CHAPTER 41 —CONSUMER CREDIT PROTECTION
SUBCHAPTER I—CONSUMER CREDIT COST DISCLOSURE
Part A—General Provisions
Part B—Credit Transactions
Part C—Credit Advertising
Part D—Credit Billing
Part E—Consumer Leases
SUBCHAPTER II—RESTRICTIONS ON GARNISHMENT
SUBCHAPTER II–A—CREDIT REPAIR ORGANIZATIONS
SUBCHAPTER III—CREDIT REPORTING AGENCIES
SUBCHAPTER IV—EQUAL CREDIT OPPORTUNITY
SUBCHAPTER V—DEBT COLLECTION PRACTICES
SUBCHAPTER VI—ELECTRONIC FUND TRANSFERS
Chapter Referred to in Other Sections
This chapter is referred to in title 11 section 523.
SUBCHAPTER I—CONSUMER CREDIT COST DISCLOSURE
Subchapter Referred to in Other Sections
This subchapter is referred to in
Part A—General Provisions
§1601. Congressional findings and declaration of purpose
(a) Informed use of credit
The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices.
(b) Terms of personal property leases
The Congress also finds that there has been a recent trend toward leasing automobiles and other durable goods for consumer use as an alternative to installment credit sales and that these leases have been offered without adequate cost disclosures. It is the purpose of this subchapter to assure a meaningful disclosure of the terms of leases of personal property for personal, family, or household purposes so as to enable the lessee to compare more readily the various lease terms available to him, limit balloon payments in consumer leasing, enable comparison of lease terms with credit terms where appropriate, and to assure meaningful and accurate disclosures of lease terms in advertisements.
(
Amendments
1976—
1974—
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1974 Amendment
For effective date of amendment by
Effective Date
Section 504(a) of
Short Title of 1999 Amendment
Short Title of 1998 Amendment
Short Title of 1996 Amendment
Short Title of 1995 Amendments
Short Title of 1994 Amendment
Short Title of 1992 Amendment
Short Title of 1988 Amendments
Short Title of 1981 Amendment
Short Title of 1980 Amendment
Short Title of 1976 Amendments
Section 1 of
Section 1(c) of
Short Title of 1974 Amendment
Section 301 of title III of
Short Title
Section 1 of
Section 101 of title I of
Section 401 of title IV of
Section 601 of title VI of
Section 709 of title VII of
Section 801 of title VIII of
Section 901 of title IX of
Severability
Section 501 of
Federal Reserve Study of Home Equity Lending and Appropriate Interest Rate Index
"(1) whether a consumer engaging in an open end credit transaction (as defined in section 103 of the Truth in Lending Act [
"(2) whether a more appropriate interest rate index exists for purposes of subparagraph (A) of section 103(aa)(1) of the Truth in Lending Act (as added by section 152(a) of this Act [
Hearings on Home Equity Lending
"(a)
"(b)
Study by Federal Reserve Board of Governors Covering Effect of Charge Card Transactions Upon Card Issuers, Merchants, and Consumers
Inference of Legislative Intent in Section Captions and Catchlines
Section 502 of
Grammatical Usages
Section 503 of
"(1) The word 'may' is used to indicate that an action either is authorized or is permitted.
"(2) The word 'shall' is used to indicate that an action is both authorized and required.
"(3) The phrase 'may not' is used to indicate that an action is both unauthorized and forbidden.
"(4) Rules of law are stated in the indicative mood."
§1602. Definitions and rules of construction
(a) The definitions and rules of construction set forth in this section are applicable for the purposes of this subchapter.
(b) The term "Board" refers to the Board of Governors of the Federal Reserve System.
(c) The term "organization" means a corporation, government or governmental subdivision or agency, trust, estate, partnership, cooperative, or association.
(d) The term "person" means a natural person or an organization.
(e) The term "credit" means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment.
(f) The term "creditor" refers only to a person who both (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness or, if there is no such evidence of indebtedness, by agreement. Notwithstanding the preceding sentence, in the case of an open-end credit plan involving a credit card, the card issuer and any person who honors the credit card and offers a discount which is a finance charge are creditors. For the purpose of the requirements imposed under part D of this subchapter and
(g) The term "credit sale" refers to any sale in which the seller is a creditor. The term includes any contract in the form of a bailment or lease if the bailee or lessee contracts to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the property and services involved and it is agreed that the bailee or lessee will become, or for no other or a nominal consideration has the option to become, the owner of the property upon full compliance with his obligations under the contract.
(h) The adjective "consumer", used with reference to a credit transaction, characterizes the transaction as one in which the party to whom credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, or household purposes.
(i) The term "open end credit plan" means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time.
(j) The term "adequate notice," as used in
(k) The term "credit card" means any card, plate, coupon book or other credit device existing for the purpose of obtaining money, property, labor, or services on credit.
(l) The term "accepted credit card" means any credit card which the cardholder has requested and received or has signed or has used, or authorized another to use, for the purpose of obtaining money, property, labor, or services on credit.
(m) The term "cardholder" means any person to whom a credit card is issued or any person who has agreed with the card issuer to pay obligations arising from the issuance of a credit card to another person.
(n) The term "card issuer" means any person who issues a credit card, or the agent of such person with respect to such card.
(o) The term "unauthorized use," as used in
(p) The term "discount" as used in
(q) The term "surcharge" as used in this section and
(r) The term "State" refers to any State, the Commonwealth of Puerto Rico, the District of Columbia, and any territory or possession of the United States.
(s) The term "agricultural purposes" includes the production, harvest, exhibition, marketing, transportation, processing, or manufacture of agricultural products by a natural person who cultivates, plants, propagates, or nurtures those agricultural products, including but not limited to the acquisition of farmland, real property with a farm residence, and personal property and services used primarily in farming.
(t) The term "agricultural products" includes agricultural, horticultural, viticultural, and dairy products, livestock, wildlife, poultry, bees, forest products, fish and shellfish, and any products thereof, including processed and manufactured products, and any and all products raised or produced on farms and any processed or manufactured products thereof.
(u) The term "material disclosures" means the disclosure, as required by this subchapter, of the annual percentage rate, the method of determining the finance charge and the balance upon which a finance charge will be imposed, the amount of the finance charge, the amount to be financed, the total of payments, the number and amount of payments, the due dates or periods of payments scheduled to repay the indebtedness, and the disclosures required by
(v) The term "dwelling" means a residential structure or mobile home which contains one to four family housing units, or individual units of condominiums or cooperatives.
(w) The term "residential mortgage transaction" means a transaction in which a mortgage, deed of trust, purchase money security interest arising under an installment sales contract, or equivalent consensual security interest is created or retained against the consumer's dwelling to finance the acquisition or initial construction of such dwelling.
(x) As used in this section and
(y) Any reference to any requirement imposed under this subchapter or any provision thereof includes reference to the regulations of the Board under this subchapter or the provision thereof in question.
(z) The disclosure of an amount or percentage which is greater than the amount or percentage required to be disclosed under this subchapter does not in itself constitute a violation of this subchapter.
(aa)(1) A mortgage referred to in this subsection means a consumer credit transaction that is secured by the consumer's principal dwelling, other than a residential mortgage transaction, a reverse mortgage transaction, or a transaction under an open end credit plan, if—
(A) the annual percentage rate at consummation of the transaction will exceed by more than 10 percentage points the yield on Treasury securities having comparable periods of maturity on the fifteenth day of the month immediately preceding the month in which the application for the extension of credit is received by the creditor; or
(B) the total points and fees payable by the consumer at or before closing will exceed the greater of—
(i) 8 percent of the total loan amount; or
(ii) $400.
(2)(A) After the 2-year period beginning on the effective date of the regulations promulgated under section 155 of the Riegle Community Development and Regulatory Improvement Act of 1994, and no more frequently than biennially after the first increase or decrease under this subparagraph, the Board may by regulation increase or decrease the number of percentage points specified in paragraph (1)(A), if the Board determines that the increase or decrease is—
(i) consistent with the consumer protections against abusive lending provided by the amendments made by subtitle B of title I of the Riegle Community Development and Regulatory Improvement Act of 1994; and
(ii) warranted by the need for credit.
(B) An increase or decrease under subparagraph (A) may not result in the number of percentage points referred to in subparagraph (A) being—
(i) less that 8 percentage points; or
(ii) greater than 12 percentage points.
(C) In determining whether to increase or decrease the number of percentage points referred to in subparagraph (A), the Board shall consult with representatives of consumers, including low-income consumers, and lenders.
(3) The amount specified in paragraph (1)(B)(ii) shall be adjusted annually on January 1 by the annual percentage change in the Consumer Price Index, as reported on June 1 of the year preceding such adjustment.
(4) For purposes of paragraph (1)(B), points and fees shall include—
(A) all items included in the finance charge, except interest or the time-price differential;
(B) all compensation paid to mortgage brokers;
(C) each of the charges listed in
(i) the charge is reasonable;
(ii) the creditor receives no direct or indirect compensation; and
(iii) the charge is paid to a third party unaffiliated with the creditor; and
(D) such other charges as the Board determines to be appropriate.
(5) This subsection shall not be construed to limit the rate of interest or the finance charge that a person may charge a consumer for any extension of credit.
(bb) The term "reverse mortgage transaction" means a nonrecourse transaction in which a mortgage, deed of trust, or equivalent consensual security interest is created against the consumer's principal dwelling—
(1) securing one or more advances; and
(2) with respect to which the payment of any principal, interest, and shared appreciation or equity is due and payable (other than in the case of default) only after—
(A) the transfer of the dwelling;
(B) the consumer ceases to occupy the dwelling as a principal dwelling; or
(C) the death of the consumer.
(
References in Text
The Riegle Community Development and Regulatory Improvement Act of 1994, referred to in subsec. (aa)(2)(A)(i), is
Amendments
1994—Subsec. (f).
Subsec. (u).
Subsec. (aa).
Subsec. (bb).
1982—Subsec. (f).
1981—Subsecs. (x) to (z).
1980—Subsec. (f).
Subsec. (g).
Subsec. (h).
Subsec. (i).
Subsecs. (s), (t).
Subsec. (u).
Subsecs. (v), (w).
Subsecs. (x), (y).
1976—Subsecs. (p) to (t).
1974—Subsec. (f).
1970—Subsecs. (j) to (r).
Effective Date of 1982 Amendment
Section 702(b) of
Effective Date of 1981 Amendment
Section 102(b) of
Effective Date of 1980 Amendment
Section 625 of title VI of
"(a) Except as provided in section 608(b) [set out as an Effective Date of 1980 Amendment note under
"(b) All regulations, forms, and clauses required to be prescribed under the amendments made by this title shall be promulgated at least one year prior to such effective date.
"(c) Notwithstanding subsections (a) and (b), any creditor may comply with the amendments made by this title, in accordance with the regulations, forms, and clauses prescribed by the Board, prior to such effective date. Any creditor who elects to comply with such amendments and any assignee of such a creditor shall be subject to the provisions of sections 130 and 131 of the Truth in Lending Act, as amended by sections 615 and 616, respectively, of this title [
Effective Date of 1974 Amendment
For effective date of amendment by
Regulations
Section 155 of title I of
Applicability of 1994 Amendments and Regulations to Subsection (aa) Mortgages
Section 156 of title I of
Section Referred to in Other Sections
This section is referred to in
§1603. Exempted transactions
This subchapter does not apply to the following:
(1) Credit transactions involving extensions of credit primarily for business, commercial, or agricultural purposes, or to government or governmental agencies or instrumentalities, or to organizations.
(2) Transactions in securities or commodities accounts by a broker-dealer registered with the Securities and Exchange Commission.
(3) Credit transactions, other than those in which a security interest is or will be acquired in real property, or in personal property used or expected to be used as the principal dwelling of the consumer, in which the total amount financed exceeds $25,000.
(4) Transactions under public utility tariffs, if the Board determines that a State regulatory body regulates the charges for the public utility services involved, the charges for delayed payment, and any discount allowed for early payment.
(5) Transactions for which the Board, by rule, determines that coverage under this subchapter is not necessary to carry out the purposes of this subchapter.
(6) Repealed.
(7) Loans made, insured, or guaranteed pursuant to a program authorized by title IV of the Higher Education Act of 1965 [
(
References in Text
The Higher Education Act of 1965, referred to in par. (7), is
Amendments
1996—Pars. (5) to (7).
1982—Par. (6).
1980—Par. (1).
Par. (3).
Par. (5).
1974—Par. (5).
