[rcooper]

This discussion is part of a recent M2M Peer Session topic. Please post you questions about specific E-Sign compliance questions here.

Topic

[Rich]

Does demonstrable consent apply ONLY to disclosures, or any email communication containing personal information (such as tax returns, appraisals, etc?)

[rcooper]

The E-Sign provides that electronic records are as valid as paper documents if certain requirements are met, meaning electronic records can satisfy any statute, regulation, or rule of law requiring information be provided in writing, if the consumer has affirmatively consented to such use and has not withdrawn such consent.

If something is required to be provided to the consumer and you plan to deliver it electronically, you will want to ensure you have met the requirements of E-Sign, including demonstrable consent.

As a reminder, make sure you are delivering electronic documents securely.

[dmadridcnb]

We’re using DocuSign for our loan disclosures. It has worked well so far. We vetted several vendors and found that many had different interpretations of demonstrable consent. We felt comfortable with DocuSign’s process.

If we are depending on certain disclosures to be on the application, could they be posted on the bank’s website and not have to be delivered via an E-SIGN compliant method? If they are there and the customer chooses to download them electronically, then we’re not forcing it upon them to accept disclosures electronically. It was their initiative.

I’m asking because we generally provide the apps on paper, but if they are forwarded to the customer to fill out via email, we are thinking they have to go through DocuSign unless they are to download them from the bank’s website.

[dmadridcnb]

Following up-

If we are depending on certain disclosures to be on the application, could they be posted on the bank’s website and not have to be delivered via an E-SIGN compliant method? If they are there and the customer chooses to download them electronically, then we’re not forcing it upon them to accept disclosures electronically. It was their initiative.

[kmeade]

I think it would depend on what disclosures you are referring to. Are they generic disclosures like “Member FDIC” “Equal Housing Lender” or disclosures depending on a specific transaction?

[Author]

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