Does Illinois law require that we maintain original signatures on escrow disclosures or HUD settlement statements? What about other documents? Do we need to save anything except for the original recorded mortgage and note?

Disclaimer: The Electronic Commerce Security Act (ECSA) was repealed and replaced with the Uniform Electronic Transaction Act (UETA), effective June 25, 2021. Please note that this change may affect the continued accuracy of this guidance as it pertains to the ECSA.

We do not believe that financial institutions need to retain hard copies of documents that are stored electronically, with the exception of the documents that you noted would be continued to be stored in tangible form (original loan agreements and mortgages), and any other documents recorded with a county recorder.

The Illinois Financial Institutions Electronic Documents and Digital Signature Act states that if a bank stores documents in electronic form in the regular course of business, then an electronic version of a document has “the same force and effect under the laws of this State as one comprised, recorded, or created on paper or other tangible form by writing, typing, printing, or similar means.” 205 ILCS 705/10(a). Similarly, the federal Electronic Signatures in Global and National Commerce (ESIGN) Act states that “a signature, contract, or other record . . . may not be denied legal effect, validity, or enforceability solely because it is in electronic form.” 15 USC 7001(a)(1).

The Illinois Electronic Commerce Security Act (“ECSA”) has more specific provisions regarding electronic documents. It states as a general rule that “information, records, and signatures shall not be denied legal effect, validity, or enforceability solely on the grounds that they are in electronic form.” 5 ILCS 175/5-110. However, that law has several exceptions, including “negotiable instruments and other instruments of title” (unless your electronic storage system “allows for the existence of only one unique, identifiable, and unalterable original with the functional attributes of an equivalent physical instrument, that can be possessed by only one person, and which cannot be copied except in a form that is readily identifiable as a copy”). 5 ILCS 175/5-115(b)(3)5-120(c)(3)5-125(c).

Importantly, ECSA provides for the admissibility of electronic records and electronic signatures into evidence in court proceedings. 5 ILCS 175/5-130. Where a rule of law specifically requires that certain records be retained, the law sets out three record retention requirements (5 ILCS 175/5-135):

(1) the electronic record and the information contained therein are accessible so as to be usable for subsequent reference at all times when such information must be retained;

(2) the information is retained in the format in which it was originally generated, sent, or received or in a format that can be demonstrated to represent accurately the information originally generated, sent or received; and

(3) such data as enables the identification of the origin and destination of the information, the authenticity and integrity of the information, and the date and time when it was sent or received, if any, is retained.

Also, you may find this OCC Advisory Letter helpful, as it discusses the federal E-SIGN Act and the legal risks that need to be taken into account when developing an electronic record retention policy.

The FFIEC has also released a number of resources related to electronic banking generally. The FFIEC IT Handbook on Compliance/Legal Risk summarizes all of the record keeping requirements that might apply in the electronic context, and the FFIEC Guidance on Electronic Financial Services and Consumer Compliance has a short paragraph on electronic record retention:

Record Retention

Record retention provisions apply to electronic delivery of disclosures to the same extent required for non-electronic delivery of information. For example, if the web site contains an advertisement, the same record retention provisions that apply to paper-based or other types of advertisements apply. Copies of such advertisements should be retained for the time period set out in the relevant regulation. Retention of electronic copies is acceptable.

Also, note that Fannie Mae and Freddie Mac impose their own requirements on the use of electronic signatures (see the Freddie Mac eMortgage Guide and the Fannie Mae eMortgage Guide). You also may find the Mortgage Banker Association’s eMortgage Closing Guide helpful as a source of guidance on best practices, though none of its recommendations are binding.