Freddie Mac Single-Family Seller/Servicer Guide 1401.3 — Electronic Signatures and Electronic Loan Documents
Freddie Mac Single-Family Seller/Servicer Guide section 1401.3 — Electronic Signatures and Electronic Loan Documents. Full verbatim section text, substring-verified against snapshot 5869ee9e606cd4ae.
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Verbatim provisions from Freddie Mac Single-Family Seller/Servicer Guide 1401.3 — Electronic Signatures and Electronic Loan Documents — each quote is a verified substring of the regulator-published source snapshot, not retyped. Quoted for reference; this is not legal advice. The operational layer (P&P updates, prompts) lives in the regulation update kits.
Freddie Mac Single-Family Seller/Servicer Guide 1401.3 — Electronic Signatures and Electronic Loan Documents
9 sections · 33,083 characters of verbatim text. Open a section to read it, or . Every section below is in the page source whether open or closed.
§This section contains information related to: ■ Electronic…514 ch
This section contains information related to: ■ Electronic Records and Electronic Signatures ■ Eligible Electronic Loan Documents – Retail Mortgages ■ Eligible Electronic Loan Documents – Wholesale Home Mortgages ■ Electronic Recording of paper Closing Documents and post-closing documents ■ Electronic Recording of Electronic Closing Documents ■ Electronically notarized (in person or remote online) Electronic documents ■ Remote Ink Notarization ■ Electronic Transactions conducted between Servicer and Borrower
aElectronic Records and Electronic Signatures Without limiting the…776 ch
(a) Electronic Records and Electronic Signatures Without limiting the definition of an Electronic Record set forth above, the term includes, by way of illustration only: ■ A facsimile (“fax”) machine copy of a paper Record ■ A fax machine copy of an Electronic Record ■ An e-mail ■ An e-mail with Electronic Record(s) attached ■ A scanned copy of a paper Record or Electronic Record ■ A paper Record converted into an Electronic Record Unless otherwise provided in the Guide or Seller/Servicer’s other Purchase Documents, an Electronic Signature includes an Electronic copy or representation of a written signature or other Electronic signing process (permitted or required by Freddie Mac) that is attached to or logically associated with a paper Record or Electronic Record.
bEligible Electronic Loan Documents – Retail Mortgages A Federally…1,468 ch
(b) Eligible Electronic Loan Documents – Retail Mortgages A Federally Regulated Seller/Servicer may sell Retail Mortgages to Freddie Mac that are originated using Electronic Loan Documents, excluding Mortgages with Electronic Notes (eNotes), set forth in Exhibit 7, Electronic Loan Documents, provided that the Seller: ■ Is and remains at all times a Federally Regulated Seller ■ Adopts, implements, manages, maintains, administers and updates minimum security standards for its Systems ■ Adopts, implements, manages, maintains and administers an initial (and annually thereafter) due diligence and certification process to certify that the Seller’s System complies with the Seller’s minimum security standards and E-SIGN and/or the UETA, as applicable ■ Maintains Records of its initial and annual due diligence and certification process so that such information may be reviewed by Freddie Mac at any time ■ Represents and warrants to, and covenants with, Freddie Mac that each Electronic Loan Document the Seller/Servicer creates and uses in the origination and closing processes (i) complies with all applicable federal and/or State laws and regulations, and (ii) is valid, enforceable and effective in accordance with the terms therein ■ Stores all such Electronic Loan Documents in accordance with the requirements of the Guide. If there is a Transfer of Servicing, the Seller must securely transfer all such Electronic Loan Documents to the Transferee Servicer.
