Mr S separates from his wife.
|
Mr S and his de facto separated and, on seeking to refinance the home loan in January 2004, Mr S found out that the original loan had already been refinanced by the financial institution and had been increased by $22,450. Mr S said that he did not make the application for an increase to his loan, had not signed any loan documentation and said that he knew nothing about the increase in the loan amount. Mr S raised a dispute with the financial institution as he did not believe that he should be responsible for the additional loan amount.
|
Financial institution finds that Mr S signed the paperwork
|
The financial institution investigated the matter and said that all loan documentation had apparently been signed by Mr S including the following documents that had been returned to it:
|
- a signed application dated 15 April 2003 by which Mr S had requested an increase in the loan by an additional amount of $22,000;
- a nomination document by which Mr S had nominated his de facto to receive credit code notices and other documentation on his behalf;
- the Consumer Credit Contract dated 12 June 2003; and
- two handwritten letters including disbursement instructions signed by Mr S which authorised Mr S’s de facto to collect the cheque from the financial institution.
|
The financial institution acted on these instructions. It repaid the original housing loan and an amount of $22,819.12 was paid to Mr S’s partner’s company by cheque.
The financial institution obtained a report from a handwriting expert to establish whether the signatures on the loan documentation were in Mr S’s handwriting. The handwriting expert confirmed that the writing on the loan documentation provided to him was that of the writer of the sample documents supplied. The financial institution took the view that this meant that Mr S had signed the loan documentation and that he was liable for the additional amounts borrowed.
|
Mr S maintains that he did not sign loan documentation
|
Mr S rejected the handwriting expert’s conclusion and the financial institution’s position. He said that he had not signed any of the loan documentation in April or June 2003 and he provided documentation to show that he was away at sea at the time. Mr S believed his de facto partner had forged his signature on the documentation.
The bank officer who had dealt with the application for an increase in the loan had died and, consequently, information in relation to the application in April 2003 was limited.
Mr S lodged a dispute with BFSO.
|
BFSO’s investigation
|
In circumstances where there is a dispute over the authenticity of a signature, it is the Ombudsman’s practice to request the advice of a forensic document examiner. As BFSO uses the same handwriting expert that the financial institution had itself engaged and generally accepts his views, the case manager initially had to determine whether there was any basis to review the handwriting expert’s decision.
|
Reviewing the evidence of the hand writing expert
|
The case manager reviewed the documentation that had been supplied to the handwriting expert by the financial institution as examples of his handwriting and she made further enquiries of Mr S.
After obtaining information from Mr S, it became apparent that a number of the sample documents that had been provided to the handwriting expert by the financial institution and which had been used as examples of
Mr S’s handwriting were documents that were, in fact, themselves in dispute and were not agreed samples of Mr S’s handwriting. The case manager took the view that this was a basis to review the handwriting expert’s conclusion.
The case manager obtained further samples of Mr S’s handwriting and instructed the same handwriting expert who had written the first report to consider whether Mr S’s signatures on the bank documents were authentic. She omitted the sample documents that had been identified as disputed documents in her instructions. She requested the expert to consider whether the signature on the loan documentation in dispute was the same as that on the new sample documents and existing agreed sample documents. The handwriting expert concluded that, taking the new sample documents into account, the handwriting on the loan documentation from April 2003 and June 2003 was in fact a forgery and was not Mr S’s signature.
|
Resolution
|
The financial institution maintained that Mr S had had the opportunity to dispute the sample documents used in its instructions to the handwriting expert, but had failed to do so. However, the financial institution accepted the second opinion of the handwriting expert and agreed that Mr S would not be held liable for the additional amount borrowed in June 2003. The loan was recast and Mr S was restored back to the position that he would have been in had the original loan not been increased.
The dispute was resolved by negotiation without the need for a Finding.
|
