E-Signatures and Electronic Loan Documentation in Real Estate Finance: ESIGN and UETA, Interplay With UCC

Enforceability, Authentication, and Admissibility; MERS and Transferability

Recording of a 90-minute premium CLE webinar with Q&A

Conducted on Thursday, February 13, 2020

Recorded event now available

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Program Materials

This CLE webinar will examine the legality of electronic signatures and digital documents generally, as well as recent developments in using eNotes and other electronic mortgage loan documentation. The panel will discuss the Electronic Signatures in Global and National Commerce (ESIGN) Act, Uniform Electronic Transactions Act (UETA), the MERS registry, and legal and practical issues, including the authentication of electronic signatures, transferability, and the admissibility of eNotes in litigation.

Description

The use of eNotes and other electronic loan documentation is now routine in residential mortgage lending and is gaining more acceptance in commercial real estate lending. The industry is gradually moving toward the digital transformation of the mortgage lifecycle: application, closing, documentation, notarization, recording, and securitization.

ESIGN and UETA establish the legality of electronic records and signatures, and MERS provides a platform for filing and tracking transfers of "control" of real estate notes from one party to another. However, electronic documents must comply with the UCC and recording statutes (which might require a paper original of the mortgage) and other applicable state laws.

If litigation ensues surrounding electronic loan documents, counsel must understand and address issues related to enforceability, authentication, and admissibility of electronic communications and e-signatures.

Listen as our authoritative panel discusses the use of eNotes and electronic loan documentation in commercial and residential mortgage lending. The program will also examine legal and practical issues regarding transferability, UCC perfection, the authentication of electronic signatures, and the admissibility of electronic communications and e-signatures in litigation.

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Outline

  1. Introduction to ESIGN and UETA
  2. Electronic signatures: what are they?
  3. Remote notarization
  4. Pre-electronic signature law: esuring validity
  5. MERS: mortgage industry infrastructure established to support eNotes
  6. Creating and transferring ownership of eNotes
  7. Post-closing: the role of the document custodian for electronic files
  8. State law concerns: UCC and recordable instruments
  9. Admissibility of electronic signatures and documents into evidence

Benefits

The panel will review these and other key issues:

  • What are the legal issues surrounding electronic signatures?
  • What is the interplay between ESIGN and UETA and the UCC, and how does this impact various agreements of the loan package?
  • What is the role of MERS and the custodian, and can electronic mortgages be recorded?
  • What enforceability, authentication, and admissibility challenges do counsel face in litigation involving electronic loan documents?

Faculty

Israni, Ankush
Ankush R. Israni
Attorney
Stroock & Stroock & Lavan LLP

Mr. Israni advises on a broad range of commercial real estate matters, including joint ventures, senior debt and...  |  Read More

Tsygankov, Andrei
Andrei D. Tsygankov
Partner
Bekiares Eliezer LLP

Mr. Tsygankov’s primary specialization is Mergers & Acquisitions, Corporate Law, and Intellectual Property...  |  Read More

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