In this digital world electronic signatures are going to be the norm, rather than the exception. Even prior to implementation of the Arizona Electronic Transactions Act there have been cases addressing non-traditional “inked” signatures. Those cases involved a name that was typed on paper and intended by the person to be their signature.
The Act addresses the digital world of electronic signatures. If you purchased a home in the last few years, or obtained a student loan, chances are you e-signed your name to at least one of the documents. The Arizona Electronic Transactions Act applies to any electronic record and electronic signature relating to a transaction. The Act does not apply to a transaction dealing with wills, codicils or testamentary trusts and certain other statutes dealing with the Uniform Commercial Code.
Existing case law is consistent with the Arizona Electronic Transactions Act. A document is “signed” when a person employs “any of the known modes of impressing a name on paper” including “writing, printing, lithographing, or other such mode, provided that same is done with the intention of signing.” Bishop v. Norell, 88 Ariz. 148, 151, 353 P.2d 1022, 1025 (1960) (holding that party’s typed name on a listing agreement qualified as a sufficient signature and the party to be bound so conceded); see generally Restatement (Second) of Contracts § 134 (1981) (defining a “signature” as “any symbol made or adopted with an intention … to authenticate the writing as that of the signer.”).
More recently, the Haywood Securities, Inc. v. Ehrlich court held that a judge’s typed signature on electronically filed judgments complied with civil procedure requirement that an appealable judgment be “signed.” Haywood Securities, Inc. v. Ehrlich, 214 Ariz. 114, 115, 149 P.3d 738, 739 (Ariz. 2007). In Haywood, Plaintiff tried to have the previous judgment dismissed because pursuant to Rule 58(a), “All judgments shall be in writing and signed by a judge.” The Supreme Court of Arizona disagreed holding that nothing in Rule 58(a), or our case law mandates that a judge manually sign an order for it to be a valid judgment. As long as a judge intends that his or her electronic signature formalizes a written judgment, the document complies with Rule 58(a). Therefore, Arizona recognizes electronic signatures as valid and binding.
While Arizona recognizes electronic signatures, there are several requirements that need to be fulfilled in order for the signature to be recognized as valid and binding. To have a valid and binding electronic signature, the signer must complete the requirements of A.R.S. § 44-7031, as well as overcome the presumptions of A.R.S. § 44-7033.
A.R.S. § 44-7031 sets the literal requirements to create a valid binding electronic signature in Arizona. A signature is a secure electronic signature if, through the application of a security procedure, it can be demonstrated that the electronic signature at the time the signature was made was all of the following:
1. Unique to the person using it.
2. Capable of verification.
3. Under the sole control of the person using it.
4. Linked to the electronic record to which it relates in such a manner that if the record were changed the electronic signature would be invalidated.
A.R.S. § 44-7033 refers to the presumptions that arise from an electronic signature. Under Arizona law, it is presumed that:
(1) The electronic record has not been altered since the specific time to which the secure status relates,
(2) There is a rebuttable presumption that the secure electronic signature is the electronic signature of the party to whom it relates and,
(3) In the absence of a secure electronic record or a secure electronic signature, there is no presumption of validity or forgery.
A record or signature in electronic form cannot be denied legal effect and enforceability solely because the record or signature is in electric form. A.R.S. § 44-7007(A). Further, a contract formed by an electronic record cannot be denied legal effect and enforceability solely because an electronic record was used in its formation. A.R.S. § 44-7007(B).
If the electronic signature meets the requirements of A.R.S. §§ 44-7001-7051, the electronic signature should be valid and binding in Arizona.
The attorneys at Windtberg & Zdancewicz, PLC provide clients with experienced legal representation in all litigation and bankruptcy matters. We are experienced in creditor’s rights prosecuting and defending garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases. If you need assistance with your collection matters, please contact us at (480) 584-5660.