If we take a telephone application for a mortgage and the applicant requests the initial disclosures eletronically, we will generate all required initial disclosures through our doc prep company. The doc prep company sends an email to the applicant with all required ESign disclosures, etc. and a link to the initial documents. This is done within the 3-day timing requirement. If the link is not accessed within a certain amount of time, the doc prep company will then physically mail the disclosures to the applicant. Are we out of compliance for the 3-day timing since the documents were never accessed by the applicant? I know that our ESign disclosures, etc are correct and we show demonstrable consent, but if the applicant never retrieves the documents do we have any problems? We have tracking histories showing the early disclosures were prepared and sent within the initial 3 days.
Here’s a link to the E-SIGN Act: https://www.gpo.gov/fdsys/pkg/PLAW-106publ229/pdf/PLAW-106publ229.pdf. Take a look at 101(c). Generally, you need to provide notice of rights and certain information prior to consent, provide information on hard/software prior to consent, and document consent to obtain the documents in an electronic format and demonstrate that the consumer can receive/obtain the documents in the format you will use. If you are complying with these requirements and you then provide the documents via the form they have consented to and demonstrated they can access you are deemed to have provided the disclosures and complied with the requirements. If the applicant chooses not to open the documents that is their decision, the same as if they were mailed and they never opened their mail.