2018 GNYADA Membership Directory

Electronic Signatures and Records The federal Electronic Signatures in Global and National Commerce Act (the E-SIGN Act) and the state-adopted Uniform Electronic Transactions Act (UETA) were enacted to resolve uncertainty about whether electronic documents and signatures are as valid as paper ones. Both acts provide that electronic records and signatures have the same legal status as ink signatures and paper records. Under both, an “electronic record” is information “that is stored in an electronic or other medium and is retrievable in perceivable form” and an “electronic signature” is “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.” Neither act changes the disclosure or content requirements for documents under other law. The E-SIGN Act requires that consumers specifically consent to receiving disclosures that are required to be “in writing” electronically and provides specific requirements for obtaining such consent. Alternatively, one can provide such disclosures in paper form and avoid the consent procedure imposed by the E-SIGN Act. Please note that because of limitations in their scope, the E-SIGN Act and UETA do not alter the documentation and signature requirements of Uniform Commercial Code Article 9, which provides the requirements for the customer to grant the creditor a security interest in the vehicle sold. Fortunately, Article 9 permits the use of electronic records and signatures to grant a security interest in substantially the same way as the E-SIGN Act and UETA would. So the electronic records and signatures used in the customer’s financing contract that satisfy the E-SIGN Act and UETA requirements will also satisfy the Article 9 requirements for the contract. As a result, a consumer’s digital signature on an electronic signature pad linked to an electronic document or their digital signature on a tablet used to provide the documents has the same legal effect as their ink signature on a paper document. A click-through to a website can also be an electronic signature. The electronic document can be stored in an electronic filing cabinet or vault and should be retained for a period of time equal to the retention period for a paper version of the same document. Under TILA, the consumer must receive a copy of the disclosures that the consumer can keep prior to the consummation of the transaction. See more in Chapter 12: Recordkeeping and Destruction of Records. Servicemembers Civil Relief Act (SCRA) Formerly called the Soldiers and Sailors Civil Relief Act, this law imposes a 6-percent rate cap on pre-existing secured credit, including vehicle credit sale or a loan, during the period of military service. These provisions apply to both the person inmilitary service and their dependents with respect to obligations entered into by such persons before the service member was called to active duty status. The SCRA also allows service members to terminate pre-service automobile leases if they are called for military service of 180 days or longer. Service members who sign automobile leases while on active duty may be able to terminate an automobile lease if they are given orders for a permanent change of station outside the continental United States or to deploy with a military unit for a period of 180 days or longer. This law requires a creditor to file an affidavit with the court regarding whether or not a customer is in military service before obtaining a default judgement against a customer. It also permits a court to stay (delay) the repossession of a vehicle in certain circumstances. It requires a court to review and approve any repossession or termination of a lease if the service member entered into the credit sale, loan, or lease and made a payment before entering military service. The court may delay the repossession or require the creditor to refund prior payments before repossessing. It can also appoint an attorney to represent the service member, require the creditor to post a bond with the court, and issue any other orders it deems necessary to protect the service

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