Are we required to retain undeliverable mail that has been returned by the post office? If so, what kind of mail should we be retaining and for how long? We have read that if we can reproduce the mailing (such as an account statement) on request, then we can shred it immediately.

Disclaimer: The Electronic Commerce Security Act (ECSA) was repealed and replaced with the Uniform Electronic Transaction Act (UETA), effective June 25, 2021.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 are unaware of any recordkeeping requirements specifically for mail that has been sent to customers and returned as undeliverable.

Various recordkeeping requirements may apply to the contents of returned mail, such as disclosure requirements for disclosures sent under Regulation Z, adverse action letters sent under Regulation B, and privacy notices sent under Regulation P, among others. Due to those potential recordkeeping requirements, we recommend maintaining contemporaneous records of the dates and content of any returned mail. Retaining such documents in electronic form should be sufficient to establish compliance with any applicable notice or other delivery requirements. We also recommend attempting to contact your customer to determine if they have a new mailing address if you have not done so already.

For resources related to our guidance, please see:

Regulation Z, 12 CFR 1026.25(a) (“A creditor shall retain evidence of compliance with this part (other than advertising requirements under §§ 1026.16 and 1026.24, and other than the requirements under § 1026.19(e) and (f)) for two years after the date disclosures are required to be made or action is required to be taken. The administrative agencies responsible for enforcing the regulation may require creditors under their jurisdictions to retain records for a longer period if necessary to carry out their enforcement responsibilities under section 108 of the Act.”)

Regulation B, 12 CFR 1002.12(b)(1) (“For 25 months (12 months for business credit, except as provided in paragraph (b)(5) of this section) after the date that a creditor notifies an applicant of action taken on an application or of incompleteness, the creditor shall retain in original form or a copy thereof: (i) Any application that it receives, any information required to be obtained concerning characteristics of the applicant to monitor compliance with the Act and this part or other similar law, and any other written or recorded information used in evaluating the application and not returned to the applicant at the applicant’s request. (ii) A copy of the following documents if furnished to the applicant in written form (or, if furnished orally, any notation or memorandum made by the creditor): (A) The notification of action taken; and (B) The statement of specific reasons for adverse action; and (iii) Any written statement submitted by the applicant alleging a violation of the Act or this part.”)

Regulation B, 12 CFR 1002.12(b)(5) (“With regard to a business that had gross revenues in excess of $1 million in its preceding fiscal year, or an extension of trade credit, credit incident to a factoring agreement, or other similar types of business credit, the creditor shall retain records for at least 60 days after notifying the applicant of the action taken. If within that time period the applicant requests in writing the reasons for adverse action or that records be retained, the creditor shall retain records for 12 months.”)

Regulation P, 12 CFR 1016.9(e)(1) (“For customers only, you must provide the initial notice required by § 1016.4(a)(1), the annual notice required by § 1016.5(a), and the revised notice required by § 1016.8 so that the customer can retain them or obtain them later in writing or, if the customer agrees, electronically.”)

Electronic Signatures in Global and National Commerce (ESIGN) Act, 15 USC 7001(a) (“Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II), with respect to any transaction in or affecting interstate or foreign commerce — (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form. . . .”)

Financial Institutions Electronic Documents and Digital Signature Act, 205 ILCS 705/10(a) (“If in the regular course of business, a financial institution possesses, records, or generates any document, representation, image, substitute check, reproduction, or combination thereof . . . that accurately reproduces, comprises, or records the agreement, transaction, act, occurrence, or event . . . [it] shall have 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.”)

Electronic Commerce Security Act, 5 ILCS 175/5-110 (“Information, records, and signatures shall not be denied legal effect, validity, or enforceability solely on the grounds that they are in electronic form.”)

Electronic Commerce Security Act, 5 ILCS 175/5-115(a) (“Where a rule of law requires information to be ‘written’ or ‘in writing’, or provides for certain consequences if it is not, an electronic record satisfies that rule of law.”)