Effective Date of 1982 Amendment
Section 701(c) of
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1974 Amendment
Amendment by
Exceptions in Areas Where Major Disaster Exists
Board of Governors of Federal Reserve System authorized to make exceptions to requirements of this subchapter for transactions within an area in which the President has determined that a major disaster exists, if Board determines that exception can reasonably be expected to alleviate hardships to the public that outweigh possible adverse effects, see section 2 of
Section Referred to in Other Sections
This section is referred to in
§1604. Disclosure guidelines
(a) Promulgation, contents, etc., of regulations
The Board shall prescribe regulations to carry out the purposes of this subchapter. Except in the case of a mortgage referred to in
(b) Model disclosure forms and clauses; publication, criteria, compliance, etc.
The Board shall publish model disclosure forms and clauses for common transactions to facilitate compliance with the disclosure requirements of this subchapter and to aid the borrower or lessee in understanding the transaction by utilizing readily understandable language to simplify the technical nature of the disclosures. In devising such forms, the Board shall consider the use by creditors or lessors of data processing or similar automated equipment. Nothing in this subchapter may be construed to require a creditor or lessor to use any such model form or clause prescribed by the Board under this section. A creditor or lessor shall be deemed to be in compliance with the disclosure provisions of this subchapter with respect to other than numerical disclosures if the creditor or lessor (1) uses any appropriate model form or clause as published by the Board, or (2) uses any such model form or clause and changes it by (A) deleting any information which is not required by this subchapter, or (B) rearranging the format, if in making such deletion or rearranging the format, the creditor or lessor does not affect the substance, clarity, or meaningful sequence of the disclosure.
(c) Procedures applicable for adoption of model forms and clauses
Model disclosure forms and clauses shall be adopted by the Board after notice duly given in the Federal Register and an opportunity for public comment in accordance with
(d) Effective dates of regulations containing new disclosure requirements
Any regulation of the Board, or any amendment or interpretation thereof, requiring any disclosure which differs from the disclosures previously required by this part, part D, or part E of this subchapter or by any regulation of the Board promulgated thereunder shall have an effective date of that October 1 which follows by at least six months the date of promulgation, except that the Board may at its discretion take interim action by regulation, amendment, or interpretation to lengthen the period of time permitted for creditors or lessors to adjust their forms to accommodate new requirements or shorten the length of time for creditors or lessors to make such adjustments when it makes a specific finding that such action is necessary to comply with the findings of a court or to prevent unfair or deceptive disclosure practices. Notwithstanding the previous sentence, any creditor or lessor may comply with any such newly promulgated disclosure requirements prior to the effective date of the requirements.
(f) 1 Exemption authority
(1) In general
The Board may exempt, by regulation, from all or part of this subchapter any class of transactions, other than transactions involving any mortgage described in
(2) Factors for consideration
In determining which classes of transactions to exempt in whole or in part under paragraph (1), the Board shall consider the following factors and publish its rationale at the time a proposed exemption is published for comment:
(A) The amount of the loan and whether the disclosures, right of rescission, and other provisions provide a benefit to the consumers who are parties to such transactions, as determined by the Board.
(B) The extent to which the requirements of this subchapter complicate, hinder, or make more expensive the credit process for the class of transactions.
(C) The status of the borrower, including—
(i) any related financial arrangements of the borrower, as determined by the Board;
(ii) the financial sophistication of the borrower relative to the type of transaction; and
(iii) the importance to the borrower of the credit, related supporting property, and coverage under this subchapter, as determined by the Board;
(D) whether the loan is secured by the principal residence of the consumer; and
(E) whether the goal of consumer protection would be undermined by such an exemption.
(g) Waiver for certain borrowers
(1) In general
The Board, by regulation, may exempt from the requirements of this subchapter certain credit transactions if—
(A) the transaction involves a consumer—
(i) with an annual earned income of more than $200,000; or
(ii) having net assets in excess of $1,000,000 at the time of the transaction; and
(B) a waiver that is handwritten, signed, and dated by the consumer is first obtained from the consumer.
(2) Adjustments by the Board
The Board, at its discretion, may adjust the annual earned income and net asset requirements of paragraph (1) for inflation.
(
Amendments
1996—Subsec. (f).
Subsec. (g).
1994—Subsec. (a).
1980—
Effective Date of 1980 Amendment
Amendment by
1 So in original. No subsec. (e) has been enacted.
§1605. Determination of finance charge
(a) "Finance charge" defined
Except as otherwise provided in this section, the amount of the finance charge in connection with any consumer credit transaction shall be determined as the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit. The finance charge does not include charges of a type payable in a comparable cash transaction. The finance charge shall not include fees and amounts imposed by third party closing agents (including settlement agents, attorneys, and escrow and title companies) if the creditor does not require the imposition of the charges or the services provided and does not retain the charges. Examples of charges which are included in the finance charge include any of the following types of charges which are applicable:
(1) Interest, time price differential, and any amount payable under a point, discount, or other system or additional charges.
(2) Service or carrying charge.
(3) Loan fee, finder's fee, or similar charge.
(4) Fee for an investigation or credit report.
(5) Premium or other charge for any guarantee or insurance protecting the creditor against the obligor's default or other credit loss.
(6) Borrower-paid mortgage broker fees, including fees paid directly to the broker or the lender (for delivery to the broker) whether such fees are paid in cash or financed.
(b) Life, accident, or health insurance premiums included in finance charge
Charges or premiums for credit life, accident, or health insurance written in connection with any consumer credit transaction shall be included in the finance charges unless
(1) the coverage of the debtor by the insurance is not a factor in the approval by the creditor of the extension of credit, and this fact is clearly disclosed in writing to the person applying for or obtaining the extension of credit; and
(2) in order to obtain the insurance in connection with the extension of credit, the person to whom the credit is extended must give specific affirmative written indication of his desire to do so after written disclosure to him of the cost thereof.
(c) Property damage and liability insurance premiums included in finance charge
Charges or premiums for insurance, written in connection with any consumer credit transaction, against loss of or damage to property or against liability arising out of the ownership or use of property, shall be included in the finance charge unless a clear and specific statement in writing is furnished by the creditor to the person to whom the credit is extended, setting forth the cost of the insurance if obtained from or through the creditor, and stating that the person to whom the credit is extended may choose the person through which the insurance is to be obtained.
(d) Items exempted from computation of finance charge in all credit transactions
If any of the following items is itemized and disclosed in accordance with the regulations of the Board in connection with any transaction, then the creditor need not include that item in the computation of the finance charge with respect to that transaction:
(1) Fees and charges prescribed by law which actually are or will be paid to public officials for determining the existence of or for perfecting or releasing or satisfying any security related to the credit transaction.
(2) The premium payable for any insurance in lieu of perfecting any security interest otherwise required by the creditor in connection with the transaction, if the premium does not exceed the fees and charges described in paragraph (1) which would otherwise be payable.
(3) Any tax levied on security instruments or on documents evidencing indebtedness if the payment of such taxes is a precondition for recording the instrument securing the evidence of indebtedness.
(e) Items exempted from computation of finance charge in extensions of credit secured by an interest in real property
The following items, when charged in connection with any extension of credit secured by an interest in real property, shall not be included in the computation of the finance charge with respect to that transaction:
(1) Fees or premiums for title examination, title insurance, or similar purposes.
(2) Fees for preparation of loan-related documents.
(3) Escrows for future payments of taxes and insurance.
(4) Fees for notarizing deeds and other documents.
(5) Appraisal fees, including fees related to any pest infestation or flood hazard inspections conducted prior to closing.
(6) Credit reports.
(f) Tolerances for accuracy
In connection with credit transactions not under an open end credit plan that are secured by real property or a dwelling, the disclosure of the finance charge and other disclosures affected by any finance charge—
(1) shall be treated as being accurate for purposes of this subchapter if the amount disclosed as the finance charge—
(A) does not vary from the actual finance charge by more than $100; or
(B) is greater than the amount required to be disclosed under this subchapter; and
(2) shall be treated as being accurate for purposes of
(A) except as provided in subparagraph (B), the amount disclosed as the finance charge does not vary from the actual finance charge by more than an amount equal to one-half of one percent of the total amount of credit extended; or
(B) in the case of a transaction, other than a mortgage referred to in
(i) is a refinancing of the principal balance then due and any accrued and unpaid finance charges of a residential mortgage transaction as defined in
(ii) does not provide any new consolidation or new advance;
if the amount disclosed as the finance charge does not vary from the actual finance charge by more than an amount equal to one percent of the total amount of credit extended.
(
Amendments
1995—Subsec. (a).
Subsec. (a)(6).
Subsec. (d)(3).
Subsec. (e)(2).
Subsec. (e)(5).
Subsec. (f).
1980—Subsec. (a).
Subsec. (d).
Effective Date of 1995 Amendment
Section 2(b)(2) of
"(A) 60 days after the date on which the Board of Governors of the Federal Reserve System issues final regulations under paragraph (3) [set out below]; or
"(B) the date that is 12 months after the date of the enactment of this Act [Sept. 30, 1995]."
Effective Date of 1980 Amendment
Amendment by
Regulations
Section 2(b)(3) of
Ensuring That Finance Charges Reflect Cost of Credit
Section 2(f) of
"(1)
"(A)
"(i) to ensure that finance charges imposed in connection with consumer credit transactions more accurately reflect the cost of providing credit; and
"(ii) to address abusive refinancing practices engaged in for the purpose of avoiding rescission.
"(B)
"(i) consider the extent to which it is feasible to include in finance charges all charges payable directly or indirectly by the consumer to whom credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit (especially those charges excluded from finance charges under section 106 of the Truth in Lending Act [
"(ii) consult with and consider the views of affected industries and consumer groups.
"(2)
Section Referred to in Other Sections
This section is referred to in
§1606. Determination of annual percentage rate
(a) "Annual percentage rate" defined
The annual percentage rate applicable to any extension of consumer credit shall be determined, in accordance with the regulations of the Board,
(1) in the case of any extension of credit other than under an open end credit plan, as
(A) that nominal annual percentage rate which will yield a sum equal to the amount of the finance charge when it is applied to the unpaid balances of the amount financed, calculated according to the actuarial method of allocating payments made on a debt between the amount financed and the amount of the finance charge, pursuant to which a payment is applied first to the accumulated finance charge and the balance is applied to the unpaid amount financed; or
(B) the rate determined by any method prescribed by the Board as a method which materially simplifies computation while retaining reasonable accuracy as compared with the rate determined under subparagraph (A).
(2) in the case of any extension of credit under an open end credit plan, as the quotient (expressed as a percentage) of the total finance charge for the period to which it relates divided by the amount upon which the finance charge for that period is based, multiplied by the number of such periods in a year.
(b) Computation of rate of finance charges for balances within a specified range
Where a creditor imposes the same finance charge for balances within a specified range, the annual percentage rate shall be computed on the median balance within the range, except that if the Board determines that a rate so computed would not be meaningful, or would be materially misleading, the annual percentage rate shall be computed on such other basis as the Board may be regulation require.
(c) Allowable tolerances for purposes of compliance with disclosure requirements
The disclosure of an annual percentage rate is accurate for the purpose of this subchapter if the rate disclosed is within a tolerance not greater than one-eighth of 1 per centum more or less than the actual rate or rounded to the nearest one-fourth of 1 per centum. The Board may allow a greater tolerance to simplify compliance where irregular payments are involved.
(d) Use of rate tables or charts having allowable variance from determined rates
The Board may authorize the use of rate tables or charts which may provide for the disclosure of annual percentage rates which vary from the rate determined in accordance with subsection (a)(1)(A) of this section by not more than such tolerances as the Board may allow. The Board may not allow a tolerance greater than 8 per centum of that rate except to simplify compliance where irregular payments are involved.
(e) Authorization of tolerances in determining annual percentage rates
In the case of creditors determining the annual percentage rate in a manner other than as described in subsection (d) of this section, the Board may authorize other reasonable tolerances.
(
Amendments
1980—Subsec. (c).
Subsec. (e).
Subsec. (f).
Effective Date of 1980 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1607. Administrative enforcement
(a) Enforcing agencies
Compliance with the requirements imposed under this subchapter shall be enforced under
(1) section 8 of the Federal Deposit Insurance Act [
(A) national banks, and Federal branches and Federal agencies of foreign banks, by the Office of the Comptroller of the Currency;
(B) member banks of the Federal Reserve System (other than national banks), branches and agencies of foreign banks (other than Federal branches, Federal agencies, and insured State branches of foreign banks), commercial lending companies owned or controlled by foreign banks, and organizations operating under section 25 or 25(a) 1 of the Federal Reserve Act [
(C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System) and insured State branches of foreign banks, by the Board of Directors of the Federal Deposit Insurance Corporation;
(2) section 8 of the Federal Deposit Insurance Act [
(3) the Federal Credit Union Act [
(4) part A of subtitle VII of title 49, by the Secretary of Transportation with respect to any air carrier or foreign air carrier subject to that part.