cEligible Electronic Loan Documents – Wholesale Home Mortgages A…2,568 ch
(c) Eligible Electronic Loan Documents – Wholesale Home Mortgages A Federally Regulated Seller that has been expressly approved by Freddie Mac to sell Wholesale Home Mortgages to Freddie Mac in the Seller’s Purchase Documents may permit its Correspondents and/or Mortgage Brokers to create and use Electronic Loan Documents, as set forth in Exhibit 7, provided that the Seller: ■ Is and remains at all times a Federally Regulated Seller ■ Requires the Correspondents and/or Mortgage Brokers to adopt, implement, maintain and administer the Seller’s minimum security standards as set forth in Section 1401.2(c) ■ Requires its Correspondents and/or Mortgage Brokers to initially (and annually thereafter) certify to the Seller that the Correspondents and Mortgage Brokers Systems comply with the Seller’s minimum security standards and E-SIGN and/or the UETA, as applicable ■ Obtains an annual certification from each Correspondent and/or Mortgage Broker, duly signed by a Vice President or higher-ranking officer (or their equivalent), that certifies that the Systems that the Correspondents and/or Mortgage Brokers use comply with the Seller’s minimum security standards and E-SIGN and/or the UETA, as applicable ■ Requires its Correspondents and/or Mortgage Brokers to maintain Records of its initial and annual due diligence and certification processes so that such information may be reviewed by the Seller (or Freddie Mac) at any time ■ Requires its Correspondents and Mortgage Brokers to represent and warrant to, and covenant with, the Seller that each Electronic Loan Document that the Correspondent and/or Mortgage Broker creates and uses in the loan origination and/or closing processes (i) complies with all applicable federal and/or State laws and regulations, and (ii) is valid, enforceable and effective in accordance with the terms therein ■ Represents and warrants to, and covenants with, Freddie Mac that each Electronic Loan Document that the Correspondent and/or Mortgage Broker creates and uses in the loan origination and/or closing processes (i) complies with all applicable federal and/or State laws and regulations, and (ii) is valid, enforceable and effective in accordance with the terms therein ■ Requires its Correspondents and/or Mortgage Brokers to transfer such Electronic Loan Documents to the Seller and the Seller must receive and store all such Electronic Loan Documents in accordance with the requirements of the Guide and, if there is a Transfer of Servicing, the Seller must transfer such Loan Documents to the Transferee Servicer
dElectronic Recording of paper Closing Documents and post-closing…6,412 ch
(d) Electronic Recording of paper Closing Documents and post-closing documents (i) Eligibility for Electronic recording of paper Closing Documents and post-closing documents Mortgages that (i) have paper Closing Documents and paper post-closing documents, such as assignments of Mortgages and modification agreements (collectively, “Original Paper Document(s)” or “OPD(s)”) and (ii) that have been electronically recorded in the applicable local government land records recorder’s offices (“Recorder’s Office(s)”), in accordance with applicable law, are eligible for delivery and Servicing by the Seller/Servicer, provided that: ■ Such Mortgages were originated in States that permit Recorder’s Office(s) to: ❑ Provide Seller/Servicers with Electronic delivery access to the Recorder’s Office(s) to electronically record OPD(s) ❑ Return to Seller/Servicers, after recording, either Electronic or paper copies of the electronically recorded OPDs, with recording information therein and/or another form of Recorder’s Office(s) Electronic recording confirmation (“Recording Confirmation(s)”), with recording information therein ■ The Seller/Servicer agrees that it will promptly obtain, at the Seller/Servicer’s expense, Recorder’s Office(s) certified copies (paper or Electronic) of any electronically recorded OPD(s) whenever: ❑ Necessary for the Servicing of such Mortgages, and/or ❑ Required by Freddie Mac, in its sole discretion ■ The Seller/Servicer agrees that, as a Transferor Servicer, it will inform any prospective Transferee Servicer that certain Mortgages have OPD(s) that are Mortgage file documents that: ❑ Are stored electronically in the Seller/Servicer’s eStorage System (as defined in Section 1402.1(b)), and ❑ Would be electronically transferred to the Transferee Servicer’s eStorage System, if applicable, as part of any Transfer