Understanding the Digital Signature Lawfulness for Banking in the United States

How to eSign a document: digital signature lawfulness for Banking in United States

I have Manny Fitzsimmons I'm your Washington Realtors Legal Hotline lawyer today's topic of discussion is electronic signatures most contracts it seems our sign today using electronic signatures and that's great the electronic signatures are authorized by both state and federal law and there is no problem with the enforceability of a contract based on an electronic signature but we are seeing a few things in the industry that that need your attention first when you are going to send documents to parties for electronic signatures you need to make sure that you have a proper authorization from the parties identifying the email address as to which they want the contract sent for their electronic signature oftentimes we are seeing contracts that a single purchase and sale agreement is sent to one email address even though there are two separate signers now it's entirely possible that two different people are accessing the contract through that email address and both of them are signing properly the purchase and sale agreement it's also possible that one person alone is accessing that email address and signing that contract for both people in other words committing forgery it is not your job to police whether or not clients are committing forgery you can't help or prevent people from committing forgery but you should have documentation in your transaction file showing that you have emailed the document for electronic signature to the email address as identified by if there's more than one party by both parties I'm more than one person in your client party then to all of the people who are individually clients within your party another issue that we're seeing with respect to electronic signatures is brokers apparently not grasping the notion that forgery of an electronic signal is exactly the same thing as forgery of a wet signature which creates both criminal and civil problems for a broker who might do that we are seeing occasions where brokers rather than forwarding a document to the client for electronic signature are affording the document to their own email address and applying the electronic signature for their client as though their client had done it sometimes this is done with the clients permission to say hey go ahead and sign those documents for me it's easier if you just do it sometimes actually it's being done without the clients permission because it's just more efficient in the brokers mind to be able to handle what appears to be a routine signing on a document it's not okay whether it's with the clients permission or without the clients permission if you don't if you're not holding the power of attorney for your client then the clients oral acknowledgement to you go ahead and sign that for me is not sufficient and we've already done a video about the bad practice of a broker holding a power of attorney for a client so we will repeat that lesson here suffice to say it's never a good idea so brokers should not be applying a client's electronic signature to any document and then the final thing I want to talk about with respect to electronic signatures is a rather disturbing letter that we are seeing some banks ask brokers to sign at the closing of a transaction in support of buyers loan here's the language from the contract that's troubling broker identifies that they are the broker managing the electronic contract process and then says quote the purchase and sales contract barring an electronic signature or electronic signatures complies with the standards and requirements of the federal electronic signatures in global and national commerce act and if applicable the uniform electronic transaction act adopted by the state in which the electronic signature is initiated next paragraph the agreement is fully enforceable and legally binding in ance with their turn and then the agreement is duly and properly executed and attested in full compliance with any and all applicable laws and regulations including but not limited to any applicable Fannie Mae Freddie Mac Federal Housing Administration Veterans Administration and or private investor requirements and satisfies all industry accepted standards for electronically signed documents the letter goes on to say that the lending institution is then authorized to rely on the completeness and accuracy of the statement by the Branka and frankly I don't I don't know a real estate broker or for that matter a lawyer who in a garden-variety real estate transaction could make these representations if you are asked to sign a letter like this I encourage you to take a substantial pause before you sign this letter talk to your own lawyer it it's hard to imagine that buyers loan is dependent on you signing this letter you certainly never agreed to sign a letter like this you never certainly represented that you had the capacity to sign a letter like this and it would be my suggestion that you not sign this letter without first consulting your own lawyer as to the significance of you signing a letter like this if you have questions on this topic or any other please send an email to me Legal Hotline at W a realtor org thank you for being a Washington real tours member