Currently we only offer eStatements on our checking and savings accounts. We are in the process of adding mortgage and consumer loan statements to the accounts that offer eStatements. The only change to our ESIGN agreement will be to add language stating that mortgage and consumer loan accounts can also receive eStatements. Does this require a change of terms notice? There is no change in hardware or software and no change that will affect existing customers. My thought is, we don't need to provide a notice to existing customers and they don't need to re-agree, but I'm not 100% positive on this. Would a simple statement notice stating we are now offering eStatements to mortgage loan and consumer loan customers suffice?

Thanks1

Review your original and any subsequent E-SIGN exchanges (the communication to the consumer explaining whether their demonstrative 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 consumer's relationship with the bank --- as required in §7001(c)(1)(B)(ii) of the ESIGN Act --- to see what the scope of the consumers' current consent is. If it was limited to "identified categories of records" such as deposit account statements or to disclosures related to the consumer's application for a mortgage loan, for example, you will need to do the ESIGN dance again.

If you have to repeat the ESIGN dance, I recommend that you refresh all of the ESIGN information you've used in the past to deliver the information required under §7001(c) and broaden your scope of electronic records to include the current offerings and the e-statements for mortgages and consumer loans, plus any other notices that you are required to provide under federal laws or regulations that you intend to deliver electronically (or may in the future). Be aggressive in your listing of the categories of records that may be provided or available electronically.

While you're at this task, don't forget to look at notices you could be providing electronically relating to those deposit accounts, but haven't yet converted to electrons. I'm thinking about Reg CC hold notices that aren't provided at the time check deposits are made as an example.

In other words, cut a wide swath for yourselves in this next and future solicitations of ESIGN consent to avoid having to do "a la carte" solicitations each time you want to eliminate another paper document.

Thank you John! I appreciate the help.

I agree with John's advice to obtain broad consent going forward...and to circle back and obtain updated consent from customers who are already receiving some form of e-documents. Recognize, however, that your wording is very important. "Consent" gives you the customer's "OK" to begin using (or switch to) e-documents to deliver content that must be "in writing." Be careful to separate this "HOW" part of your agreement from the language that spells out WHEN the tree-free delivery will begin. In some cases (periodic statements bearing Reg E and DD disclosures, for example) you want to get immediate approval from the consumer and set the "when" switch to "today." Using John's example of hold notices, however, it would be smart to draft the master consent/agreement so e-delivery of yet-to-be-determined e-documents is preapproved by the consumer--subject to an agreed future date for the new stream of e-documents to begin. Only then would you have an obligation to deliver electronically. By including a mechanism for delayed start-up, you eliminate confusion and make your delivery obligation clear ("written" vs. anything else.) Nobody wants surprises when it comes to the delivery of legal documents that could trigger penalties.