of Servicing, subject to the requirements in Section 7101.5(a)(1) under which the Transferor Servicer may be required to convert the documents and records to the form of storage used by the Transferee Servicer or generate paper copies of all documents and records for the Transferee Servicer ■ The promissory notes and any related modification agreements for all such Mortgages are original paper instruments that have been duly executed by Borrowers in pen and ink, with the related promissory notes duly endorsed in blank by the Seller/Servicer and the promissory notes and any related modification agreements delivered to the Document Custodian ■ The title insurers that issued title insurance policies for such Mortgages have not made any exceptions in the final title insurance policies with respect to the fact that the Security Instrument and/or any other OPD(s) were electronically delivered to and electronically recorded by the Recorder’s Office(s) ■ The Seller/Servicer represents and warrants to, and covenants with, Freddie Mac that: ❑ The Electronic recording and Electronic storage of Electronic copies of the OPD(s) will not in any way adversely affect the validity, enforceability or effectiveness of the OPD(s) ❑ The Electronic copies of the electronically recorded OPD(s) comply with all applicable laws, including, without limitation, E-SIGN and/or the UETA ❑ All OPD(s) that have been electronically recorded have: ■ Created valid First Liens on the applicable Mortgaged Premises, ■ Been copied as Electronic Records and the Seller/Servicer has securely stored, protected and maintained such Electronic Records, with recording information therein, in the Seller/Servicer’s eStorage System, and ■ Been delivered to the Document Custodian, as OPDs together with paper copies of electronically recorded OPD(s) with recording information therein, as applicable ■ The Seller/Servicer acknowledges and agrees that this Section 1401.3(d) applies to: ❑ Mortgages sold to Freddie Mac in which there are paper closing documents and/or paper post-closing documents that have been electronically recorded, and ❑ Mortgages serviced for Freddie Mac in which there are paper closing documents and/or paper post-closing documents that have been electronically recorded (ii) Delivery and storage requirements The Seller/Servicer must securely store and protect all Electronic copies of electronically recorded OPD(s) with recording information therein or Recording Confirmation(s) with recording information therein in the Seller/Servicer’s eStorage System and maintain the validity, effectiveness and enforceability of such Electronic Mortgage file documents for the life of each Mortgage plus seven years. The Seller/Servicer must comply with the following delivery and storage requirements for electronically recorded OPD(s): Delivery and storage requirements for electronically recorded OPD(s) If the Seller/Servicer receives back from the Recorder’s Office(s)… Then the Seller/Servicer must… Paper copies of the electronically recorded OPD(s), with recording information therein or Recording Confirmation(s) ■ If, under the Guide, the OPD(s) must be delivered to the Document Custodian, deliver such OPD(s) and paper copies of such electronically recorded OPD(s), with recording information therein or Recording Confirmation(s), to the Document Custodian, and ■ Store and maintain Electronic copies of the electronically recorded OPD(s), with recording information therein or Recording Confirmation(s), in the Seller/Servicer’s eStorage System for the life of each of the Mortgages plus seven years Electronic copies of the electronically recorded OPD(s), with recording information therein or Recording Confirmation(s) ■ If, under the Guide, the OPD(s) must be delivered to the Document Custodian, deliver such OPD(s) and Electronic copies of electronically recorded OPD(s), with recording information therein or Recording Confirmation(s), to the Document Custodian, and ■ Store and maintain Electronic copies of the electronically recorded OPD(s), with recording information therein or Recording Confirmation(s), in the Seller/Servicer’s eStorage System for the life of each of the Mortgages plus seven years Note: If the Seller/Servicer is required to deliver an Electronic copy of the document to the Document Custodian per requirements set forth above in this Section 1401.3(d) and the Document Custodian is not able to receive Electronic copies of the documents, Seller/Servicer must deliver a paper copy of the document to the Document Custodian.