(5) the Packers and Stockyards Act, 1921 [
(6) the Farm Credit Act of 1971 [
The terms used in paragraph (1) that are not defined in this subchapter or otherwise defined in section 3(s) of the Federal Deposit Insurance Act (
(b) Violations of this subchapter deemed violations of pre-existing statutory requirements; additional agency powers
For the purpose of the exercise by any agency referred to in subsection (a) of this section of its powers under any Act referred to in that subsection, a violation of any requirement imposed under this subchapter shall be deemed to be a violation of a requirement imposed under that Act. In addition to its powers under any provision of law specifically referred to in subsection (a) of this section, each of the agencies referred to in that subsection may exercise, for the purpose of enforcing compliance with any requirement imposed under this subchapter, any other authority conferred on it by law.
(c) Federal Trade Commission as overall enforcing agency
Except to the extent that enforcement of the requirements imposed under this subchapter is specifically committed to some other Government agency under subsection (a) of this section, the Federal Trade Commission shall enforce such requirements. For the purpose of the exercise by the Federal Trade Commission of its functions and powers under the Federal Trade Commission Act [
(d) Rules and regulations
The authority of the Board to issue regulations under this subchapter does not impair the authority of any other agency designated in this section to make rules respecting its own procedures in enforcing compliance with requirements imposed under this subchapter.
(e) Adjustment of finance charges; procedures applicable, coverage, criteria, etc.
(1) In carrying out its enforcement activities under this section, each agency referred to in subsection (a) or (c) of this section, in cases where an annual percentage rate or finance charge was inaccurately disclosed, shall notify the creditor of such disclosure error and is authorized in accordance with the provisions of this subsection to require the creditor to make an adjustment to the account of the person to whom credit was extended, to assure that such person will not be required to pay a finance charge in excess of the finance charge actually disclosed or the dollar equivalent of the annual percentage rate actually disclosed, whichever is lower. For the purposes of this subsection, except where such disclosure error resulted from a willful violation which was intended to mislead the person to whom credit was extended, in determining whether a disclosure error has occurred and in calculating any adjustment, (A) each agency shall apply (i) with respect to the annual percentage rate, a tolerance of one-quarter of 1 percent more or less than the actual rate, determined without regard to
(2) Each agency shall require such an adjustment when it determines that such disclosure error resulted from (A) a clear and consistent pattern or practice of violations, (B) gross negligence, or (C) a willful violation which was intended to mislead the person to whom the credit was extended. Notwithstanding the preceding sentence, except where such disclosure error resulted from a willful violation which was intended to mislead the person to whom credit was extended, an agency need not require such an adjustment if it determines that such disclosure error—
(A) resulted from an error involving the disclosure of a fee or charge that would otherwise be excludable in computing the finance charge, including but not limited to violations involving the disclosures described in sections 1605(b), (c) and (d) of this title, in which event the agency may require such remedial action as it determines to be equitable, except that for transactions consummated after two years after March 31, 1980, such an adjustment shall be ordered for violations of
(B) involved a disclosed amount which was 10 per centum or less of the amount that should have been disclosed and (i) in cases where the error involved a disclosed finance charge, the annual percentage rate was disclosed correctly, and (ii) in cases where the error involved a disclosed annual percentage rate, the finance charge was disclosed correctly; in which event the agency may require such adjustment as it determines to be equitable;
(C) involved a total failure to disclose either the annual percentage rate or the finance charge, in which event the agency may require such adjustment as it determines to be equitable; or
(D) resulted from any other unique circumstance involving clearly technical and nonsubstantive disclosure violations that do not adversely affect information provided to the consumer and that have not misled or otherwise deceived the consumer.
In the case of other such disclosure errors, each agency may require such an adjustment.
(3) Notwithstanding paragraph (2), no adjustment shall be ordered—
(A) if it would have a significantly adverse impact upon the safety or soundness of the creditor, but in any such case, the agency may—
(i) require a partial adjustment in an amount which does not have such an impact; or
(ii) require the full adjustment, but permit the creditor to make the required adjustment in partial payments over an extended period of time which the agency considers to be reasonable, if (in the case of an agency referred to in paragraph (1), (2), or (3) of subsection (a) of this section), the agency determines that a partial adjustment or making partial payments over an extended period is necessary to avoid causing the creditor to become undercapitalized pursuant to section 38 of the Federal Deposit Insurance Act [
(B) the 2 amount of the adjustment would be less than $1, except that if more than one year has elapsed since the date of the violation, the agency may require that such amount be paid into the Treasury of the United States, or
(C) except where such disclosure error resulted from a willful violation which was intended to mislead the person to whom credit was extended, in the case of an open-end credit plan, more than two years after the violation, or in the case of any other extension of credit, as follows:
(i) with respect to creditors that are subject to examination by the agencies referred to in paragraphs (1) through (3) of subsection (a) of this section, except in connection with violations arising from practices identified in the current examination and only in connection with transactions that are consummated after the date of the immediately preceding examination, except that where practices giving rise to violations identified in earlier examinations have not been corrected, adjustments for those violations shall be required in connection with transactions consummated after the date of examination in which such practices were first identified;
(ii) with respect to creditors that are not subject to examination by such agencies, except in connection with transactions that are consummated after May 10, 1978; and
(iii) in no event after the later of (I) the expiration of the life of the credit extension, or (II) two years after the agreement to extend credit was consummated.
(4)(A) Notwithstanding any other provision of this section, an adjustment under this subsection may be required by an agency referred to in subsection (a) or (c) of this section only by an order issued in accordance with cease and desist procedures provided by the provision of law referred to in such subsections.
(B) In case of an agency which is not authorized to conduct cease and desist proceedings, such an order may be issued after an agency hearing on the record conducted at least thirty but not more than sixty days after notice of the alleged violation is served on the creditor. Such a hearing shall be deemed to be a hearing which is subject to the provisions of section 8(h) of the Federal Deposit Insurance Act [
(5) Except as otherwise specifically provided in this subsection and notwithstanding any provision of law referred to in subsection (a) or (c) of this section, no agency referred to in subsection (a) or (c) of this section may require a creditor to make dollar adjustments for errors in any requirements under this subchapter, except with regard to the requirements of
(6) A creditor shall not be subject to an order to make an adjustment, if within sixty days after discovering a disclosure error, whether pursuant to a final written examination report or through the creditor's own procedures, the creditor notifies the person concerned of the error and adjusts the account so as to assure that such person will not be required to pay a finance charge in excess of the finance charge actually disclosed or the dollar equivalent of the annual percentage rate actually disclosed, whichever is lower.
(7) Notwithstanding the second sentence of subsection (e)(1), subsection (e)(3)(C)(i), and subsection (e)(3)(C)(ii) of this section, each agency referred to in subsection (a) or (c) of this section shall require an adjustment for an annual percentage rate disclosure error that exceeds a tolerance of one quarter of one percent less than the actual rate, determined without regard to
(
References in Text
Section 25(a) of the Federal Reserve Act, referred to in subsec. (a)(1)(B), which is classified to subchapter II (§611 et seq.) of
The Federal Credit Union Act, referred to in subsec. (a)(3), is act June 26, 1934, ch. 750,
The Packers and Stockyards Act, 1921, referred to in subsec. (a)(5), is act Aug. 15, 1921, ch. 64,
The Farm Credit Act of 1971, referred to in subsec. (a)(6), is
The Federal Trade Commission Act, referred to in subsec. (c), is act Sept. 26, 1914, ch. 311,
Codification
In subsec. (a)(4), "part A of subtitle VII of title 49" substituted for "the Federal Aviation Act of 1958 [49 App. U.S.C. 1301 et seq.]" and "that part" substituted for "that Act" on authority of
Amendments
1996—Subsec. (e)(3).
"(A) if";
struck out "may require a partial" and inserted "may—
"(i) require a partial";
struck out ", except that with respect to any transaction consumated after March 31, 1980, the agency shall require" and inserted "; or
"(ii) require";
directed the substitution of "reasonable, if (in the case of an agency referred to in paragraph (1), (2), or (3) of subsection (a) of this section), the agency determines that a partial adjustment or making partial payments over an extended period is necessary to avoid causing the creditor to become undercapitalized pursuant to section 38 of the Federal Deposit Insurance Act;
"(B) the";
for "reasonable, (B) the", which was executed by making the substitution for "reasonable, (B) if the"; and struck out "(C) except" and inserted
"(C) except".
1992—Subsec. (a)(1)(C).
1991—Subsec. (a).
"(A) national banks, by the Comptroller of the Currency.
"(B) member banks of the Federal Reserve System (other than national banks), by the Board.
"(C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System), by the Board of Directors of the Federal Deposit Insurance Corporation."
1989—Subsec. (a)(2).
1984—Subsec. (a)(4).
1980—Subsec. (e).
1974—Subsec. (a)(4) to (6).
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1980 Amendment
Section 608(b) of
Section 608(c) of
Effective Date of 1974 Amendment
Amendment by
Transfer of Functions
"National Credit Union Administration Board" substituted for "Director of the Bureau of Federal Credit Unions" in subsec. (a)(3) pursuant to section 3 of
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
2 So in original. Probably should be preceded by "if".
§1608. Views of other agencies
In the exercise of its functions under this subchapter, the Board may obtain upon requests the views of any other Federal agency which, in the judgment of the Board, exercises regulatory or supervisory functions with respect to any class of creditors subject to this subchapter.
(
§1609. Repealed. Pub. L. 94–239, §3(b)(1), Mar. 23, 1976, 90 Stat. 253
Section,
Effective Date of Repeal
Repeal effective Mar. 23, 1976, see section 708 of
§1610. Effect on other laws
(a) Inconsistent provisions; procedures applicable for determination
(1) Except as provided in subsection (e) of this section, this part and parts B and C of this subchapter, do not annul, alter, or affect the laws of any State relating to the disclosure of information in connection with credit transactions, except to the extent that those laws are inconsistent with the provisions of this subchapter and then only to the extent of the inconsistency. Upon its own motion or upon the request of any creditor, State or other interested party which is submitted in accordance with procedures prescribed in regulations of the Board, the Board shall determine whether any such inconsistency exists. If the Board determines that a State-required disclosure is inconsistent, creditors located in that State may not make disclosures using the inconsistent term or form, and shall incur no liability under the law of that State for failure to use such term or form, notwithstanding that such determination is subsequently amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
(2) Upon its own motion or upon the request of any creditor, State, or other interested party which is submitted in accordance with procedures prescribed in regulations of the Board, the Board shall determine whether any disclosure required under the law of any State is substantially the same in meaning as a disclosure required under this subchapter. If the Board determines that a State-required disclosure is substantially the same in meaning as a disclosure required by this subchapter, then creditors located in that State may make such disclosure in compliance with such State law in lieu of the disclosure required by this subchapter, except that the annual percentage rate and finance charge shall be disclosed as required by
(b) State credit charge statutes
Except as provided in
(c) Disclosure as evidence
In any action or proceeding in any court involving a consumer credit sale, the disclosure of the annual percentage rate as required under this subchapter in connection with that sale may not be received as evidence that the sale was a loan or any type of transaction other than a credit sale.
(d) Contract or other obligations under State or Federal law
Except as specified in
(e) Certain credit and charge card application and solicitation disclosure provisions
The provisions of subsection (c) of
(
Amendments
1994—Subsec. (a)(2).
Subsec. (b).
1988—Subsec. (a)(1).
Subsec. (e).
1980—Subsec. (a).
1974—Subsec. (d).
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1974 Amendment
For effective date of amendment by
Section Referred to in Other Sections
This section is referred to in
§1611. Criminal liability for willful and knowing violation
Whoever willfully and knowingly
(1) gives false or inaccurate information or fails to provide information which he is required to disclose under the provisions of this subchapter or any regulation issued thereunder,
(2) uses any chart or table authorized by the Board under
(3) otherwise fails to comply with any requirement imposed under this subchapter,
shall be fined not more than $5,000 or imprisoned not more than one year, or both.
(
Section Referred to in Other Sections
This section is referred to in
§1612. Effect on government agencies
(a) Consultation requirements respecting compliance of credit instruments issued to participating creditor
Any department or agency of the United States which administers a credit program in which it extends, insures, or guarantees consumer credit and in which it provides instruments to a creditor which contain any disclosures required by this subchapter shall, prior to the issuance or continued use of such instruments, consult with the Board to assure that such instruments comply with this subchapter.
(b) Inapplicability of Federal civil or criminal penalties to Federal, State, and local agencies
No civil or criminal penalty provided under this subchapter for any violation thereof may be imposed upon the United States or any department or agency thereof, or upon any State or political subdivision thereof, or any agency of any State of political subdivision.
(c) Inapplicability of Federal civil or criminal penalties to participating creditor where violating instrument issued by United States
A creditor participating in a credit program administered, insured, or guaranteed by any department or agency or the United States shall not be held liable for a civil or criminal penalty under this subchapter in any case in which the violation results from the use of an instrument required by any such department or agency.
