[Chris]

We utilize a third party for electronic delivery on some loan documents, namely DocuSign. DocuSign assists with E-SIGN compliance – first, it provides the E-SIGN disclosure to the consumer as a PDF, and then has a consent button at the bottom of the PDF document. The consumer consents by clicking the button, which takes care of “demonstrable consent” – i.e. if they can open the disclosure and click the button, then they’ve demonstrated they can open the type of disclosures we send (PDF’s).

My question is, what happens if the person never consents? For example, if we send an adverse action notice via DocuSign, if the e-mail is not opened and consent is not provided by the time we would be required to send the adverse action notice, I’m of the opinion that we have not complied with the Regulation B. My reading of the E-SIGN act indicates that you have to have the consumer’s consent (demonstrable consent, and only after providing the E-SIGN disclosure) before you are even allowed to substitute mail (or face-to-face, etc.) delivery with electronic delivery. Am I over-thinking this / being too conservative in my interpretation?

Any help or advice would be greatly appreciated!

Chris

[rcooper]

Chris,
I agree with you completely. If you have not complied with the esign requirements it is as if you did not provide AAN. Regulation B says the AAN must be in writing and in order to comply with that requirement electronically you must comply with esign.

Regulation B 1002.4(d)(2) states:
Disclosures in electronic form. The disclosures required by this part that are required to be given in writing may be provided to the applicant in electronic form, subject to compliance with the consumer consent and other applicable provisions of the Electronic Signatures in Global and National Commerce Act (E-Sign Act) (15 U.S.C. 7001 et seq.). Where the disclosures under §§ 1002.5(b)(1), 1002.5(b)(2), 1002.5(d)(1), 1002.5(d)(2), 1002.13, and 1002.14(a)(2) accompany an application accessed by the applicant in electronic form, these disclosures may be provided to the applicant in electronic form on or with the application form, without regard to the consumer consent or other provisions of the E-Sign Act.

[Author]

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