Electronic Signatures in Global and National Commerce Act (E-Sign Act)

Consent and Disclosures

1. The ESIGN Act encourages that consumers have given consent and received any necessary disclosures as part of the electronic contracting process. The consumer is to be provided with a "clear and conspicuous statement" regarding the option to receive the record in a non-electronic form, if any, and the right to withdraw consent at any time. 2. the consumer should always be provided with information on how to access and retain the electronic record or document, based on the hardware or software being used.

Retaining Original Documentation

Businesses must retain evidence of contractual agreements to fulfill legislative requirements and to clarify any future questions about the legitimacy of a contract or the details of specific terms.

Exceptions to the E-Sign Act

Certain types of records and documents are not covered by the ESIGN Act. These include: Wills, codicils, and trusts Adoption paperwork Divorce decrees Certain areas of the Uniform Commercial Code Court orders and notices Official court documents, including briefs and pleadings Notices of the termination of utility services Notices of default, foreclosure, repossession, or eviction The cancellation of insurance benefits Product recalls or notices of material failures Documentation accompanying the transportation of hazardous materials

By who & when?

ESIGN Act was signed into law by President Bill Clinton on June 30, 2000

E-Sign Act

Electronic Signatures in Global and National Commerce Act

Record Retention

Mortgagees are reminded that they "must maintain their origination case binders in either hard copy or electronic format for a period of two years from the date of endorsement. Servicing lenders must maintain the case binder for a period of two years beyond the life of the loan." For servicing case binders, "the documents required to be retained as originals and the remaining paper documents or acceptable imaged versions are retained for a minimum of the life of the loan plus three years, and any additional time required due to payment of a claim."

Electronic Signature Validity

The ESIGN Act confirmed that electronic signatures have the same legal standing as pen-and-paper signatures, and a contract or record of transactions may not be denied legal effect or ruled unenforceable simply because it is in electronic form.

Federal and State Regulations

the ESIGN Act established that its specific guidelines may only be modified or limited by states in the case of adopting the Uniform Electronic Transactions Act (UETA)