eElectronic Recording of Electronic Closing Documents (i)…6,927 ch
(e) Electronic Recording of Electronic Closing Documents (i) Eligibility for Electronic recording of Electronic closing documents Mortgages that have (i) “electronically created closing documents,” such as Security Instruments and other electronically created closing document(s) and “electronically created post-closing documents”, such as assignments of Mortgages and eModification Agreements (collectively, “Electronically Created Document(s)” or “ECD(s)”), and (ii) been electronically recorded in the applicable local government land records recorder’s offices (“Recorder’s Office(s)”) in accordance with applicable law are eligible for delivery and Servicing by the Seller/Servicer, provided that: ■ Such Mortgages were originated in States that permit Recorder’s Office(s) to: ❑ Provide Seller/Servicers with Electronic delivery access to the Recorder’s Office(s) to electronically record ECD(s), and ❑ Return to Seller/Servicers Electronic or paper copies of: ■ The electronically recorded ECDs with recording information therein, and/or ■ Other form of Recorder’s Office(s) Electronic recording confirmations (“Recording Confirmation(s)”) with recording information therein ■ The Seller/Servicer represents and warrants to, and covenants with, Freddie Mac that: ❑ The Electronic recording and Electronic storage of Electronic copies of the electronically recorded ECD(s) will not in any way adversely affect the validity, enforceability and effectiveness of the ECD(s), ❑ Each electronically created Security Instrument and each eModification Agreement has been duly electronically recorded and creates a valid, effective and enforceable First Lien on each applicable Mortgaged Premises, ❑ Each eModification Agreement complies with the applicable requirements of Chapter 9206, ❑ Each electronic power of attorney complies with the applicable requirements of Chapter 6301, ❑ All other ECD(s) have been duly electronically recorded, as required, and are valid, effective and enforceable, ❑ All ECD(s) that are Mortgage file documents are securely stored, protected and maintained with recording information therein in the Seller/Servicer’s eStorage System (as defined in Section 1402.1(b)), ❑ ECD(s) that are custodial file documents have been copied on paper and the paper copies with recording information therein have been delivered to the Document Custodian, and ❑ The Electronic copies of the electronically recorded ECD(s) comply with all applicable laws, including, but not limited to, E-SIGN and/or UETA ■ The Seller/Servicer promptly obtains, at the Seller/Servicer’s expense, Recorder’s Office(s) certified copies (paper or Electronic) of Security Instruments and other electronically recorded ECD(s) whenever: ❑ Necessary for the Servicing of such Mortgages, and/or ❑ Required by Freddie Mac, in its sole discretion ■ The Seller/Servicer agrees that, as Transferor Servicer, it will inform any prospective Transferee Servicer that certain Mortgages have ECD(s) that are Mortgage file documents that: ❑ Are stored electronically in the Seller/Servicer’s eStorage System, and ❑ Would be electronically transferred to the Transferee Servicer’s eStorage System, if applicable, as part of any Transfer of Servicing, subject to the requirements in Section 7101.5(a)(1) under which the Transferor Servicer may be required to convert the documents and records to the form of storage used by the Transferee Servicer or generate paper copies of all documents and records for the Transferee Servicer ■ The promissory notes for all such Mortgages are original paper instruments that have been signed by Borrowers in pen and ink, duly endorsed in blank by the Seller/Servicer and delivered to the Document Custodian ■ The title insurers that issued title insurance policies for such Mortgages have not made any exceptions in the final title insurance policies with respect to fact that the Electronic Security Instruments or other ECD(s) have been electronically delivered to and electronically recorded by the Recorder’s Office(s) ■ The Seller/Servicer acknowledges and agrees that this Section 1401.3(e) applies to Mortgages that have been: ❑ Sold to Freddie Mac in which there are electronically created Closing Documents and/or post-closing documents that have been electronically recorded, and ❑ Serviced for Freddie Mac in which there are electronically created Closing Documents and/or post-closing documents that have been electronically recorded (ii) Storage and delivery requirements The Seller/Servicer must securely store and protect all ECD(s) and Electronic copies of electronically recorded ECD(s) with the recording information therein or Recording Confirmation(s) with the recording information therein in the Seller/Servicer’s eStorage System and maintain the validity, effectiveness and enforceability of such Electronic Mortgage file documents for the life of each such Mortgage plus seven years. The Seller/Servicer must comply with the following delivery and storage requirements for electronically recorded ECD(s): Delivery and storage requirements for electronically recorded ECD(s) If the Seller/Servicer receives back from the Recorder’s Office(s)… Then the Seller/Servicer… Paper copies of the electronically recorded ECD(s) with recording information therein or Recording Confirmation(s) ■ If, under the Guide, the ECD(s) must be delivered to the Document Custodian, deliver the Electronic copies of ECD(s) and Electronic scanned copies of the electronically recorded ECD(s), with recording information therein or Recording Confirmation(s), to the Document Custodian, and ■ Store and maintain Electronic copies of the electronically recorded ECD(s), with recording information therein or Recording Confirmation(s), in the Seller/Servicer’s eStorage System for the life of each of the Mortgages plus seven years Delivery and storage requirements for electronically recorded ECD(s) If the Seller/Servicer receives back from the Recorder’s Office(s)… Then the Seller/Servicer… Electronic copies of the electronically recorded ECD(s) with recording information therein or Recording Confirmation(s) ■ If, under the Guide, the ECD(s) must be delivered to the Document Custodian, deliver the Electronic copies of ECD(s) and Electronic copies of the electronically recorded ECD(s), with recording information therein or Recording Confirmation(s), to the Document Custodian, and ■ Store and maintain Electronic copies of the electronically recorded ECD(s), with recording information therein or Recording Confirmation(s), in the Seller/Servicer’s eStorage System for the life of each of the Mortgages plus seven years Note: If the Seller/Servicer is required to deliver an Electronic copy of the document to the Document Custodian and the Document Custodian is not able to receive Electronic copies of the documents, Seller/Servicer must deliver a paper copy of the document to the Document Custodian.
