Posted By: Dan Persfull
E-sign Demonstrable Consent - 01/07/20 05:16 PM
Apologies for the length.
Currently our E-sign process provides the documents through a portal where the consumer has to set up an “account†to open the documents. Once they do this we receive notice they have opened and agreed to receive their documents electronically. This process as it is now is compliant with E-sign.
We are looking at going to a Web based application set up and one of the concerns I have is when the consumer consents to E-Sign they are simply clicking a radio button on the disclosure to show their consent. There is no document for them to open to show they are able to open a Word, Excel or PDF format document.
This is the response from the vendor (the bold emphasis was added by me);
A concern some clients have shared is that the initial consent is offered to the borrower in a different format than the subsequent documents are offered for the borrower’s access.
The E-Sign Act does not require that the initial consent be offered to the borrower in the identical format as the subsequent documents are offered for the borrower’s access. The E-Sign Act requires that the initial consent is completed in a manner that reasonably demonstrates the borrower’s ability to access the subsequent documents:
15 USCS § 7001(c)(1) ... such information satisfies the requirement that such information be in writing if ... (C) the consumer … (i) prior to consenting, is provided with a statement of the hardware and software requirements for access to and retention of the electronic records; and (ii) consents electronically, or confirms his or her consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent; ...
The issue is whether a borrower’s ability to access and operate a web browser using hypertext markup language (“HTMLâ€) in order to consent to E-Sign, reasonably demonstrates the borrower’s ability to access documents in a graphics interchange format (“GIFâ€). GIF is a widely available format supported and built-in to all modern browsers. Ellie Mae’s position is that a borrower’s ability to access a website using HTML with a browser is an exceedingly sufficient demonstration of that borrower’s ability to access documents in a GIF format using the same browser.
My contention is this is not compliant because the consumer has not provided demonstrable consent that they can access the document in the form it will be provided. A GIF, from my understanding is primarily an “image†file and not a “document†file. If they are demonstrating their consent using a GIF file then the way I read the regulation we would have to provide all our documents subject to E-sing in a GIF format.
What would be your opinion as to whether their process would be compliant with E-sign’s demonstrable consent requirement?
Thanks.
Currently our E-sign process provides the documents through a portal where the consumer has to set up an “account†to open the documents. Once they do this we receive notice they have opened and agreed to receive their documents electronically. This process as it is now is compliant with E-sign.
We are looking at going to a Web based application set up and one of the concerns I have is when the consumer consents to E-Sign they are simply clicking a radio button on the disclosure to show their consent. There is no document for them to open to show they are able to open a Word, Excel or PDF format document.
This is the response from the vendor (the bold emphasis was added by me);
A concern some clients have shared is that the initial consent is offered to the borrower in a different format than the subsequent documents are offered for the borrower’s access.
The E-Sign Act does not require that the initial consent be offered to the borrower in the identical format as the subsequent documents are offered for the borrower’s access. The E-Sign Act requires that the initial consent is completed in a manner that reasonably demonstrates the borrower’s ability to access the subsequent documents:
15 USCS § 7001(c)(1) ... such information satisfies the requirement that such information be in writing if ... (C) the consumer … (i) prior to consenting, is provided with a statement of the hardware and software requirements for access to and retention of the electronic records; and (ii) consents electronically, or confirms his or her consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent; ...
The issue is whether a borrower’s ability to access and operate a web browser using hypertext markup language (“HTMLâ€) in order to consent to E-Sign, reasonably demonstrates the borrower’s ability to access documents in a graphics interchange format (“GIFâ€). GIF is a widely available format supported and built-in to all modern browsers. Ellie Mae’s position is that a borrower’s ability to access a website using HTML with a browser is an exceedingly sufficient demonstration of that borrower’s ability to access documents in a GIF format using the same browser.
My contention is this is not compliant because the consumer has not provided demonstrable consent that they can access the document in the form it will be provided. A GIF, from my understanding is primarily an “image†file and not a “document†file. If they are demonstrating their consent using a GIF file then the way I read the regulation we would have to provide all our documents subject to E-sing in a GIF format.
What would be your opinion as to whether their process would be compliant with E-sign’s demonstrable consent requirement?
Thanks.