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On November 28, the Financial Industry Regulatory Authority (FINRA) filed a proposed rule change with the SEC to amend paragraph (a)(3) of FINRA Rule 4512(a)(3)—“Customer Account Information”—which will permit the use of electronic signatures consistent with the E-SIGN Act. Specifically, under the proposed rule, firms will be allowed to obtain electronic signatures of personnel exercising discretionary trading authority over customer accounts maintained by a member. FINRA acknowledges that “[g]iven technological advances relating to electronic signatures, including with respect to authentication and security” it now believes that the requirement for manual signatures is obsolete. If approved by the SEC, the proposed rule change will be published in a regulatory notice no later than 60 days following approval, and will take effect within 30 days following publication.
Ohio governor enacts legislation recognizing blockchain transactions as enforceable electronic transactions
On August 3, the governor of Ohio signed into law SB 220, which codifies that records or contracts and signatures secured through blockchain technology are enforceable electronic transactions. Specifically, SB 220 amends Ohio’s Uniform Electronic Transactions Act to state that “a record or contract that is secured through blockchain technology is considered to be in an electronic form and to be an electronic signature” and that a “signature that is secured through blockchain technology is considered to be in an electronic form and to be an electronic signature.” The amendments also create an affirmative defense or “safe harbor” to tort actions against businesses alleged to have failed to implement reasonable information security controls leading to a data breach of personal or restricted information. To qualify for the safe harbor, a business must implement and comply with a written cybersecurity program that contains specific safeguards for either the protection of personal information or the protection of both personal and restricted information.
On October 31, Fannie Mae issued Announcement SEL-2017-09, highlighting recent updates to its Selling Guide, that generally affirm the ability to conduct activity using electronic records. Among other things, the update (i) confirms that sellers and servicers are authorized to originate, service, and modify loans using electronic records; (ii) requires that validation and security measures be put in place for systems generating electronic records; (iii) specifies that recorded mortgages and deeds of trust are not required to be maintained in paper form; and (iv) clarifies that all electronic signatures must comply with ESIGN, the Uniform Electronic Transactions Act (UETA), and other applicable laws. The updates are effective immediately.
Additional changes address the (i) introduction of Fannie Mae’s Servicing Execution Tool and Servicing Marketplace, which are designed to improve transfers of servicing; (ii) clarification that property owned by inter vivos revocable trusts qualify as eligible collateral; and (iii) updates to policies related to mortgage debts paid by parties other than the borrower.
District Court Denies Summary Judgement to Both Parties, Cites Issue of Material Fact Concerning Prepopulated Electronic Signature
On October 18, a federal judge in the U.S. District Court for the District of South Carolina denied summary judgment to both parties because there was a genuine issue of material fact regarding whether a “meaningful offer” of underinsured motorist coverage (UIM) was made. The insured’s electronic signature on the UIM form would indicate that the defendant made a “meaningful offer” of UIM coverage, as required under South Carolina law, and such coverage was rejected. The dispute however, in this case was about whether the electronic signature was prepopulated by the defendant.
Plaintiff purchased an auto insurance policy from the defendant online, and the coverage did not include UIM coverage. Plaintiff argued that he never signed the UIM coverage provision and that instead, his signature was prepopulated by the defendant’s website. The plaintiff argued that his prepopulated signature did not satisfy the requirements for a meaningful offer of UIM coverage. The defendant rebutted by stating that prepopulating portions of the UIM form is compatible with providing a meaningful offer of UIM coverage. The court was “disinclined to agree” with the defendant’s argument that a “prepopulated signature that appears on an insurance policy before the insured reads through and signals affirmative consent. . .fulfills” the UIM requirements. After reviewing the record, which was limited to screenshots produced by the plaintiff (as the defendant’s attempt to proffer additional system-based evidence was refused by the court because the defendant previously objected to producing it during discovery), the court concluded that it could not grant summary judgment to either party because of the factual dispute regarding whether the plaintiff signed the UIM provision.
