This topic contains information on electronic records, including:
All documents used to originate, service or modify a loan, may be generated, signed, processed, stored or transmitted electronically, provided they are capable of reproduction in paper format except:
the promissory note and any related addenda (unless the seller has received special approval to deliver electronic notes (eNotes));
any unrecorded ink-signed originals of documents that modify or supplement the security instrument;
assignments for MERS-registered loans when MERS is not named as nominee; and
unrecorded assignments of loans to Fannie Mae (if the loan is not registered with MERS and the seller, servicer, or document custodian is holding the assignment as a custodial document).
The following table describes Fannie Mae’s requirements for electronic records. An electronic record is a contract or other record that is created, generated, sent, communicated, received, or stored by electronic means. A record is information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
|GENERAL REQUIREMENTS FOR ELECTRONIC RECORDS|
|Permitted format, transmission method and storage protocol||
|Compliance with ESIGN, UETA, and applicable laws||All electronic records and systems used to
generate, process, store or transmit electronic records must comply
|Enforceability and Accuracy||All electronic records must be valid and enforceable and accurately reflect all information and formatting (where the formatting is prescribed by law or material to interpretation of the record) that was in the record as it was presented to intended beneficiaries and signers.|
|System Requirements||All systems generating or storing electronic
See below for additional system requirements that apply to remote online notarizations.
|Conversion of documents||Sellers/servicers may convert a paper
document to an electronic record for storage purposes if it is not one
of the documents required to be maintained in its original paper
form. Sellers/servicers may destroy the paper document.
Similarly, a seller/servicer may convert an electronic
record to a paper document for storage purposes or to provide loan
modifications to document custodians that are not electronically enabled.
For purposes of the preceding table, “electronic records” do not include eNotes. Sellers and servicers are required to obtain special approval in order to deliver or service eNotes. Servicers of eNotes must use an electronic note vault that:
integrates with the MERS eRegistry and MERS eDelivery;
allows systems integration among the servicer, Fannie Mae, and MERS; and
can distinguish between the Authoritative Copy of the eNote and other copies.
Products that require additional or special purpose legal documents are not eligible for delivery as eNotes. See B8-5-01, General Information on Special-Purpose Legal Documents and the Guide to Delivering eMortgage Loans to Fannie Mae for additional information.
Sellers/servicers may use any form of electronic signature on an electronic record that is valid under applicable law except audio and video recordings, as long as the signature is attached to or logically associated with the record intended to be signed. From time to time, Fannie Mae may require a seller/servicer to use a specific signature format for a particular electronic record or type of record.
The following table describes Fannie Mae’s requirements for electronic signatures.
|ELECTRONIC SIGNATURE REQUIREMENTS|
|Compliance with ESIGN, UETA, and applicable laws||All electronic signatures, electronic signature systems,
and software must comply with, and be enforceable under
|Attribution and Evidence||All electronic signatures must be attributable
to an identified signer.
When a record is electronically signed, the seller/servicer must retain, for each electronic signature, evidence of the following:
For electronically-signed records for loans purchased or securitized by Fannie Mae, this evidence and documentation must be sufficient to enable Fannie Mae to conduct a thorough quality control review of the loan. For example, the evidence of the borrower’s signature with respect to a verification of employment must allow Fannie Mae the ability to request and receive a reverification of the information from the borrower’s employer.
Fannie Mae accepts delivery and servicing of loans with electronic documents, including security instruments or mortgage loan modification agreements that have been electronically notarized, either in person or remotely using real-time, two-way audio/video communication. Electronic notarizations (including remote online notarizations) may be used with eMortgage transactions as long as the notarization is
performed in accordance with and is legally valid under the laws and regulations of the state in which the notarization is performed at the time it was performed; and
in compliance with the Uniform Electronic Transactions Act, as adopted in such state, and the Electronic Signatures in Global and National Commerce Act.
A lender may not require a borrower to use remote notarization and must have other notary options available for borrowers upon request.
