Yes Virginia, You Can Prove an Electronic Signature!
Surprisingly, the question of how to prove something was signed electronically arises relatively rarely. In Perry v. Ad Astra Recovery Services, Inc.,
the U.S. District Court for the Eastern District of Missouri tackled the issue, finding that the plaintiff signed a loan agreement based on the defendant's affidavit about the execution process.
Back in the late 1990's I had the privilege of hanging around in the ABA's Business Law Section when the Uniform Electronic Transactions Act (UETA) and the Federal variation, E-SIGN, were being developed. At the time, many of the key players in the emerging electronic and digital signatures movement were active in the Business Law Section and they often use the organization's meetings to explore and discuss ideas - away from the sometimes politically charged atmosphere of NCCUSL meetings. It was a great time to be a fly on the wall.
As a bankruptcy professional, the one thing that struck me about electronic signatures was the proof problem. In other words, it was all well and good to have someone "sign" something "electronically," but when court proceedings came into the picture proving that someone had signed something was clearly going to be be more complicated than just handing the judge a piece of paper and saying "see, the signature is right there." The issue was illustrated by a 2005 decision, In re Vinhee
, which laid out in great detail the complex steps needed to prove an electronic business record. Way beyond just handing the Judge a piece of paper.
In Perry, the defendant sought to enforce arbitration provisions in a loan agreement that the plaintiff had signed online using a click-through mechanism. Although the plaintiff denied having signed the agreement, the defendant provided, through affidavits, evidence that to obtain a loan a customer had to go through a series of steps as part of the online application process, including checking boxes to indicate assent to the various contracts and policies involved. Citing to the UETA, the court held that these processes were sufficient to create an electronic signature and the evidence showing that the processes must have been followed in order for the plaintiff to obtain her loan, sufficient to prove her "signature."
Better Check the 'Net First
In a swan song before retiring
from the bench, bankruptcy judge James Gregg penned an interesting decision in In re Hale
, 2014 WL 2922347 (Bankr. W.D. Mich. 2014) touching on an attorney's obligation to do an on-line real estate search before filing a consumer bankruptcy case. After a chapter 7 trustee discovered, two years into the bankruptcy case, the debtors' ownership interest in previously undisclosed real estate, the debtors sought to convert their case to chapter 13. Judge Gregg held that the motion to convert was filed in bad faith and denied it. The court also denied an attempt by the debtors to exempt their interest in the previously undisclosed property.
None of this is particularly novel. So far. But, then, in a section of the opinion captioned "What Now? How These Circumstances Could Have Been Avoided and Possible Sanctions" Judge Gregg delved into the debtors' counsel's obligations under F.R.B.P. 9011(b):
"By presenting to the court (whether by signing, filing, submitting, or later advocating) a petition, pleading, written motion, or other paper, an attorney... is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances [list of four different categories]." .... Dietrich submitted the Debtors' erroneous schedules to the court. He therefore faces "presenting" sanctions unless a reasonable inquiry was made."
Judge Gregg believed that debtors' counsel had not, in fact, made a reasonable inquiry. Why not? Because the Judge (or someone in his office - the opinion does not state) was able to go online and discover the debtors' concealed real estate interest in "less than five minutes." Certainly, debtors' counsel or a paralegal could have, and should have, made a similar investigation given the searches' ease. Fortunately for debtors counsel, Judge Gregg did not actually impose sanctions, citing both the benefit of hindsight and the desire, given his pending retirement, to not impose the sanctions process on another judge.
While Judge Gregg is certainly correct about the ease of performing such searches in many jurisdictions and most situations, it's a bit of a slippery slope to state that not doing a real estate search prior to filing a bankruptcy case constitutes a failure to make a reasonable inquiry. The search was an easy one in the Hale case, but how easy should the search be before the attorney MUST do it. Run a grantee search for John Silva in New Bedford, Massachusetts (a heavily Portuguese town in my region) and you get twenty pages of results. Some title checks can take hours to sort through. At some point an attorney should be able to trust his client. Judge Gregg also doesn't address the fact that it took the chapter 7 trustee two years to discover the concealed real estate. Guess she didn't run a routine title check either.
Still, the warning is worth noting.