On October 11, Fannie Mae and Freddie Mac announced updates to their respective Servicing Guides.
Fannie Mae. Servicing Guide Announcement SVC-2017-09 highlights recent updates to the Servicing Guide, including topics related to the management of electronic transactions such as: (i) confirmation that sellers and servicers may originate, service, and modify loans using electronic records (electronic promissory notes require special approval); (ii) streamlined language clarifying requirements for the accuracy of information in electronic records; (iii) specification that paper records are not required for recorded mortgages and deeds of trust; (iv) clarification that all electronic signatures must comply with ESIGN, UETA, and other applicable laws; and (v) the removal of requirements for document custodians from the Servicing Guide that were duplicative of requirements set forth in Fannie Mae’s Requirements for Document Custodians. Additional updates address changes made to the reimbursement of foreclosure sale publication costs for costs incurred on or after January 1, 2018, and specific guidance for servicers pertaining to mortgage liens (to be implemented by December 1, 2017).
Freddie Mac. Freddie Mac issued Bulletin 2017-22 announcing servicing updates concerning (i) modifications to imminent default evaluation and process requirements (jointly developed with Fannie Mae) that will take effect July 1, 2018; and (ii) provisions under the Servicemembers Civil Relief Act (SCRA) related to compliance time frames for servicers when responding to, or submitting requests for, interest rate reductions, along with updates that take effect February 1, 2018, concerning Guide Exhibit 71 used by servicers to report eligible SCRA interest rate subsidized loans. The updates also eliminate the manual property condition certificate process and modify time frame requirements for cancelling property insurance policies on real estate owned properties.
On October 3, a three-judge panel of a Texas Court of Appeals reversed and remanded, while affirming in part, a trial court’s decision concerning an alleged breach of contract over a $230 million sale agreement. On appeal were three issues, including a challenge to the grounds on which the trial court granted summary judgement under the Uniform Electronic Transactions Act (UETA). The trial court concluded that the “parties did not agree to conduct business electronically and that the alleged contract did not contain a valid electronic signature.” But the panel reversed the decision, holding that an agreement between parties to conduct transactions by electronic means “need not be explicit” under UETA, and finding that the parties’ email negotiations constituted “at least some evidence that the parties agreed to conduct some of their transactions electronically.” and The panel also cited their earlier decision in Khoury v. Tomlinson, that was previously discussed in InfoBytes, to address the question of whether the emails between the two parties were signed electronically. Khoury ruled that an email satisfied the writing requirement because it was an electronic record, and that the header, which included a “from” field constituted as a signature because that field served the same “authenticating function” as a signature block. Consequently, because there was “at least some evidence that the relevant emails were signed as defined in UETA,” the trial court in this matter erred in granting summary judgment.
Further, because the panel found that there still remain questions regarding whether the parties actually formed an agreement concerning the sale of assets, the panel stated they were unable to determine “as a matter of law, under the particular facts of this case, whether such a contract is illusory.” Thus, the trial court erred in granting summary judgment on these grounds as well.
The remainder of the trial court’s judgments were affirmed, and the case was remanded for further proceedings consistent with the opinion.
On August 9, a Wall Street Journal article reported the first mortgage refinance conducted entirely through a remote electronic online closing using electronic signatures. The loan will soon be electronically sold to Freddie Mac. While electronic mortgages are not new, this was the first closing that did not require a notary public be physically present, according to the article. Using an online notary service, the borrowers answered a series of questions to authenticate their identities, and without the need to “wet sign” any of the documents. Freddie Mac’s Vice President of Single-Family Business Transformation Management, Samuel E. Oliver III, stated that “by having things digitized, a loan would be able to get to the secondary market much more quickly. . . . [M]ortgages could be delivered to an investor in as little as one day—a process that takes a median of 29 days now.”
As previously covered in InfoBytes, Freddie Mac released a bulletin last September outlining conditions, which allow closing documents to be electronically recorded. Freddie Mac also provides several resources concerning eClosings and eMortgages on their website.