(d) Applicability of State penalties to violations by participating creditor
A creditor participating in a credit program administered, insured, or guaranteed by any department or agency of the United States shall not be held liable for a civil or criminal penalty under the laws of any State (other than laws determined under
(
Amendments
1980—
Effective Date of 1980 Amendment
Amendment by
§1613. Annual reports to Congress by Board
Each year the Board shall make a report to the Congress concerning the administration of its functions under this subchapter, including such recommendations as the Board deems necessary or appropriate. In addition, each report of the Board shall include its assessment of the extent to which compliance with the requirements imposed under this subchapter is being achieved.
(
Amendments
1982—
1980—
Effective Date of 1980 Amendment
Amendment by
§1614. Repealed. Pub. L. 96–221, title VI, §616(b), Mar. 31, 1980, 94 Stat. 182
Section,
Effective Date of Repeal
Repeal effective on expiration of two years and six months after Mar. 31, 1980, with all regulations, forms, and clauses required to be prescribed to be promulgated at least one year prior to such effective date, and allowing any creditor to comply with any amendments, in accordance with the regulations, forms, and clauses prescribed by the Board prior to such effective date, see section 625 of
§1615. Prohibition on use of "Rule of 78's" in connection with mortgage refinancings and other consumer loans
(a) Prompt refund of unearned interest required
(1) In general
If a consumer prepays in full the financed amount under any consumer credit transaction, the creditor shall promptly refund any unearned portion of the interest charge to the consumer.
(2) Exception for refund of de minimus amount
No refund shall be required under paragraph (1) with respect to the prepayment of any consumer credit transaction if the total amount of the refund would be less than $1.
(3) Applicability to refinanced transactions and acceleration by the creditor
This subsection shall apply with respect to any prepayment of a consumer credit transaction described in paragraph (1) without regard to the manner or the reason for the prepayment, including—
(A) any prepayment made in connection with the refinancing, consolidation, or restructuring of the transaction; and
(B) any prepayment made as a result of the acceleration of the obligation to repay the amount due with respect to the transaction.
(b) Use of "Rule of 78's" prohibited
For the purpose of calculating any refund of interest required under subsection (a) of this section for any precomputed consumer credit transaction of a term exceeding 61 months which is consummated after September 30, 1993, the creditor shall compute the refund based on a method which is at least as favorable to the consumer as the actuarial method.
(c) Statement of prepayment amount
(1) In general
Before the end of the 5-day period beginning on the date an oral or written request is received by a creditor from a consumer for the disclosure of the amount due on any precomputed consumer credit account, the creditor or assignee shall provide the consumer with a statement of—
(A) the amount necessary to prepay the account in full; and
(B) if the amount disclosed pursuant to subparagraph (A) includes an amount which is required to be refunded under this section with respect to such prepayment, the amount of such refund.
(2) Written statement required if request is in writing
If the customer's request is in writing, the statement under paragraph (1) shall be in writing.
(3) 1 free annual statement
A consumer shall be entitled to obtain 1 statement under paragraph (1) each year without charge.
(4) Additional statements subject to reasonable fees
Any creditor may impose a reasonable fee to cover the cost of providing any statement under paragraph (1) to any consumer in addition to the 1 free annual statement required under paragraph (3) if the amount of the charge for such additional statement is disclosed to the consumer before furnishing such statement.
(d) Definitions
For the purpose of this section—
(1) Actuarial method
The term "actuarial method" means the method of allocating payments made on a debt between the amount financed and the finance charge pursuant to which a payment is applied first to the accumulated finance charge and any remainder is subtracted from, or any deficiency is added to, the unpaid balance of the amount financed.
(2) Consumer, credit
The terms "consumer" and "creditor" have the meanings given to such terms in
(3) Creditor
The term "creditor"—
(A) has the meaning given to such term in
(B) includes any assignee of any creditor with respect to credit extended in connection with any consumer credit transaction and any subsequent assignee with respect to such credit.
(
Codification
Section was enacted as part of the Housing and Community Development Act of 1992, and not as part of the Consumer Credit Protection Act which comprises this chapter.
Section Referred to in Other Sections
This section is referred to in
Part B—Credit Transactions
Part Referred to in Other Sections
This part is referred to in
§1631. Disclosure requirements
(a) Duty of creditor or lessor respecting one or more than one obligor
Subject to subsection (b) of this section, a creditor or lessor shall disclose to the person who is obligated on a consumer lease or a consumer credit transaction the information required under this subchapter. In a transaction involving more than one obligor, a creditor or lessor, except in a transaction under
(b) Creditor or lessor required to make disclosure
If a transaction involves one creditor as defined in
(c) Estimates as satisfying statutory requirements; basis of disclosure for per diem interest
The Board may provide by regulation that any portion of the information required to be disclosed by this subchapter may be given in the form of estimates where the provider of such information is not in a position to know exact information. In the case of any consumer credit transaction a portion of the interest on which is determined on a per diem basis and is to be collected upon the consummation of such transaction, any disclosure with respect to such portion of interest shall be deemed to be accurate for purposes of this subchapter if the disclosure is based on information actually known to the creditor at the time that the disclosure documents are being prepared for the consummation of the transaction.
(d) Tolerances for numerical disclosures
The Board shall determine whether tolerances for numerical disclosures other than the annual percentage rate are necessary to facilitate compliance with this subchapter, and if it determines that such tolerances are necessary to facilitate compliance, it shall by regulation permit disclosures within such tolerances. The Board shall exercise its authority to permit tolerances for numerical disclosures other than the annual percentage rate so that such tolerances are narrow enough to prevent such tolerances from resulting in misleading disclosures or disclosures that circumvent the purposes of this subchapter.
(
Amendments
1995—Subsec. (c).
1980—Subsec. (a).
Subsec. (b).
Subsecs. (c), (d).
1976—Subsec. (c).
1974—Subsec. (a).
Subsec. (b).
Subsec. (c).
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1974 Amendment
For effective date of amendment by section 307(c), (d) of
For effective date of amendment by section 409 of
Effective Date
Section 504(b) of
Real Estate Settlement Procedures
Provisions of Real Estate Settlement Procedures Act of 1974, as superseding provisions of subsec. (c) of this section insofar as applying to federally related mortgage loans, see
Section Referred to in Other Sections
This section is referred to in
§1632. Form of disclosure; additional information
(a) Information clearly and conspicuously disclosed; "annual percentage rate" and "finance charge"; order of disclosures and use of different terminology
Information required by this subchapter shall be disclosed clearly and conspicuously, in accordance with regulations of the Board. The terms "annual percentage rate" and "finance charge" shall be disclosed more conspicuously than other terms, data, or information provided in connection with a transaction, except information relating to the identify of the creditor. Except as provided in subsection (c) of this section, regulations of the Board need not require that disclosures pursuant to this subchapter be made in the order set forth in this subchapter and, except as otherwise provided, may permit the use of terminology different from that employed in this subchapter if it conveys substantially the same meaning.
(b) Optional information by creditor or lessor
Any creditor or lessor may supply additional information or explanation with any disclosures required under parts D and E of this subchapter and, except as provided in
(c) Tabular format required for certain disclosures under section 1637(c)
(1) In general
The information described in paragraphs (1)(A), (3)(B)(i)(I), (4)(A), and (4)(C)(i)(I) of
(A) disclosed in the form and manner which the Board shall prescribe by regulations; and
(B) placed in a conspicuous and prominent location on or with any written application, solicitation, or other document or paper with respect to which such disclosure is required.
(2) Tabular format
(A) Form of table to be prescribed
In the regulations prescribed under paragraph (1)(A) of this subsection, the Board shall require that the disclosure of such information shall, to the extent the Board determines to be practicable and appropriate, be in the form of a table which—
(i) contains clear and concise headings for each item of such information; and
(ii) provides a clear and concise form for stating each item of information required to be disclosed under each such heading.
(B) Board discretion in prescribing order and wording of table
In prescribing the form of the table under subparagraph (A), the Board may—
(i) list the items required to be included in the table in a different order than the order in which such items are set forth in paragraph (1)(A) or (4)(A) of
(ii) subject to subparagraph (C), employ terminology which is different than the terminology which is employed in
(C) Grace period
Either the heading or the statement under the heading which relates to the time period referred to in
(
Amendments
1988—Subsec. (a).
Subsec. (b).
Subsec. (c).
1980—Subsec. (a).
Subsec. (b).
1974—Subsecs. (a), (b).
Effective Date of 1988 Amendment
For effective date of amendments by
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1974 Amendment
For effective date of amendment by
Regulations; Effective Date
For provisions relating to promulgation of regulations to implement amendment by
For provisions relating to promulgation of regulations to implement amendment by
Section Referred to in Other Sections
This section is referred to in
§1633. Exemption for State-regulated transactions
The Board shall by regulation exempt from the requirements of this part any class of credit transactions within any State if it determines that under the law of that State that class of transactions is subject to requirements substantially similar to those imposed under this part, and that there is adequate provision for enforcement.
(
§1634. Effect of subsequent occurrence
If information disclosed in accordance with this part is subsequently rendered inaccurate as the result of any act, occurrence, or agreement subsequent to the delivery of the required disclosures, the inaccuracy resulting therefrom does not constitute a violation of this part.
(
§1635. Right of rescission as to certain transactions
(a) Disclosure of obligor's right to rescind
Except as otherwise provided in this section, in the case of any consumer credit transaction (including opening or increasing the credit limit for an open end credit plan) in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any property which is used as the principal dwelling of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, appropriate forms for the obligor to exercise his right to rescind any transaction subject to this section.
(b) Return of money or property following rescission
When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. Within 20 days after receipt of a notice of rescission, the creditor shall return to the boligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor's obligations under this section, the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its reasonable value. Tender shall be made at the location of the property or at the residence of the obligor, at the option of the obligor. If the creditor does not take possession of the property within 20 days after tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it. The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.
(c) Rebuttable presumption of delivery of required disclosures
Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this subchapter by a person to whom information, forms, and a statement is required to be given pursuant to this section does no more than create a rebuttable presumption of delivery thereof.
(d) Modification and waiver of rights
The Board may, if it finds that such action is necessary in order to permit homeowners to meet bona fide personal financial emergencies, prescribe regulations authorizing the modification or waiver of any rights created under this section to the extent and under the circumstances set forth in those regulations.
(e) Exempted transactions; reapplication of provisions
This section does not apply to—
(1) a residential mortgage transaction as defined in
(2) a transaction which constitutes a refinancing or consolidation (with no new advances) of the principal balance then due and any accrued and unpaid finance charges of an existing extension of credit by the same creditor secured by an interest in the same property;
(3) a transaction in which an agency of a State is the creditor; or
(4) advances under a preexisting open end credit plan if a security interest has already been retained or acquired and such advances are in accordance with a previously established credit limit for such plan.
(f) Time limit for exercise of right
An obligor's right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first, notwithstanding the fact that the information and forms required under this section or any other disclosures required under this part have not been delivered to the obligor, except that if (1) any agency empowered to enforce the provisions of this subchapter institutes a proceeding to enforce the provisions of this section within three years after the date of consummation of the transaction, (2) such agency finds a violation of this section, and (3) the obligor's right to rescind is based in whole or in part on any matter involved in such proceeding, then the obligor's right of rescission shall expire three years after the date of consummation of the transaction or upon the earlier sale of the property, or upon the expiration of one year following the conclusion of the proceeding, or any judicial review or period for judicial review thereof, whichever is later.
(g) Additional relief
In any action in which it is determined that a creditor has violated this section, in addition to rescission the court may award relief under
(h) Limitation on rescission
An obligor shall have no rescission rights arising solely from the form of written notice used by the creditor to inform the obligor of the rights of the obligor under this section, if the creditor provided the obligor the appropriate form of written notice published and adopted by the Board, or a comparable written notice of the rights of the obligor, that was properly completed by the creditor, and otherwise complied with all other requirements of this section regarding notice.
(i) Rescission rights in foreclosure
(1) In general
Notwithstanding
(A) a mortgage broker fee is not included in the finance charge in accordance with the laws and regulations in effect at the time the consumer credit transaction was consummated; or
(B) the form of notice of rescission for the transaction is not the appropriate form of written notice published and adopted by the Board or a comparable written notice, and otherwise complied with all the requirements of this section regarding notice.
(2) Tolerance for disclosures
Notwithstanding
(3) Right of recoupment under State law
Nothing in this subsection affects a consumer's right of rescission in recoupment under State law.
(4) Applicability
This subsection shall apply to all consumer credit transactions in existence or consummated on or after September 30, 1995.
(
Amendments
1995—Subsec. (h).
Subsec. (i).
1984—Subsec. (e).
1980—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (e).
Subsec. (f).