fElectronically Notarized (In-Person or Remote Online) Electronic…7,075 ch
(f) Electronically Notarized (In-Person or Remote Online) Electronic Documents Mortgages in which in-person Electronic Notarization or Remote Online Notarization was used in connection with the Electronic Security Instrument, other Electronic closing Documents (“Electronic Closing Documents”) and/or Electronic assignments and other postclosing documents (“Electronic Post-Closing Documents”) are eligible for purchase by Freddie Mac, provided that: ■ The signers’ Electronic Signatures are attached to or logically associated with the Electronic Closing Documents and/or Electronic Post-Closing Documents, as applicable ■ The notary public is licensed and domiciled in the State in which the Mortgaged Premises is located and the Electronic Notarization law was enacted or, with respect to Remote Online Notarization, each notary public must be located in a State that authorizes licensed notaries to engage in Remote Online Notarization and must be licensed in that State to engage in Remote Online Notarization ■ The final title insurance policy does not make any exceptions regarding the fact that the Electronic Closing Document(s) and/or Electronic Post-Closing Documents have been electronically created, executed, witnessed and, if applicable, notarized electronically in person or remotely and electronically recorded ■ The Seller delivers the recorded document with the recording information therein to the Document Custodian ■ The Seller represents and warrants to, and covenants with, Freddie Mac that each (i) Electronic Security Instrument that has been electronically signed, notarized electronically in person or remotely and recorded is a valid, effective and enforceable First Lien, and (ii) any other Electronic Closing Document and Electronic Post-Closing Document that has been electronically signed, electronically (in person or remotely) notarized and recorded is a valid, effective and enforceable document ■ The Seller represents and warrants to, and covenants with, Freddie Mac that each Electronic Closing Document and Electronic Post-Closing Document that has been electronically signed, electronically (in person or remotely) notarized and recorded complies with the UETA and/or E-SIGN, as applicable ■ The system used for the Remote Online Notarization meets the following minimum standards: ❑ The system includes at least two-factor identity authentication, including using a government-issued photo ID that has a signature, credential analysis and identityproofing, ❑ Notarized documents are tamper-sealed, and system security is sufficient to (a) prevent interference with the authenticity, integrity and security of the notarial ceremony or corruption or loss of the recording of the same, and (b) protect the communication technology, electronic record and backup record from unauthorized use, ❑ The remote online notary keeps a secure electronic journal of the notarial act, including evidence of identity of the principal (a video and audio conference can be the basis for satisfactory evidence of identification), and maintains a backup of the electronic record, and ❑ The system includes recording of the notarial ceremony with storage for greater of (a) the minimum period required by applicable laws of the State in which the notary is licensed, or (b) 10 years, with the system providers making arrangements with participating notaries to provide access to Sellers and current and future Servicers In addition, Mortgages closed using the Remote Online Notarization process must meet the following requirements: ■ The Mortgaged Premises must be located in one of the States listed in Exhibit 48, Permitted States for Remote Online Notarization ■ The Mortgages must not be Texas Equity Section 50(a)(6) Mortgages ■ If the Borrower and the Mortgaged Premises are located in a State different from the State in which the notary public is licensed and located, the State law in the State where the notary public is licensed and located must authorize the notary public to engage in such interstate Remote Online Notarization transactions ■ The signers’ Electronic Signatures are remotely, electronically notarized using a system meeting the minimum technical standards listed above in this section ■ The Seller must record the electronically signed and remotely, electronically notarized Closing Documents and/or Post-Closing Documents in the applicable public land records recorder’s office, in compliance with the requirements of the Guide. If necessary for enforcement or upon Freddie Mac’s request, the current Servicer must obtain access to the recording of the notarial ceremony for greater of (a) the minimum period required by laws of the State in which the notary is licensed, or (b) 10 years. ■ If Borrowers request other