My Bank is dipping its toes in the water to become E-Sign Compliant. I have been doing tons of research, but I still have a couple of questions that I am hoping someone can answer for me.

1. If a customer signs or acknowledges the consent form, do they have to sign a new consent form with each new account, loan application, subsequent disclosures, etc.?
For example, A customer requests an application for a HELOC Refinance, the Bank sends them a consent form, they sign it and send it back through email to the Bank. The Bank then sends them the application and HELOC Packet, (I do know that I don't need consent for the HELOC Packet). Within 3 days the Bank emails them the required disclosures under Reg. B (if applicable) and Reg. Z. Then at a later date we need to send the appraisal. Do we need consent again?

2. If they apply for a subsequent loan at a later date will we need consent at that time as well? The same example would apply to deposit accounts opened at different times.

3. Can the Bank use a general disclosure that can be used for new accounts and loan requests?

Thank you for your help.

1. Depends on what your E-Sign disclosure says and whether or not the subsequent disclosures are sent using the same platform for which your customer provided demonstrable consent.

Sec 7001(c)(1)(B)(ii) gives you the option of describing what your customer is consenting to:

(ii) informing the consumer of whether the consent applies

(I) only to the particular transaction which gave rise to the obligation to provide the record, or

(II) to identified categories of records that may be provided or made available during the course of the parties’ relationship;

2. My answer is the same. If you provide loan documents via an emailed pdf document, but the requirements for accessing deposit disclosures is via a different platform/method, then you need demonstrable consent with a description of the software/hardware required for the deposit platform. If you are providing subsequent disclosures using the same process for which consent was previously obtained, then a new consent is not needed.

3. Yes, but only if the demonstrable consent process and hardware/software requirements are the same for each product.

I have one more question.

For joint applicants do we need separate consent from each applicant or can we send one consent form to one email and both applicants acknowledge the same consent form. How are other Banks handling this?

I feel like we should be sending a consent form to each applicants active email address's.

Each consumer must agree to receive their disclosures electronically.

See 7001(c)

(A) the consumer has affirmatively consented to such use and has not withdrawn such consent;

Consent is necessary only when you:
- are delivering federal disclosures, and
- the rules for delivering those federal disclosures say the disclosures must be delivered "in writing", and
- you and the customer have agreed to substitute electrons for paper.

Therefore, the answer to your question lies within the regulation requiring each disclosure. If its general delivery requirements say you are required to provide certain disclosures to all applicants, accountholders, etc., then all must consent for the e-delivered disclosures to be legal. Not all consumer protection regs are worded the same, so you have to look at each one that applies to the disclosures you want to send electronically.

As BrianC advises, when consent is necessary, a single consent can apply to as many e-documents as you spell out in your ESIGN pre-consent disclosure. Before consent is valid, however, the consumer must pass a "test drive" of your e-delivery system(s). If you have more than one e-document delivery system (ex- one for deposits and a different one for loans), then you will need as many "test drives" as the number of e-document delivery systems you will use to provide various federal disclosures to the consumer giving consent. .

So I found this statement in some guidance on the E-Sign Act as it applies to Truth in Savings. Is it correct that we would need consent with each subsequent disclosures?

Every subsequent disclosure required under Regulation DD requires the customer's consent under the E-SIGN Act to receive them electronically.
I. Change-in-terms notices
II. Periodic statements
III. Maturity notices
IV. Initial disclosures
V. Account disclosures not requested directly by the customer. (Like changes in fees or rates)

No - it means that in your initial E-Sign agreement, you need to specifically reference consent to receive those sorts of disclosures, if you want them covered in the future.

Thank you so much for everyone's help. I appreciate it very much.

The exact standard is in Section 7001(c)(1)(B)(ii) of ESIGN. As one of the list of preconsent disclosures, you must
"inform the consumer of whether the consent applies
(I) only to the particular transaction which gave rise to the obligation to provide the record, or
(II) to identified categories of records that may be provided or made available during the course of the parties’ relationship"

Obviously, you don't want consent to apply only to a single transaction, so paragraph II applies. "Categories of records" gives you unlimited latitude in the terms of your agreement with consenting consumers. You can enumerate every item you want to switch from paper to electrons, or that part of your agreement/disclosure can be very broad.