Subsec. (g).
1974—Subsecs. (a), (b).
Subsec. (e).
Subsec. (f).
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1974 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1636. Repealed. Pub. L. 96–221, title VI, §614(e)(1), Mar. 31, 1980, 94 Stat. 180
Section,
Effective Date of Repeal
Repeal effective on expiration of two years and six months after Mar. 31, 1980, with all regulations, forms, and clauses required to be prescribed to be promulgated at least one year prior to such effective date, and allowing any creditor to comply with any amendments, in accordance with the regulations, forms, and clauses prescribed by the Board prior to such effective date, see section 625 of
§1637. Open end consumer credit plans
(a) Required disclosures by creditor
Before opening any account under an open end consumer credit plan, the creditor shall disclose to the person to whom credit is to be extended each of the following items, to the extent applicable:
(1) The conditions under which a finance charge may be imposed, including the time period (if any) within which any credit extended may be repaid without incurring a finance charge, except that the creditor may, at his election and without disclosure, impose no such finance charge if payment is received after the termination of such time period. If no such time period is provided, the creditor shall disclose such fact.
(2) The method of determining the balance upon which a finance charge will be imposed.
(3) The method of determining the amount of the finance charge, including any minimum or fixed amount imposed as a finance charge.
(4) Where one or more periodic rates may be used to compute the finance charge, each such rate, the range of balances to which it is applicable, and the corresponding nominal annual percentage rate determined by multiplying the periodic rate by the number of periods in a year.
(5) Identification of other charges which may be imposed as part of the plan, and their method of computation, in accordance with regulations of the Board.
(6) In cases where the credit is or will be secured, a statement that a security interest has been or will be taken in (A) the property purchased as part of the credit transaction, or (B) property not purchased as part of the credit transaction identified by item or type.
(7) A statement, in a form prescribed by regulations of the Board of the protection provided by
(8) In the case of any account under an open end consumer credit plan which provides for any extension of credit which is secured by the consumer's principal dwelling, any information which—
(A) is required to be disclosed under
(B) the Board determines is not described in any other paragraph of this subsection.
(b) Statement required with each billing cycle
The creditor of any account under an open end consumer credit plan shall transmit to the obligor, for each billing cycle at the end of which there is an outstanding balance in that account or with respect to which a finance charge is imposed, a statement setting forth each of the following items to the extent applicable:
(1) The outstanding balance in the account at the beginning of the statement period.
(2) The amount and date of each extension of credit during the period, and a brief identification, on or accompanying the statement of each extension of credit in a form prescribed by the Board sufficient to enable the obligor either to identify the transaction or to relate it to copies of sales vouchers or similar instruments previously furnished, except that a creditor's failure to disclose such information in accordance with this paragraph shall not be deemed a failure to comply with this part or this subchapter if (A) the creditor maintains procedures reasonably adapted to procure and provide such information, and (B) the creditor responds to and treats any inquiry for clarification or documentation as a billing error and an erroneously billed amount under
(3) The total amount credited to the account during the period.
(4) The amount of any finance charge added to the account during the period, itemized to show the amounts, if any, due to the application of percentage rates and the amount, if any, imposed as a minimum or fixed charge.
(5) Where one or more periodic rates may be used to compute the finance charge, each such rate, the range of balances to which it is applicable, and, unless the annual percentage rate (determined under
(6) Where the total finance charge exceeds 50 cents for a monthly or longer billing cycle, or the pro rata part of 50 cents for a billing cycle shorter than monthly, the total finance charge expressed as an annual percentage rate (determined under
(7) The balance on which the finance charge was computed and a statement of how the balance was determined. If the balance is determined without first deducting all credits during the period, that fact and the amount of such payments shall also be disclosed.
(8) The outstanding balance in the account at the end of the period.
(9) The date by which or the period (if any) within which, payment must be made to avoid additional finance charges, except that the creditor may, at his election and without disclosure, impose no such additional finance charge if payment is received after such date or the termination of such period.
(10) The address to be used by the creditor for the purpose of receiving billing inquiries from the obligor.
(c) Disclosure in credit and charge card applications and solicitations
(1) Direct mail applications and solicitations
(A) Information in tabular format
Any application to open a credit card account for any person under an open end consumer credit plan, or a solicitation to open such an account without requiring an application, that is mailed to consumers shall disclose the following information, subject to subsection (e) of this section and
(i) Annual percentage rates
(I) Each annual percentage rate applicable to extensions of credit under such credit plan.
(II) Where an extension of credit is subject to a variable rate, the fact that the rate is variable, the annual percentage rate in effect at the time of the mailing, and how the rate is determined.
(III) Where more than one rate applies, the range of balances to which each rate applies.
(ii) Annual and other fees
(I) Any annual fee, other periodic fee, or membership fee imposed for the issuance or availability of a credit card, including any account maintenance fee or other charge imposed based on activity or inactivity for the account during the billing cycle.
(II) Any minimum finance charge imposed for each period during which any extension of credit which is subject to a finance charge is outstanding.
(III) Any transaction charge imposed in connection with use of the card to purchase goods or services.
(iii) Grace period
(I) The date by which or the period within which any credit extended under such credit plan for purchases of goods or services must be repaid to avoid incurring a finance charge, and, if no such period is offered, such fact shall be clearly stated.
(II) If the length of such "grace period" varies, the card issuer may disclose the range of days in the grace period, the minimum number of days in the grace period, or the average number of days in the grace period, if the disclosure is identified as such.
(iv) Balance calculation method
(I) The name of the balance calculation method used in determining the balance on which the finance charge is computed if the method used has been defined by the Board, or a detailed explanation of the balance calculation method used if the method has not been so defined.
(II) In prescribing regulations to carry out this clause, the Board shall define and name not more than the 5 balance calculation methods determined by the Board to be the most commonly used methods.
(B) Other information
In addition to the information required to be disclosed under subparagraph (A), each application or solicitation to which such subparagraph applies shall disclose clearly and conspicuously the following information, subject to subsections (e) and (f) of this section:
(i) Cash advance fee
Any fee imposed for an extension of credit in the form of cash.
(ii) Late fee
Any fee imposed for a late payment.
(iii) Over-the-limit fee
Any fee imposed in connection with an extension of credit in excess of the amount of credit authorized to be extended with respect to such account.
(2) Telephone solicitations
(A) In general
In any telephone solicitation to open a credit card account for any person under an open end consumer credit plan, the person making the solicitation shall orally disclose the information described in paragraph (1)(A).
(B) Exception
Subparagraph (A) shall not apply to any telephone solicitation if—
(i) the credit card issuer—
(I) does not impose any fee described in paragraph (1)(A)(ii)(I); or
(II) does not impose any fee in connection with telephone solicitations unless the consumer signifies acceptance by using the card;
(ii) the card issuer discloses clearly and conspicuously in writing the information described in paragraph (1) within 30 days after the consumer requests the card, but in no event later than the date of delivery of the card; and
(iii) the card issuer discloses clearly and conspicuously that the consumer is not obligated to accept the card or account and the consumer will not be obligated to pay any of the fees or charges disclosed unless the consumer elects to accept the card or account by using the card.
(3) Applications and solicitations by other means
(A) In general
Any application to open a credit card account for any person under an open end consumer credit plan, and any solicitation to open such an account without requiring an application, that is made available to the public or contained in catalogs, magazines, or other publications shall meet the disclosure requirements of subparagraph (B), (C), or (D).
(B) Specific information
An application or solicitation described in subparagraph (A) meets the requirement of this subparagraph if such application or solicitation contains—
(i) the information—
(I) described in paragraph (1)(A) in the form required under
(II) described in paragraph (1)(B) in a clear and conspicuous form, subject to subsections (e) and (f) of this section;
(ii) a statement, in a conspicuous and prominent location on the application or solicitation, that—
(I) the information is accurate as of the date the application or solicitation was printed;
(II) the information contained in the application or solicitation is subject to change after such date; and
(III) the applicant should contact the creditor for information on any change in the information contained in the application or solicitation since it was printed;
(iii) a clear and conspicuous disclosure of the date the application or solicitation was printed; and
(iv) a disclosure, in a conspicuous and prominent location on the application or solicitation, of a toll free telephone number or a mailing address at which the applicant may contact the creditor to obtain any change in the information provided in the application or solicitation since it was printed.
(C) General information without any specific term
An application or solicitation described in subparagraph (A) meets the requirement of this subparagraph if such application or solicitation—
(i) contains a statement, in a conspicuous and prominent location on the application or solicitation, that—
(I) there are costs associated with the use of credit cards; and
(II) the applicant may contact the creditor to request disclosure of specific information of such costs by calling a toll free telephone number or by writing to an address, specified in the application;
(ii) contains a disclosure, in a conspicuous and prominent location on the application or solicitation, of a toll free telephone number and a mailing address at which the applicant may contact the creditor to obtain such information; and
(iii) does not contain any of the items described in paragraph (1).
(D) Applications or solicitations containing subsection (a) disclosures
An application or solicitation meets the requirement of this subparagraph if it contains, or is accompanied by—
(i) the disclosures required by paragraphs (1) through (6) of subsection (a) of this section;
(ii) the disclosures required by subparagraphs (A) and (B) of paragraph (1) of this subsection included clearly and conspiciously 1 (except that the provisions of
(iii) a toll free telephone number or a mailing address at which the applicant may contact the creditor to obtain any change in the information provided.
(E) Prompt response to information requests
Upon receipt of a request for any of the information referred to in subparagraph (B), (C), or (D), the card issuer or the agent of such issuer shall promptly disclose all of the information described in paragraph (1).
(4) Charge card applications and solicitations
(A) In general
Any application or solicitation to open a charge card account shall disclose clearly and conspicuously the following information in the form required by
(i) Any annual fee, other periodic fee, or membership fee imposed for the issuance or availability of the charge card, including any account maintenance fee or other charge imposed based on activity or inactivity for the account during the billing cycle.
(ii) Any transaction charge imposed in connection with use of the card to purchase goods or services.
(iii) A statement that charges incurred by use of the charge card are due and payable upon receipt of a periodic statement rendered for such charge card account.
(B) Other information
In addition to the information required to be disclosed under subparagraph (A), each written application or solicitation to which such subparagraph applies shall disclose clearly and conspicuously the following information, subject to subsections (e) and (f) of this section:
(i) Cash advance fee
Any fee imposed for an extension of credit in the form of cash.
(ii) Late fee
Any fee imposed for a late payment.
(iii) Over-the-limit fee
Any fee imposed in connection with an extension of credit in excess of the amount of credit authorized to be extended with respect to such account.
(C) Applications and solicitations by other means
Any application to open a charge card account, and any solicitation to open such an account without requiring an application, that is made available to the public or contained in catalogs, magazines, or other publications shall contain—
(i) the information—
(I) described in subparagraph (A) in the form required under
(II) described in subparagraph (B) in a clear and conspicuous form, subject to subsections (e) and (f) of this section;
(ii) a statement, in a conspicuous and prominent location on the application or solicitation, that—
(I) the information is accurate as of the date the application or solicitation was printed;
(II) the information contained in the application or solicitation is subject to change after such date; and
(III) the applicant should contact the creditor for information on any change in the information contained in the application or solicitation since it was printed;
(iii) a clear and conspicuous disclosure of the date the application or solicitation was printed; and
(iv) a disclosure, in a conspicuous and prominent location on the application or solicitation, of a toll free telephone number or a mailing address at which the applicant may contact the creditor to obtain any change in the information provided in the application or solicitation since it was printed.
(D) Issuers of charge cards which provide access to open end consumer credit plans
If a charge card permits the card holder to receive an extension of credit under an open end consumer credit plan, which is not maintained by the charge card issuer, the charge card issuer may provide the information described in subparagraphs (A) and (B) in the form required by such subparagraphs in lieu of the information required to be provided under paragraph (1), (2), or (3) with respect to any credit extended under such plan, if the charge card issuer discloses clearly and conspicuously to the consumer in the application or solicitation that—
(i) the charge card issuer will make an independent decision as to whether to issue the card;
(ii) the charge card may arrive before the decision is made with respect to an extension of credit under an open end consumer credit plan; and
(iii) approval by the charge card issuer does not constitute approval by the issuer of the extension of credit.
The information required to be disclosed under paragraph (1) shall be provided to the charge card holder by the creditor which maintains such open end consumer credit plan before the first extension of credit under such plan.
(E) Charge card defined
For the purposes of this subsection, the term "charge card" means a card, plate, or other single credit device that may be used from time to time to obtain credit which is not subject to a finance charge.
(5) Regulatory authority of the Board
The Board may, by regulation, require the disclosure of information in addition to that otherwise required by this subsection or subsection (d) of this section, and modify any disclosure of information required by this subsection or subsection (d) of this section, in any application to open a credit card account for any person under an open end consumer credit plan or any application to open a charge card account for any person, or a solicitation to open any such account without requiring an application, if the Board determines that such action is necessary to carry out the purposes of, or prevent evasions of, any paragraph of this subsection.
