted By: INOH

e-sign - 09/23/19 05:54 PM

….Compliance Risk? What if one spouse signs for the other????
Posted By: rlcarey

Re: e-sign - 09/23/19 06:04 PM

Are you talking about disclosures or the electronic signing of the actual loan agreement?
Posted By: INOH

Re: e-sign - 09/23/19 06:10 PM

Posted By: Richard Insley

Re: e-sign - 09/24/19 12:32 AM

Allowing this to happen is always a bad idea, but your risk will vary by document/product/regulation.

If you're talking about the promises made in contracts (including notes and service agreements of all kinds), state law (especially case law) will prevail. Having no signature or a forged signature does not matter UNTIL you have to go to court and sue the customer for nonperformance of one or more of those contractual obligations. With the chips down, count on the non-signing spouse to argue "I never signed that and can't be held to those terms." If you can't prove that, in fact, s/he DID "agree" (by signature,"X", or electronic "X"), you lose. If you have reason to suspect the objecting spouse's signature was forged (manually or electronically), you will lose AND the judge will probably chastise you for wasting the court's time with a claim based on a forged signature.

If the signature (manual or electronic) is obtained to acknowledge receipt of documents, then your risk stems from the law, regulation, rule, contract, or whatever required you to deliver the documents in the first place. If the law/reg/rule specifically required you to obtain a signed receipt, then failure to prove you have a valid signature exposes you to whatever penalties specified for violations of that particular provision. If there's no requirement to obtain a receipt, but you want one anyway, then your exposure is indirect for unsigned or forged receipts. Customer says "I didn't get it." You say "we gave it to you." Court, regulator, investor, etc. will need additional evidence in order to side with the big, bad bank. If a forged signature is your whole game plan, the customer didn't receive the document and appropriate penalties will apply.
Posted By: Andy_Z

Re: e-sign - 09/27/19 09:35 PM

On an E-SIGN webinar I once asked if a couple shared an email and the email was integral as to the signing process, was that an issue. The attorney's response was similar to the above. It casts a shadow of doubt in court, it would be a poor practice, and why would the bank want to do this. Those are key issues and the takeaway is, prevent it now rather than try and defend it later.

The risk - this person can claim they were never involved in the transaction, no disclosures, no obligations, or worse yet maybe just the no disclosures part and now they want the bank penalized and they want compensation for the harm done them.
Posted By: INOH

Re: e-sign - 09/30/19 03:01 AM

I didn't mean that we would allow it... I meant, what if it did happened and the bank didn't realize the signature had been forged.
Posted By: Richard Insley

Re: e-sign - 09/30/19 04:33 AM

My answers don't change--but discovering a single instance is A LOT less frightening than finding a pattern & practice.
Posted By: Andy_Z

Re: e-sign - 10/03/19 07:49 PM

Getting the proof would be difficult, I would believe. But it's the same as "he" picks up a contract and brings it back signed by "he" and "she." That used to be common, essentially its the same as mailing a Note to a long distance borrowers. Now, "she" later says "she" never signed anything. What would you do?

I only had it happen once, dad and Jr. were regular borrowers and one time Jr picked up a Note for daddy to sign. Many months later Jr. went bankrupt and dad never heard of that loan. I picked up the loan when I had to go to the 341 hearing. After a few short comments with the debtors attorney in the hallway they agreed to pay us outside of the plan as proposed and we came out whole. So in my case it didn't go further.