notary options that are permitted by a State where the Borrower and the Mortgaged Premises are located, the Seller must not require Remote Online Notarization ■ The Seller represents and warrants to, and covenants and agrees with, Freddie Mac that it has confirmed that all documents that are electronically created, executed, notarized and recorded: ❑ Comply with all applicable laws, regulations and rules of each State that permits Remote Online Notarization and the State in which the Mortgaged Premises is located, and ❑ Are recordable in the public land records of the State in which the Mortgaged Premises is located ■ The Seller must deliver ULDD Data Point Remote Online Notarization Indicator (Sort ID 398.2) in compliance with Section 6302.5 ■ The Seller must promptly advise Freddie Mac of any adverse events that arise (actual or threatened legal action(s), governmental official statements, attorneys general opinions or announcements, enacted or filed legislation, State or federal court decisions) of which Seller becomes aware in the normal course of business which may have an adverse effect on interstate Remote Online Notarization, as contemplated in this section ■ In the event the Seller wishes to include the seller of the Mortgaged Premises in the Electronic Closing process, the Seller must comply with the following: ❑ The Borrower and the seller of the Mortgaged Premises must give their individual, specific and express Electronic consent to their respective Electronic Signatures on an Electronic warranty deed and other purchase and sale documents, ❑ The title insurer must insure the validity, enforceability and effectiveness of the Electronic warranty deed, ❑ The use of Electronic warranty deeds and other purchase and sale documents must be permitted under the law of the State in which the Mortgaged Premises is located, ❑ The Electronic warranty deed must be recorded in the local recorder’s office in the State in which the Mortgaged Premises is located, ❑ Long-term storage of the electronically recorded Electronic warranty deeds must be approved by the title insurer, Borrower and seller of the Mortgaged Premises, and ❑ All such Electronic warranty deeds and other closing documents must comply with ESIGN and/or the applicable UETA and all other applicable laws
gRemote Ink Notarization Mortgages with Closing Documents or…2,588 ch
(g) Remote Ink Notarization Mortgages with Closing Documents or Pre-Closing Documents that have been notarized using audio-visual technology to facilitate an ink-signed notarization of an ink-signed paper document (a Remote Ink Notarization or “RIN”) are eligible for purchase by Freddie Mac, provided that: ■ The RIN process has been expressly authorized under applicable law ■ The notary public is licensed and domiciled in the State in which the Mortgaged Premises is located and the RIN law was enacted ■ The RIN process 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 ■ The Mortgage is not a Texas Equity Section 50(a)(6) Mortgage ■ The final title insurance policy does not make any exceptions regarding the fact that the document was notarized using a RIN process ■ All documents notarized using a RIN process are recordable in the public land records of the State in which the Mortgaged Premises is located ■ The Seller makes all representations and warranties in the Guide related to validity, enforceability and lien priority, including that each Mortgage using a RIN process is a valid, effective and enforceable First Lien on the Mortgaged Premises ■ The RIN process and any audio-visual communication technology used meets the following minimum standards: ❑ At least two-factor identity authentication, including using a government-issued photo ID that has a signature, credential analysis and identity-proofing ❑ System security sufficient to: (A) prevent interference with the authenticity, integrity and security of the notarial ceremony or corruption or loss of the recording of the same, and (B) protect the communication technology ❑ A secure electronic journal of the notarial act, including evidence of identity of the principal and a backup of the electronic record ❑ Recording of the notarial ceremony with storage for greater of (a) the minimum period required by applicable laws of the State in which the notary is licensed, or (b) 10 years ❑ The notarial certificate (acknowledgment) on the notarized document that includes an indication that communication technology was used in the notarization process ■ The Seller must deliver ULDD Data Point Investor Feature Identifier “J95” in compliance with Section 6302.5 Note: The RIN process to which this section applies should not be confused with Remote Online Notarization covered in Section 1401.3(f), as Remote Online Notarization is electronic notarization of electronically signed documents.