On May 10, Fannie Mae announced it would begin accepting copies of electronically recorded mortgages rather than original wet-signed documents. This follows a prior September 2016 announcement from Freddie Mac, which changed its policy on the electronic recording of paper closing documents.
Fannie Mae. As set forth in Section A2-5.2-01 of its Servicing Guide, Fannie Mae says that electronic records may be delivered and retained as part of an electronic transaction by the seller/servicer to the servicer, document custodian or Fannie Mae, or by a third party, as long as the methods are compatible with all involved parties. Additionally, the electronic records must be in compliance with the requirements and standards set forth in ESIGN and, when applicable, the Uniform Electronic Transactions Act, as “adopted by the state in which the subject property secures by the mortgage loan associated with the electronic record is located.”
Freddie Mac. A bulletin released last September updated Sections 1401.14 and 15 of Freddie Mac’s Servicing Guide by removing the requirement that a seller/servicer retain the original paper security instrument signed by the borrower if an electronic copy of the original security instrument is electronically recorded at the recorder’s office, provided the following conditions are met:
- The seller securely stores along with the other eMortgage documents either (i) “the electronically recorded copy of the original security instrument,” or (ii) “the recorder’s office other form of recording confirmation with the recording information thereon”; and
- Storage of the original security instrument signed by the borrower is not required by applicable law.
According to Freddie Mac, “Removing this requirement addresses one of the barriers for eMortgage adoption in the industry, permitting more [m]ortgage file documents to be [e]lectronic and reducing some storage costs for [s]eller/[s]ervicers.”
On May 9, Senators Rob Portman (R-Ohio) and Michael Bennet (D-Colo.) introduced legislation that would make it easier for taxpayers to be represented in disputes with the Internal Revenue Service (IRS). As set forth in a press release issued by Sen. Portman’s office, the Electronic Signature Standards Act (S. 1074) would amend the Internal Revenue Code of 1986 by providing uniform standards for the use of electronic signatures for third-party disclosure authorizations, and thereby would “make it easier, and faster, for professional tax experts to represent taxpayers before the IRS by instituting electronic signature standards for third party disclosure authorization forms.” Notably, the IRS already uses electronic signatures for Form 4506-T (Request for a Transcript of Tax Return), which is commonly used in the mortgage industry. The use of electronic signatures on these forms has allowed the IRS to process over 20 million of these forms a year, and the Electronic Signature Standards Act would extend similar electronic signature requirements to Form 2848 (Power of Attorney and Declaration of Representative) and Form 8821 (Tax Information Authorization). These forms are required before a professional tax expert can begin representing a taxpayer before the IRS. “Taxpayers deserve quick access to the IRS, and this bill makes that access possible,” said Sen. Portman.
Arizona Enacts Laws Providing for Legal Recognition of Certain Electronic Signatures and Other Records
Last month, Arizona Governor Doug Ducey signed into law two pieces of legislation (S.B. 1084 and S.B. 1078), which formally grant legal recognition of electronic records and signatures under state law. Specifically, the new laws—each of which were passed unanimously by both houses of the Arizona legislature—formally acknowledge the legality of certain electronic records and signatures for the purpose of “satisfy[ing] any law that requires a record to be in writing or to be retained or both.” S.B. 1084 further details the requirements that must be satisfied when creating, sending, and accepting electronic signatures or records in order to qualify for legal recognition under the new law. As previously reported in InfoBytes, Arizona also recently enacted H.B. 2417, which recognized blockchain signatures and smart contracts under state law.
- Daniel P. Stipano to discuss "Lessons learned: Integrating FinCEN’s CDD final rule into compliance programs" during an ACAMS webinar
- Jonice Gray Tucker to discuss "Trends in regulatory enforcement" at the American Bar Association Banking Law Committee Meeting
- Jessica L. Pollet to discuss "Your career is impacting your life..." at the Ark Group Women Legal Conference