(d) Disclosure prior to renewal
(1) In general
Except as provided in paragraph (2), a card issuer that imposes any fee described in subsection (c)(1)(A)(ii)(I) or (c)(4)(A)(i) of this section shall transmit to a consumer at least 30 days prior to the scheduled renewal date of the consumer's credit or charge card account a clear and conspicuous disclosure of—
(A) the date by which, the month by which, or the billing period at the close of which, the account will expire if not renewed;
(B) the information described in subsection (c)(1)(A) or (c)(4)(A) of this section that would apply if the account were renewed, subject to subsection (e) of this section; and
(C) the method by which the consumer may terminate continued credit availability under the account.
(2) Special rule for certain disclosures
(A) In general
The disclosures required by this subsection may be provided—
(i) prior to posting a fee described in subsection (c)(1)(A)(ii)(I) or (c)(4)(A)(i) of this section to the account, or
(ii) with the periodic billing statement first disclosing that the fee has been posted to the account.
(B) Limitation on use of special rule
Disclosures may be provided under subparagraph (A) only if—
(i) the consumer is given a 30-day period to avoid payment of the fee or to have the fee recredited to the account in any case where the consumer does not wish to continue the availability of the credit; and
(ii) the consumer is permitted to use the card during such period without incurring an obligation to pay such fee.
(3) Short-term renewals
The Board may by regulation provide for fewer disclosures than are required by paragraph (1) in the case of an account which is renewable for a period of less than 6 months.
(e) Other rules for disclosures under subsections (c) and (d)
(1) Fees determined on the basis of a percentage
If the amount of any fee required to be disclosed under subsection (c) or (d) of this section is determined on the basis of a percentage of another amount, the percentage used in making such determination and the identification of the amount against which such percentage is applied shall be disclosed in lieu of the amount of such fee.
(2) Disclosure only of fees actually imposed
If a credit or charge card issuer does not impose any fee required to be disclosed under any provision of subsection (c) or (d) of this section, such provision shall not apply with respect to such issuer.
(f) Disclosure of range of certain fees which vary by State allowed
If the amount of any fee required to be disclosed by a credit or charge card issuer under paragraph (1)(B), (3)(B)(i)(II), (4)(B), or (4)(C)(i)(II) of subsection (c) of this section varies from State to State, the card issuer may disclose the range of such fees for purposes of subsection (c) of this section in lieu of the amount for each applicable State, if such disclosure includes a statement that the amount of such fee varies from State to State.
(g) Insurance in connection with certain open end credit card plans
(1) Change in insurance carrier
Whenever a card issuer that offers any guarantee or insurance for repayment of all or part of the outstanding balance of an open end credit card plan proposes to change the person providing that guarantee or insurance, the card issuer shall send each insured consumer written notice of the proposed change not less than 30 days prior to the change, including notice of any increase in the rate or substantial decrease in coverage or service which will result from such change. Such notice may be included on or with the monthly statement provided to the consumer prior to the month in which the proposed change would take effect.
(2) Notice of new insurance coverage
In any case in which a proposed change described in paragraph (1) occurs, the insured consumer shall be given the name and address of the new guarantor or insurer and a copy of the policy or group certificate containing the basic terms and conditions, including the premium rate to be charged.
(3) Right to discontinue guarantee or insurance
The notices required under paragraphs (1) and (2) shall each include a statement that the consumer has the option to discontinue the insurance or guarantee.
(4) No preemption of State law
No provision of this subsection shall be construed as superseding any provision of State law which is applicable to the regulation of insurance.
(5) Board definition of substantial decrease in coverage or service
The Board shall define, in regulations, what constitutes a "substantial decrease in coverage or service" for purposes of paragraph (1).
(
Amendments
1988—Subsec. (a)(8).
Subsecs. (c) to (f).
Subsec. (g).
1980—Subsec. (a)(1).
Subsec. (a)(5).
Subsec. (a)(6).
Subsec. (a)(7), (8).
Subsec. (b)(2).
Subsec. (b)(7) to (11).
Subsec. (c).
1974—Subsec. (a)(1).
Subsec. (a)(8).
Subsec. (b)(2).
Subsec. (b)(10).
Subsec. (b)(11).
Subsec. (c).
Effective Date of 1988 Amendment
For effective date of amendments by
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1974 Amendment
For effective date of amendment by sections 304 and 305 of
For effective date of amendment by section 411 of
Amendment by section 415 of
Regulations; Effective Date
For provisions relating to promulgation of regulations to implement amendment by
Section 7 of
"(1) take effect not later than the end of the 150-day period beginning on the date of the enactment of this Act [Nov. 3, 1988]; and
"(2) apply only with respect to applications, solicitations, and other material distributed after the end of the 150-day period beginning after the end of the period referred to in paragraph (1), except that—
"(A) in the case of applications and solicitations subject to paragraph (3) or (4)(C) of section 127(c) of the Truth in Lending Act [
"(B) any card issuer may, at its option, comply with the requirements of the amendments made by this Act [see Short Title of 1988 Amendment note under
Reports to Congress
Section 8 of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "conspicuously".
§1637a. Disclosure requirements for open end consumer credit plans secured by consumer's principal dwelling
(a) Application disclosures
In the case of any open end consumer credit plan which provides for any extension of credit which is secured by the consumer's principal dwelling, the creditor shall make the following disclosures in accordance with subsection (b) of this section:
(1) Fixed annual percentage rate
Each annual percentage rate imposed in connection with extensions of credit under the plan and a statement that such rate does not include costs other than interest.
(2) Variable percentage rate
In the case of a plan which provides for variable rates of interest on credit extended under the plan—
(A) a description of the manner in which such rate will be computed and a statement that such rate does not include costs other than interest;
(B) a description of the manner in which any changes in the annual percentage rate will be made, including—
(i) any negative amortization and interest rate carryover;
(ii) the timing of any such changes;
(iii) any index or margin to which such changes in the rate are related; and
(iv) a source of information about any such index;
(C) if an initial annual percentage rate is offered which is not based on an index—
(i) a statement of such rate and the period of time such initial rate will be in effect; and
(ii) a statement that such rate does not include costs other than interest;
(D) a statement that the consumer should ask about the current index value and interest rate;
(E) a statement of the maximum amount by which the annual percentage rate may change in any 1-year period or a statement that no such limit exists;
(F) a statement of the maximum annual percentage rate that may be imposed at any time under the plan;
(G) subject to subsection (b)(3) of this section, a table, based on a $10,000 extension of credit, showing how the annual percentage rate and the minimum periodic payment amount under each repayment option of the plan would have been affected during the preceding 15-year period by changes in any index used to compute such rate;
(H) a statement of—
(i) the maximum annual percentage rate which may be imposed under each repayment option of the plan;
(ii) the minimum amount of any periodic payment which may be required, based on a $10,000 outstanding balance, under each such option when such maximum annual percentage rate is in effect; and
(iii) the earliest date by which such maximum annual interest rate may be imposed; and
(I) a statement that interest rate information will be provided on or with each periodic statement.
(3) Other fees imposed by the creditor
An itemization of any fees imposed by the creditor in connection with the availability or use of credit under such plan, including annual fees, application fees, transaction fees, and closing costs (including costs commonly described as "points"), and the time when such fees are payable.
(4) Estimates of fees which may be imposed by third parties
(A) Aggregate amount
An estimate, based on the creditor's experience with such plans and stated as a single amount or as a reasonable range, of the aggregate amount of additional fees that may be imposed by third parties (such as governmental authorities, appraisers, and attorneys) in connection with opening an account under the plan.
(B) Statement of availability
A statement that the consumer may ask the creditor for a good faith estimate by the creditor of the fees that may be imposed by third parties.
(5) Statement of risk of loss of dwelling
A statement that—
(A) any extension of credit under the plan is secured by the consumer's dwelling; and
(B) in the event of any default, the consumer risks the loss of the dwelling.
(6) Conditions to which disclosed terms are subject
(A) Period during which such terms are available
A clear and conspicuous statement—
(i) of the time by which an application must be submitted to obtain the terms disclosed; or
(ii) if applicable, that the terms are subject to change.
(B) Right of refusal if certain terms change
A statement that—
(i) the consumer may elect not to enter into an agreement to open an account under the plan if any term changes (other than a change contemplated by a variable feature of the plan) before any such agreement is final; and
(ii) if the consumer makes an election described in clause (i), the consumer is entitled to a refund of all fees paid in connection with the application.
(C) Retention of information
A statement that the consumer should make or otherwise retain a copy of information disclosed under this subparagraph.
(7) Rights of creditor with respect to extensions of credit
A statement that—
(A) under certain conditions, the creditor may terminate any account under the plan and require immediate repayment of any outstanding balance, prohibit any additional extension of credit to the account, or reduce the credit limit applicable to the account; and
(B) the consumer may receive, upon request, more specific information about the conditions under which the creditor may take any action described in subparagraph (A).
(8) Repayment options and minimum periodic payments
The repayment options under the plan, including—
(A) if applicable, any differences in repayment options with regard to—
(i) any period during which additional extensions of credit may be obtained; and
(ii) any period during which repayment is required to be made and no additional extensions of credit may be obtained;
(B) the length of any repayment period, including any differences in the length of any repayment period with regard to the periods described in clauses (i) and (ii) of subparagraph (A); and
(C) an explanation of how the amount of any minimum monthly or periodic payment will be determined under each such option, including any differences in the determination of any such amount with regard to the periods described in clauses (i) and (ii) of subparagraph (A).
(9) Example of minimum payments and maximum repayment period
An example, based on a $10,000 outstanding balance and the interest rate (other than a rate not based on the index under the plan) which is, or was recently, in effect under such plan, showing the minimum monthly or periodic payment, and the time it would take to repay the entire $10,000 if the consumer paid only the minimum periodic payments and obtained no additional extensions of credit.
(10) Statement concerning balloon payments
If, under any repayment option of the plan, the payment of not more than the minimum periodic payments required under such option over the length of the repayment period—
(A) would not repay any of the principal balance; or
(B) would repay less than the outstanding balance by the end of such period,
as the case may be, a statement of such fact, including an explicit statement that at the end of such repayment period a balloon payment (as defined in
(11) Negative amortization
If applicable, a statement that—
(A) any limitation in the plan on the amount of any increase in the minimum payments may result in negative amortization;
(B) negative amortization increases the outstanding principal balance of the account; and
(C) negative amortization reduces the consumer's equity in the consumer's dwelling.
(12) Limitations and minimum amount requirements on extensions of credit
(A) Number and dollar amount limitations
Any limitation contained in the plan on the number of extensions of credit and the amount of credit which may be obtained during any month or other defined time period.
(B) Minimum balance and other transaction amount requirements
Any requirement which establishes a minimum amount for—
(i) the initial extension of credit to an account under the plan;
(ii) any subsequent extension of credit to an account under the plan; or
(iii) any outstanding balance of an account under the plan.
(13) Statement regarding consultation of tax advisor
A statement that the consumer should consult a tax advisor regarding the deductibility of interest and charges under the plan.
(14) Disclosure requirements established by Board
Any other term which the Board requires, in regulations, to be disclosed.
(b) Time and form of disclosures
(1) Time of disclosure
(A) In general
The disclosures required under subsection (a) of this section with respect to any open end consumer credit plan which provides for any extension of credit which is secured by the consumer's principal dwelling and the pamphlet required under subsection (e) of this section shall be provided to any consumer at the time the creditor distributes an application to establish an account under such plan to such consumer.
(B) Telephone, publications, and third party applications
In the case of telephone applications, applications contained in magazines or other publications, or applications provided by a third party, the disclosures required under subsection (a) of this section and the pamphlet required under subsection (e) of this section shall be provided by the creditor before the end of the 3-day period beginning on the date the creditor receives a completed application from a consumer.
(2) Form
(A) In general
Except as provided in paragraph (1)(B), the disclosures required under subsection (a) of this section shall be provided on or with any application to establish an account under an open end consumer credit plan which provides for any extension of credit which is secured by the consumer's principal dwelling.
(B) Segregation of required disclosures from other information
The disclosures required under subsection (a) of this section shall be conspicuously segregated from all other terms, data, or additional information provided in connection with the application, either by grouping the disclosures separately on the application form or by providing the disclosures on a separate form, in accordance with regulations of the Board.
(C) Precedence of certain information
The disclosures required by paragraphs (5), (6), and (7) of subsection (a) of this section shall precede all of the other required disclosures.
(D) Special provision relating to variable interest rate information
Whether or not the disclosures required under subsection (a) of this section are provided on the application form, the variable rate information described in subsection (a)(2) of this section may be provided separately from the other information required to be disclosed.