hElectronic Transactions conducted between Servicer and Borrower…4,755 ch
(h) Electronic Transactions conducted between Servicer and Borrower In lieu of using paper documents, such as Form 710, Mortgage Assistance Application, explanation letters, modification agreements, solicitation letters, evaluation notices and other forms and documents in connection with consideration for a reinstatement, relief or workout option as required in Chapters 9102, 9201, 9203, 9204 and 9206 (documents referred to as “loss mitigation documents”), the Servicer may either: ■ Mail, fax or electronically transmit copies of the loss mitigation documents (excluding letters a Borrower must provide) to a Borrower or permit a Borrower to copy, print or download a copy of the loss mitigation documents via a secure Servicer-provided internet website and permit the Borrower to complete, sign and fax copies (or e-mail copies) of the signed loss mitigation documents to the Servicer (note: under some State laws, an individual may not be required to transmit his/her Social Security number over an unsecured Electronic channel), or ■ Give the Borrower a secure means of access through which a Borrower may prepare and electronically sign loss mitigation documents (including letters a Borrower must provide) and submit them to Servicer In the event the Servicer permits Borrowers to provide any of the loss mitigation documents as Electronic Records, the Servicer: ■ May create an Electronic substitute for Form 710 and any other required forms, provided that the information requested is the same information requested on Form 710 and the other required forms ■ Must comply with all applicable requirements in the Guide and other Purchase Documents, including, but not limited to, Chapters 1401 and 1402 and Section 9206.4(d) ■ Must consult with its legal counsel to determine that the Servicer’s use of fax and/or other Electronic copies of loss mitigation documents, complies with the requirements ESIGN and/or UETA, as enacted in the jurisdiction in which the property securing each Mortgage is located, as applicable, and all other applicable laws ■ Must use security measures, processes and procedures that protect the confidentiality and privacy of the Borrowers’ personal and financial information in accordance with all applicable laws, including, without limitation, the Gramm-Leach-Bliley Act and its implementing regulations ■ Must securely store and maintain all such Electronic Records for the same period of time as required by the Guide and other applicable Purchase Documents for paper forms and other loss mitigation documents ■ Represents and warrants to Freddie Mac that the loss mitigation documents prepared, signed and submitted by a Borrower electronically are authentic and enforceable against the Borrower ■ Must provide Borrowers with fax numbers, e-mail addresses, website addresses and/or other Electronic transmission destinations specifically dedicated to the secure receipt and, if applicable, storage of such Electronic Records The Servicer acknowledges and agrees that Freddie Mac’s above consent to the Servicer’s conducting Electronic Transactions with Borrowers is limited to Electronic Transactions and communications between the Servicer and Borrowers in connection with the preparation, execution and submission of loss mitigation documents. The Servicer must continue to provide loss mitigation documents and information to Freddie Mac in the manner required by the Guide and other Purchase Documents. The Servicer may not permit Borrowers to submit any loss mitigation documents directly to Freddie Mac electronically without Freddie Mac’s express written or Electronic consent. Servicers must obtain a Borrower’s express consent in accordance with E-SIGN before permitting a Borrower to use Electronic Records and Electronic Signatures for: ■ The execution and/or delivery of any loss mitigation documents ■ Communications or other Servicing documents. Servicers must continue to provide and accept all loss mitigation documents on paper for Borrowers who choose not to use Electronic Records and Electronic Signatures. Under no circumstances may a Borrower be required to use Electronic Records and Electronic Signatures. In addition, the Servicer acknowledges and agrees that the provisions of section 101 of ESIGN (which permits the use of Electronic Signatures and Electronic Records) do not apply to any notice of default, acceleration, repossession, foreclosure or eviction or the right to cure, under a credit agreement secured by, or a rental agreement for, a primary residence of an individual. Accordingly, all such notices must be in writing and delivered in accordance with otherwise applicable State and/or federal law to Borrowers and all individuals on the title to the Mortgaged Premises.
Operationalizing Freddie Mac Single-Family Seller/Servicer Guide 1401.3 — Electronic Signatures and Electronic Loan Documents
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