If the borrower provides an email address can that be considered consent? Our internal auditor is stating that if they weren't willing to get things via email why would they provide their email address.

What do you mean by "consent"? Consent for what?

Under the auspices of the TRID rules, you've got to jump through the hoops of the E-SIGN Act - just providing the e-mail address is not consent to receive (though it may be a request to receive).

I'll flat out say your internal auditor is wrong. Just because I give you my email address doesn't mean I'm agreeing to have you send my private information over the internet. Tater nailed it.

As an internal auditor, I agree with TR and Tater. I would expect more documentation for consent than just a provided email address.

The issue under E-SIGN has nothing to do with privacy of personal information. That is a separate issue altogether, and personal info shouldn't be send via unsecure or unencrypted email.

The E-SIGN issue is that you need to disclose certain information about what you propose to have covered, what the consumer needs (hardware, software, etc.) to receive and read it, how it will be delivered. The consumer has to demonstrate that he can receive information in the format and via the channel you'll use, and provide consent to receive it electronically.

It's all spelled out in section 7001(c) of the E-SIGN Act. We have it conveniently accessible here on the BOL site at https://www.bankersonline.com/regulations/esign-7001. Check it out.

Better yet. Have your auditor check it out. If he or she is going to be effective as an auditor, knowledge of the subject helps.

Agree with everyone else. Providing an email address does in no way constitute "demonstrable consent" nor comply with the requirements ESIGN. Furthermore, if you do not comply with ESIGN and send Reg Z disclosures via email you'll have a whole mess of issues and violations to deal with.

As John said share the info he provided with your auditor. If your auditors are like some of our external auditors (fresh out of college SOX auditors trying to review compliance) you will have to educate them on certain things during reviews. Best of luck.

I'm trying to determine if E-sign consent is required before we can deliver the following Mortgage-related documents via email. The MLO (for whatever reason) wants to send these immediately following the initial phone call or meeting (before Esign). They want to provide this information before the Loan Estimate package is sent at 3-days which is when Esign consent is obtained.

All of the documents require a signature with the exception of our Privacy Notice.

1) Relationship Pricing Disclosure (Discloses automatic payment and relationship pricing discounts that are available. It is an "agreement" that talks about when the discount would be lost - such as cancelling auto payments.)
2) Privacy Notice (there is no opt out)
3) Loan Payment Authorization (This agreement authorizes the automatic payments.)
4) Customer Consent, Referral & Information Sharing (Authorizes the bank to share information with our third-party investment provider.)

Number 2 is required by Federal regulation to be delivered in writing - so that one is out. How do they sign these documents?

You can send whatever you want. They just won't be considered delivered. If the LO wants to send them a curtesy copy via email immediately, I don't think there is anything stopping them. They just won't be considered provided in writing until you provide them through an appropriate channel.

I'm with Inherent, we routinely provide courtesy copies via email but never use that to show compliance. We always deliver through another method...usually USPS. I have had many discussions regarding this with investors and all have accepted the practice as long as you document delivery and either of the following is true:

1) the customer either physically signs the disclosures and returns them or
2) their electronic acknowledgement is at least next day