Banking Interpretations

NYSBL 597 and Supt. Regs. Part 410

From: Steven Barras
To: [ ]
Date: 05/12/05

Dear [ ]:

In response to your latest E-Mail, which clarified the question which you have asked this Department, I offer the following. Your question concerns the effect of Federal and New York E-Sign laws on "Part 38.8" of the Banking Department Regulations', which you indicate relates to record retention by mortgage bankers, mortgage brokers and exempt organizations. That Part has nothing to do with record retention and I assume that you are referring to Part 410.8 of the Superintendent's Regulations, which is right on point.

It appears to me that the Federal and New York E-Sign laws have little, if any, impact upon the provisions of Part 410.8. The reason for this is that the E-Sign laws authorize and empower government entities to accept and receive information by electronic means but they are not required to do so. Any information stored in electronic form by government entities is subject to the same confidentiality standards as information stored in paper form. As for records maintained on the premises of mortgage bankers and brokers and exempt organizations pursuant to Part 410.8, Section 597 of the Banking Law states that those entities may, if they so choose, maintain their books and records "in photographic form, including an optical disk storage system and ... use of electronic data processing equipment that provides comparable records to those otherwise required and which are available for examination upon request. The maintenance of books and records in accordance with the foregoing constitutes compliance with the provisions of Section 597 and Part 410.8 (assuming the detailed information required therein is satisfactorily retained).

I trust that I have been responsive to your inquiry.

Steven Barras
First Assistant Counsel