A remote online notarization is an electronic notarization where the person whose signature is being notarized and the notary are in different physical locations and are communicating via two-way audio-visual conferencing, the signatures are provided electronically, and the notarial seal is applied electronically.
In addition to the above requirements, the following requirements apply to remote online notarization:
|The notary public is licensed and physically located in the state where the notarial act occurred and, where required by law or regulation, is specifically licensed to perform electronic notarizations.|
|If the loan document is required to be recorded, then the county recorder in the state and county where the property is located must accept the remotely notarized document for recording.|
|The system used for the remote online notarization
must meet the following minimum standards:
|The lender must maintain, or cause to be retained, the recording of the notarial ceremony for the greater of 10 years or the minimum period required by applicable law, in accordance with the requirements above.|
|If the remotely notarized document is a security instrument or amendment to the security instrument, the loan must be delivered with SFC 861.|
|The mortgage loan is not a Texas Section 50(a)(6) loan.|
|If the notarized document is a security instrument or an amendment to a security instrument, the remote online notarization must comply with the title requirements in B7-2-04, Special Title Insurance Coverage Considerations and the title insurance company may not take any exception with respect to any element of the loan being remotely notarized.|
All selling representations and warranties continue to apply, including those related to
clear title and first lien enforceability;
compliance with laws and responsible lending practices, and
requirements regarding title insurance, including those in B7-2-04, Special Title Insurance Coverage Considerations.
In addition to the above requirements, the subject property must be in a state in the following table:
|LIST OF STATES|
|Colorado||Illinois||Michigan||New Mexico||South Carolina||Wisconsin|
|Connecticut||Indiana||Minnesota||New York||South Dakota||Wyoming|
|District of Columbia||Kansas||Montana||North Dakota||Texas|
If the subject property is not in a state listed above, loan documents notarized using remote online notarization will be permitted if the state
adopts a law that expressly permits the use of remote online notarization, or
accepts (either through state law or through the application of an express federal law) remote online notarizations performed out-of-state in accordance with the laws of the state in which the notarial act is performed.
Electronic records may be delivered and electronic signatures may be provided by the seller, servicer, or Fannie Mae (or by a third party, when one is involved) as part of a transaction between them.
Every seller/servicer consents to the use of electronic records and signatures in its transactions with Fannie Mae and intends to be bound by the electronic signatures of its representatives as if they were ink signatures on paper.
The following table describes Fannie Mae’s requirements for electronic transactions with Fannie Mae.
|REQUIREMENTS FOR ELECTRONIC TRANSACTIONS WITH FANNIE MAE|
|Transaction-specific Requirements||If Fannie Mae requires the seller/servicer to conduct one or more electronic transactions, or a particular kind of transaction, in a particular way (e.g., specific format, signature process or method of delivery), the seller/servicer must conduct the transaction(s) accordingly. However, the seller/servicer is bound by the electronic transaction(s) even if not conducted in an authorized manner.|
|Responsibilities of Sellers/Servicers||
|Time of Receipt||
When a seller/servicer electronically engages in a mortgage transaction with a borrower, the seller and the servicer must fulfill all requirements of Section 101(c) of ESIGN to create a binding electronic record or a binding electronic signature with a consumer. Each seller/servicer must retain evidence of its compliance with this requirement.
Under no circumstances may a borrower be required to use electronic records and electronic signatures. For a borrower who chooses not to use electronic records and electronic signatures, the seller/servicer must continue to provide and accept all such documents on paper.
When the servicer issues any disclosure electronically, the individual mortgage loan file also must include evidence of:
any required disclosures made before obtaining the borrower’s consent,
the borrower’s consent to receiving subsequent disclosure electronically, and
evidence of how the servicer “reasonably demonstrated” the borrower’s ability to receive the disclosures for which the consent was provided.
The servicer must not electronically issue a notice of default, acceleration, repossession, foreclosure, eviction or the right to cure to a borrower.
The seller/servicer is required to retain a copy of an electronically executed sales contract, if applicable.