(3) Requirement for historical table
In preparing the table required under subsection (a)(2)(G) of this section, the creditor shall consistently select one rate of interest for each year and the manner of selecting the rate from year to year shall be consistent with the plan.
(c) Third party applications
In the case of an application to open an account under any open end consumer credit plan described in subsection (a) of this section which is provided to a consumer by any person other than the creditor—
(1) such person shall provide such consumer with—
(A) the disclosures required under subsection (a) of this section with respect to such plan, in accordance with subsection (b) of this section; and
(B) the pamphlet required under subsection (e) of this section; or
(2) if such person cannot provide specific terms about the plan because specific information about the plan terms is not available, no nonrefundable fee may be imposed in connection with such application before the end of the 3-day period beginning on the date the consumer receives the disclosures required under subsection (a) of this section with respect to the application.
(d) "Principal dwelling" defined
For purposes of this section and
(e) Pamphlet
In addition to the disclosures required under subsection (a) of this section with respect to an application to open an account under any open end consumer credit plan described in such subsection, the creditor or other person providing such disclosures to the consumer shall provide—
(1) a pamphlet published by the Board pursuant to section 4 of the Home Equity Consumer Protection Act of 1988; or
(2) any pamphlet which provides substantially similar information to the information described in such section, as determined by the Board.
(
References in Text
Section 4 of the Home Equity Consumer Protection Act of 1988, referred to in subsec. (e)(1), is section 4 of
Effective Date
For effective date of section, see Regulations; Effective Date note below.
Regulations; Effective Date
Section 7 of
"(a)
"(b)
"(1) any agreement to open an account under an open end consumer credit plan under which extensions of credit are secured by a consumer's principal dwelling which is entered into after the end of the 5-month period beginning on the date on which the regulations prescribed under subsection (a) become final; and
"(2) any application to open such an account which is distributed by, or received by a creditor, after the end of such 5-month period.
"(c)
Consumer Education
Section 4 of
"(1) a general description of open end consumer credit plans secured by the consumer's principal dwelling and the terms and conditions under which such loans are generally extended; and
"(2) a discussion of the potential advantages and disadvantages of such plans, including how to compare among home equity plans and between home equity and closed end credit plans."
Section Referred to in Other Sections
This section is referred to in
§1638. Transactions other than under an open end credit plan
(a) Required disclosures by creditor
For each consumer credit transaction other than under an open end credit plan, the creditor shall disclose each of the following items, to the extent applicable:
(1) The identity of the creditor required to make disclosure.
(2)(A) The "amount financed", using that term, which shall be the amount of credit of which the consumer has actual use. This amount shall be computed as follows, but the computations need not be disclosed and shall not be disclosed with the disclosures conspicuously segregated in accordance with subsection (b)(1) of this section:
(i) take the principal amount of the loan or the cash price less downpayment and trade-in;
(ii) add any charges which are not part of the finance charge or of the principal amount of the loan and which are financed by the consumer, including the cost of any items excluded from the finance charge pursuant to
(iii) subtract any charges which are part of the finance charge but which will be paid by the consumer before or at the time of the consummation of the transaction, or have been withheld from the proceeds of the credit.
(B) In conjunction with the disclosure of the amount financed, a creditor shall provide a statement of the consumer's right to obtain, upon a written request, a written itemization of the amount financed. The statement shall include spaces for a "yes" and "no" indication to be initialed by the consumer to indicate whether the consumer wants a written itemization of the amount financed. Upon receiving an affirmative indication, the creditor shall provide, at the time other disclosures are required to be furnished, a written itemization of the amount financed. For the purposes of this subparagraph, "itemization of the amount financed" means a disclosure of the following items, to the extent applicable:
(i) the amount that is or will be paid directly to the consumer;
(ii) the amount that is or will be credited to the consumer's account to discharge obligations owed to the creditor;
(iii) each amount that is or will be paid to third persons by the creditor on the consumer's behalf, together with an identification of or reference to the third person; and
(iv) the total amount of any charges described in the preceding subparagraph (A)(iii).
(3) The "finance charge", not itemized, using that term.
(4) The finance charge expressed as an "annual percentage rate", using that term. This shall not be required if the amount financed does not exceed $75 and the finance charge does not exceed $5, or if the amount financed exceeds $75 and the finance charge does not exceed $7.50.
(5) The sum of the amount financed and the finance charge, which shall be termed the "total of payments".
(6) The number, amount, and due dates or period of payments scheduled to repay the total of payments.
(7) In a sale of property or services in which the seller is the creditor required to disclose pursuant to
(8) Descriptive explanations of the terms "amount financed", "finance charge", "annual percentage rate", "total of payments", and "total sale price" as specified by the Board. The descriptive explanation of "total sale price" shall include reference to the amount of the downpayment.
(9) Where the credit is secured, a statement that a security interest has been taken in (A) the property which is purchased as part of the credit transaction, or (B) property not purchased as part of the credit transaction identified by item or type.
(10) Any dollar charge or percentage amount which may be imposed by a creditor solely on account of a late payment, other than a deferral or extension charge.
(11) A statement indicating whether or not the consumer is entitled to a rebate of any finance charge upon refinancing or prepayment in full pursuant to acceleration or otherwise, if the obligation involves a precomputed finance charge. A statement indicating whether or not a penalty will be imposed in those same circumstances if the obligation involves a finance charge computed from time to time by application of a rate to the unpaid principal balance.
(12) A statement that the consumer should refer to the appropriate contract document for any information such document provides about nonpayment, default, the right to accelerate the maturity of the debt, and prepayment rebates and penalties.
(13) In any residential mortgage transaction, a statement indicating whether a subsequent purchaser or assignee of the consumer may assume the debt obligation on its original terms and conditions.
(14) In the case of any variable interest rate residential mortgage transaction, in disclosures provided at application as prescribed by the Board for a variable rate transaction secured by the consumer's principal dwelling, at the option of the creditor, a statement that the periodic payments may increase or decrease substantially, and the maximum interest rate and payment for a $10,000 loan originated at a recent interest rate, as determined by the Board, assuming the maximum periodic increases in rates and payments under the program, or a historical example illustrating the effects of interest rate changes implemented according to the loan program.
(b) Form and timing of disclosures; residential mortgage transaction requirements
(1) Except as otherwise provided in this part, the disclosures required under subsection (a) of this section shall be made before the credit is extended. Except for the disclosures required by subsection (a)(1) of this section, all disclosures required under subsection (a) of this section and any disclosure provided for in subsection (b), (c), or (d) of
(2) In the case of a residential mortgage transaction, as defined in
(c) Timing of disclosures on unsolicited mailed or telephone purchase orders or loan requests
(1) If a creditor receives a purchase order by mail or telephone without personal solicitation, and the cash price and the total sale price and the terms of financing, including the annual percentage rate, are set forth in the creditor's catalog or other printed material distributed to the public, then the disclosures required under subsection (a) of this section may be made at any time not later than the date the first payment is due.
(2) If a creditor receives a request for a loan by mail or telephone without personal solicitation and the terms of financing, including the annual percentage rate for representative amounts of credit, are set forth in the creditor's printed material distributed to the public, or in the contract of loan or other printed material delivered to the obligor, then the disclosures required under subsection (a) of this section may be made at any time not later than the date the first payment is due.
(d) Timing of disclosure in cases of an addition of a deferred payment price to an existing outstanding balance
If a consumer credit sale is one of a series of consumer credit sales transactions made pursuant to an agreement providing for the addition of the deferred payment price of that sale to an existing outstanding balance, and the person to whom the credit is extended has approved in writing both the annual percentage rate or rates and the method of computing the finance charge or charges, and the creditor retains no security interest in any property as to which he has received payments aggregating the amount of the sales price including any finance charges attributable thereto, then the disclosure required under subsection (a) of this section for the particular sale may be made at any time not later than the date the first payment for that sale is due. For the purposes of this subsection, in the case of items purchased on different dates, the first purchased shall be deemed first paid for, and in the case of items purchased on the same date, the lowest price shall be deemed first paid for.
(
References in Text
The Real Estate Settlement Procedures Act, referred to in subsec. (b)(2), probably refers to the Real Estate Settlement Procedures Act of 1974,
Amendments
1996—Subsec. (a)(14).
1980—Subsec. (a).
Subsec. (b).
Subsec. (c).
Effective Date of 1980 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1639. Requirements for certain mortgages
(a) Disclosures
(1) Specific disclosures
In addition to other disclosures required under this subchapter, for each mortgage referred to in
(A) "You are not required to complete this agreement merely because you have received these disclosures or have signed a loan application.".
(B) "If you obtain this loan, the lender will have a mortgage on your home. You could lose your home, and any money you have put into it, if you do not meet your obligations under the loan.".
(2) Annual percentage rate
In addition to the disclosures required under paragraph (1), the creditor shall disclose—
(A) in the case of a credit transaction with a fixed rate of interest, the annual percentage rate and the amount of the regular monthly payment; or
(B) in the case of any other credit transaction, the annual percentage rate of the loan, the amount of the regular monthly payment, a statement that the interest rate and monthly payment may increase, and the amount of the maximum monthly payment, based on the maximum interest rate allowed pursuant to
(b) Time of disclosures
(1) In general
The disclosures required by this section shall be given not less than 3 business days prior to consummation of the transaction.
(2) New disclosures required
(A) In general
After providing the disclosures required by this section, a creditor may not change the terms of the extension of credit if such changes make the disclosures inaccurate, unless new disclosures are provided that meet the requirements of this section.
(B) Telephone disclosure
A creditor may provide new disclosures pursuant to subparagraph (A) by telephone, if—
(i) the change is initiated by the consumer; and
(ii) at the consummation of the transaction under which the credit is extended—
(I) the creditor provides to the consumer the new disclosures, in writing; and
(II) the creditor and consumer certify in writing that the new disclosures were provided by telephone, by not later than 3 days prior to the date of consummation of the transaction.
(3) Modifications
The Board may, if it finds that such action is necessary to permit homeowners to meet bona fide personal financial emergencies, prescribe regulations authorizing the modification or waiver of rights created under this subsection, to the extent and under the circumstances set forth in those regulations.
(c) No Prepayment penalty
(1) In general
(A) Limitation on terms
A mortgage referred to in
(B) Construction
For purposes of this subsection, any method of computing a refund of unearned scheduled interest is a prepayment penalty if it is less favorable to the consumer than the actuarial method (as that term is defined in
(2) Exception
Notwithstanding paragraph (1), a mortgage referred to in
(A) at the time the mortgage is consummated—
(i) the consumer is not liable for an amount of monthly indebtedness payments (including the amount of credit extended or to be extended under the transaction) that is greater than 50 percent of the monthly gross income of the consumer; and
(ii) the income and expenses of the consumer are verified by a financial statement signed by the consumer, by a credit report, and in the case of employment income, by payment records or by verification from the employer of the consumer (which verification may be in the form of a copy of a pay stub or other payment record supplied by the consumer);
(B) the penalty applies only to a prepayment made with amounts obtained by the consumer by means other than a refinancing by the creditor under the mortgage, or an affiliate of that creditor;
(C) the penalty does not apply after the end of the 5-year period beginning on the date on which the mortgage is consummated; and
(D) the penalty is not prohibited under other applicable law.
(d) Limitations after default
A mortgage referred to in
(e) No balloon payments
A mortgage referred to in
(f) No negative amortization
A mortgage referred to in
(g) No prepaid payments
A mortgage referred to in
(h) Prohibition on extending credit without regard to payment ability of consumer
A creditor shall not engage in a pattern or practice of extending credit to consumers under mortgages referred to in
(i) Requirements for payments under home improvement contracts
A creditor shall not make a payment to a contractor under a home improvement contract from amounts extended as credit under a mortgage referred to in
(1) in the form of an instrument that is payable to the consumer or jointly to the consumer and the contractor; or
(2) at the election of the consumer, by a third party escrow agent in accordance with terms established in a written agreement signed by the consumer, the creditor, and the contractor before the date of payment.
(j) Consequence of failure to comply
Any mortgage that contains a provision prohibited by this section shall be deemed a failure to deliver the material disclosures required under this subchapter, for the purpose of
(k) "Affiliate" defined
For purposes of this section, the term "affiliate" has the same meaning as in
(l) Discretionary regulatory authority of Board
(1) Exemptions
The Board may, by regulation or order, exempt specific mortgage products or categories of mortgages from any or all of the prohibitions specified in subsections (c) through (i) of this section, if the Board finds that the exemption—
(A) is in the interest of the borrowing public; and
(B) will apply only to products that maintain and strengthen home ownership and equity protection.
