QUESTION
We are currently establishing system protocols for recording
confirmation of receipt of disclosure delivery when not provided in person. We
are concerned about receiving actual confirmation of receipt of disclosures from
the borrower more than 3 days after they are placed in the mail. Are we still
able to rely on the “mailbox” rule and delivery 3 days after being placed in
the mail or do we need to work off the date the consumer provides an actual,
albeit unsolicited confirmation?
ANSWER
TRID relies on the mailbox rule for purposes of determining when
disclosures delivered by mail or electronically are considered received by the
consumer. Disclosures placed in the mail or delivered electronically are
considered received 3 business days after delivery.
The Commentary to section 12 CFR 1026.19(1)(iv) regarding mail delivery
provides that if any disclosures required under § 1026.19(e)(1)(i) are not
provided to the consumer in person, the consumer is considered to have received
the disclosures three business days after they are delivered or placed in the
mail. The creditor may, alternatively, rely on evidence that the consumer
received the disclosures earlier than three business days. For example, if the
creditor sends the disclosures via overnight mail and the consumer signs for
receipt of the overnight delivery, the creditor could demonstrate that the
disclosures were received on the day of signature. Additional commentary addresses
electronic delivery and is similar to the above Comment.
The Commentary suggests the mailbox rule would supersede confirmations
received more than 3 business days after disclosures were mailed or delivered
electronically. It is important to ensure that your policies and procedures
state whether you employ the mailbox rule or actual consumer confirmation as
your method for determining when disclosures are received by the consumer. Also, make sure your system of record accurately
reflects the date disclosures are placed in the mail or delivered
electronically. And if for some reason you also retain consumer confirmations
received after the mailbox rule expiration period, document for purposes of
disclosure timing that you relied on the mailbox rule and not the date of the
confirmation.
Michael Goldhirsh
Executive Director/Vendors Compliance Group
Director/Legal & Regulatory Compliance
Lenders Compliance Group
Lenders Compliance Group
