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Delivery of a Closing Disclosure by Email

Question: 
In search for further guidance on compliance for delivery of a Closing Disclosure (CD) by way of email (with a borrower's E-Sign consent) we have varying differences in the interpretation of the word "Receipt". It has been our department's practice to deliver the CD within no less than 3-business days prior to closing. Documentation to evidence delivery has been by including a printed copy of 1) email showing our department's delivery of the CD to the borrower by way of email, and/or 2) a printout showing the "Arrival Date" of the email/attachments to the borrower. Some have interpreted the "Receipt" rule as evidence the email and attachment(s) was "OPENED". Are we in violation if a loan is scheduled to close on a Monday and the borrower did not “OPEN” the email until the 2nd business day (Thursday) prior to closing – even though we have evidence to show “ARRIVAL” of our CD on or before the 3rd business day prior to closing?
Answer: 

by Randy Carey:

If you have previously obtained demonstrable consent to E-Sign delivery of documents, the day of receipt is three business days from the day you make them available, whether they open them or not, or when they open the documents, whichever comes first.

Answer: 

by Jim Bedsole:

"Arrival" and "Sent" from an email standpoint are generally the same date. If you sent the CD 3 business days prior to closing and therefore it "Arrived" 3 business days prior to closing, it has not yet been "received" by the borrower at least 3 business days prior to closing. To meet that standard, one of two things would have to have happened:
1. You sent the CD at least 6 business days prior to closing (then it doesn't matter when the customer opens the email, it is presumed to be received at least 3 business days prior); or
2. You have evidence that the customer opened the message with the CD included at least 3 business days prior to closing (then it doesn't matter when you sent it and when it "arrived").

In your final question you asked if you were in violation if the CD wasn't opened until 2 business days prior to closing if the CD arrived on or before the 3rd business day prior to closing. The answer is you would be in violation if you sent that CD less than 6 business days prior to closing, but if you sent it at least 6 business days prior to closing you would not be in violation.

First published on 12/01/2019

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