(2) Prohibitions
The Board, by regulation or order, shall prohibit acts or practices in connection with—
(A) mortgage loans that the Board finds to be unfair, deceptive, or designed to evade the provisions of this section; and
(B) refinancing of mortgage loans that the Board finds to be associated with abusive lending practices, or that are otherwise not in the interest of the borrower.
(
Prior Provisions
A prior section 1639,
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "section".
§1640. Civil liability
(a) Individual or class action for damages; amount of award; factors determining amount of award
Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part, including any requirement under
(1) any actual damage sustained by such person as a result of the failure;
(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, (ii) in the case of an individual action relating to a consumer lease under part E of this subchapter, 25 per centum of the total amount of monthly payments under the lease, except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000, or (iii) in the case of an individual action relating to a credit transaction not under an open end credit plan that is secured by real property or a dwelling, not less than $200 or greater than $2,000; or
(B) in the case of a class action, such amount as the court may allow, except that as to each member of the class no minimum recovery shall be applicable, and the total recovery under this subparagraph in any class action or series of class actions arising out of the same failure to comply by the same creditor shall not be more than the lesser of $500,000 or 1 per centum of the net worth of the creditor;
(3) in the case of any successful action to enforce the foregoing liability or in any action in which a person is determined to have a right of rescission under
(4) in the case of a failure to comply with any requirement under
In determining the amount of award in any class action, the court shall consider, among other relevant factors, the amount of any actual damages awarded, the frequency and persistence of failures of compliance by the creditor, the resources of the creditor, the number of persons adversely affected, and the extent to which the creditor's failure of compliance was intentional. In connection with the disclosures referred to in subsections (a) and (b) of
(b) Correction of errors
A creditor or assignee has no liability under this section or
(c) Unintentional violations; bona fide errors
A creditor or assignee may not be held liable in any action brought under this section or
(d) Liability in transaction or lease involving multiple obligors
When there are multiple obligors in a consumer credit transaction or consumer lease, there shall be no more than one recovery of damages under subsection (a)(2) of this section for a violation of this subchapter.
(e) Jurisdiction of courts; limitations on actions; State attorney general enforcement
Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation. This subsection does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action, except as otherwise provided by State law. An action to enforce a violation of
(1) intervene in the action;
(2) upon intervening—
(A) remove the action to the appropriate United States district court, if it was not originally brought there; and
(B) be heard on all matters arising in the action; and
(3) file a petition for appeal.
(f) Good faith compliance with rule, regulation, or interpretation of Board or with interpretation or approval of duly authorized official or employee of Federal Reserve System
No provision of this section,
(g) Recovery for multiple failures to disclose
The multiple failure to disclose to any person any information required under this part or part D or E of this subchapter to be disclosed in connection with a single account under an open end consumer credit plan, other single consumer credit sale, consumer loan, consumer lease, or other extension of consumer credit, shall entitle the person to a single recovery under this section but continued failure to disclose after a recovery has been granted shall give rise to rights to additional recoveries. This subsection does not bar any remedy permitted by
(h) Offset from amount owed to creditor or assignee; rights of defaulting consumer
A person may not take any action to offset any amount for which a creditor or assignee is potentially liable to such person under subsection (a)(2) of this section against any amount owed by such person, unless the amount of the creditor's or assignee's liability under this subchapter has been determined by judgment of a court of competent jurisdiction in an action of which such person was a party. This subsection does not bar a consumer then in default on the obligation from asserting a violation of this subchapter as an original action, or as a defense or counterclaim to an action to collect amounts owed by the consumer brought by a person liable under this subchapter.
(i) Class action moratorium
(1) In general
During the period beginning on May 18, 1995, and ending on October 1, 1995, no court may enter any order certifying any class in any action under this subchapter—
(A) which is brought in connection with any credit transaction not under an open end credit plan which is secured by a first lien on real property or a dwelling and constitutes a refinancing or consolidation of an existing extension of credit; and
(B) which is based on the alleged failure of a creditor—
(i) to include a charge actually incurred (in connection with the transaction) in the finance charge disclosed pursuant to
(ii) to properly make any other disclosure required under
(iii) to provide proper notice of rescission rights under
(2) Exceptions for certain alleged violations
Paragraph (1) shall not apply with respect to any action—
(A) described in clause (i) or (ii) of paragraph (1)(B), if the amount disclosed as the finance charge results in an annual percentage rate that exceeds the tolerance provided in
(B) described in paragraph (1)(B)(iii), if—
(i) no notice relating to rescission rights under
(ii) proper notice was not provided for any reason other than the reason described in such paragraph.
(
Amendments
1995—Subsec. (a)(2)(A)(iii).
Subsec. (i).
1994—Subsec. (a)(4).
Subsec. (e).
"(1) intervene in the action;
"(2) upon intervening—
"(A) remove the action to the appropriate United States district court, if it was not originally brought there; and
"(B) be heard on all matters arising in the action; and
"(3) file a petition for appeal."
1988—Subsec. (a).
1980—Subsec. (a).
Subsec. (a)(2)(B).
Subsec. (a)(3).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Subsec. (g).
Subsec. (h).
1976—Subsec. (a).
Subsec. (a)(2)(A).
Subsec. (a)(2)(B).
Subsec. (b).
Subsec. (f).
Subsec. (g).
1974—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (f).
Subsec. (g).
Subsec. (h).
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Effective Date of 1974 Amendment
Amendment by
Determination of Liability Prior to October 28, 1974
Section 408(e) of
Section Referred to in Other Sections
This section is referred to in
§1641. Liability of assignees
(a) Prerequisites
Except as otherwise specifically provided in this subchapter, any civil action for a violation of this subchapter or proceeding under
(b) Proof of compliance with statutory provisions
Except as provided in
(c) Right of rescission by consumer unaffected
Any consumer who has the right to rescind a transaction under
(d) Rights upon assignment of certain mortgages
(1) In general
Any person who purchases or is otherwise assigned a mortgage referred to in
(2) Limitation on damages
Notwithstanding any other provision of law, relief provided as a result of any action made permissible by paragraph (1) may not exceed—
(A) with respect to actions based upon a violation of this subchapter, the amount specified in
(B) with respect to all other causes of action, the sum of—
(i) the amount of all remaining indebtedness; and
(ii) the total amount paid by the consumer in connection with the transaction.
(3) Offset
The amount of damages that may be awarded under paragraph (2)(B) shall be reduced by the amount of any damages awarded under paragraph (2)(A).
(4) Notice
Any person who sells or otherwise assigns a mortgage referred to in
(e) Liability of assignee for consumer credit transactions secured by real property
(1) In general
Except as otherwise specifically provided in this subchapter, any civil action against a creditor for a violation of this subchapter, and any proceeding under
(A) the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement provided in connection with such transaction pursuant to this subchapter; and
(B) the assignment to the assignee was voluntary.
(2) Violation apparent on the face of the disclosure described
For the purpose of this section, a violation is apparent on the face of the disclosure statement if—
(A) the disclosure can be determined to be incomplete or inaccurate by a comparison among the disclosure statement, any itemization of the amount financed, the note, or any other disclosure of disbursement; or
(B) the disclosure statement does not use the terms or format required to be used by this subchapter.
(f) Treatment of servicer
(1) In general
A servicer of a consumer obligation arising from a consumer credit transaction shall not be treated as an assignee of such obligation for purposes of this section unless the servicer is or was the owner of the obligation.
(2) Servicer not treated as owner on basis of assignment for administrative convenience
A servicer of a consumer obligation arising from a consumer credit transaction shall not be treated as the owner of the obligation for purposes of this section on the basis of an assignment of the obligation from the creditor or another assignee to the servicer solely for the administrative convenience of the servicer in servicing the obligation. Upon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name, address, and telephone number of the owner of the obligation or the master servicer of the obligation.
(3) "Servicer" defined
For purposes of this subsection, the term "servicer" has the same meaning as in
(4) Applicability
This subsection shall apply to all consumer credit transactions in existence or consummated on or after September 30, 1995.
(
Amendments
1995—Subsec. (e).
Subsec. (f).
1994—Subsec. (d).
1980—
Effective Date of 1980 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1642. Issuance of credit cards
No credit card shall be issued except in response to a request or application therefor. This prohibition does not apply to the issuance of a credit card in renewal of, or in substitution for, an accepted credit card.
(
Effective Date
Section 503(1) of
Section Referred to in Other Sections
This section is referred to in
§1643. Liability of holder of credit card
(a) Limits on liability
(1) A cardholder shall be liable for the unauthorized use of a credit card only if—
(A) the card is an accepted credit card;
(B) the liability is not in excess of $50;
(C) the card issuer gives adequate notice to the cardholder of the potential liability;
(D) the card issuer has provided the cardholder with a description of a means by which the card issuer may be notified of loss or theft of the card, which description may be provided on the face or reverse side of the statement required by
(E) the unauthorized use occurs before the card issuer has been notified that an unauthorized use of the credit card has occurred or may occur as the result of loss, theft, or otherwise; and
(F) the card issuer has provided a method whereby the user of such card can be identified as the person authorized to use it.
(2) For purposes of this section, a card issuer has been notified when such steps as may be reasonably required in the ordinary course of of business to provide the card issuer with the pertinent information have been taken, whether or not any particular officer, employee, or agent of the card issuer does in fact receive such information.
(b) Burden of proof
In any action by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized or, if the use was unauthorized, then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of a credit card, as set forth in subsection (a) of this section, have been met.
(c) Liability imposed by other laws or by agreement with issuer
Nothing in this section imposes liability upon a cardholder for the unauthorized use of a credit card in excess of his liability for such use under other applicable law or under any agreement with the card issuer.
(d) Exclusiveness of liability
Except as provided in this section, a cardholder incurs no liability from the unauthorized use of a credit card.
(
Amendments
1980—Subsec. (a).
Effective Date of 1980 Amendment
Amendment by
Effective Date
Section 503(2) of
Section Referred to in Other Sections
This section is referred to in
§1644. Fraudulent use of credit cards; penalties
(a) Use, attempt or conspiracy to use card in transaction affecting interstate or foreign commerce
Whoever knowingly in a transaction affecting interstate or foreign commerce, uses or attempts or conspires to use any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card to obtain money, goods, services, or anything else of value which within any one-year period has a value aggregating $1,000 or more; or
(b) Transporting, attempting or conspiring to transport card in interstate commerce
Whoever, with unlawful or fraudulent intent, transports or attempts or conspires to transport in interstate or foreign commerce a counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card knowing the same to be counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained; or
(c) Use of interstate commerce to sell or transport card
Whoever, with unlawful or fraudulent intent, uses any instrumentality of interstate or foreign commerce to sell or transport a counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card knowing the same to be counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained; or
(d) Receipt, concealment, etc., of goods obtained by use of card
Whoever knowingly receives, conceals, uses, or transports money, goods, services, or anything else of value (except tickets for interstate or foreign transportation) which (1) within any one-year period has a value aggregating $1,000 or more, (2) has moved in or is part of, or which constitutes interstate or foreign commerce, and (3) has been obtained with a counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card; or
(e) Receipt, concealment, etc., of tickets for interstate or foreign transportation obtained by use of card
Whoever knowingly receives, conceals, uses, sells, or transports in interstate or foreign commerce one or more tickets for interstate or foreign transportation, which (1) within any one-year period have a value aggregating $500 or more, and (2) have been purchased or obtained with one or more counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit cards; or
(f) Furnishing of money, etc., through use of card
Whoever in a transaction affecting interstate or foreign commerce furnishes money, property, services, or anything else of value, which within any one-year period has a value aggregating $1,000 or more, through the use of any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card knowing the same to be counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained—
shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
(
Amendments
1974—
Effective Date of 1974 Amendment
Amendment by
Effective Date
Section 503(3) of
Section Referred to in Other Sections
This section is referred to in
§1645. Business credit cards; limits on liability of employees
The exemption provided by
(
Effective Date
Section effective Oct. 28, 1974, see section 416 of
§1646. Dissemination of annual percentage rates; implementation, etc.
(a) Annual percentage rates
The Board shall collect, publish, and disseminate to the public, on a demonstration basis in a number of standard metropolitan statistical areas to be determined by the Board, the annual percentage rates charged for representative types of nonsale credit by creditors in such areas. For the purpose of this section, the Board is authorized to require creditors in such areas to furnish information necessary for the Board to collect, publish, and disseminate such information.
(b) Credit card price and availability information
(1) Collection required
The Board shall collect, on a semiannual basis, credit card price and availability information, including the information required to be disclosed under
(2) Sample requirements
The broad sample of financial institutions required under paragraph (1) shall include—
(A) the 25 largest issuers of credit cards; and
(B) not less than 125 additional financial institutions selected by the Board in a manner that ensures—
(i) an equitable geographical distribution within the sample; and
(ii) the representation of a wide spectrum of institutions within the sample.
(3) Report of information from sample
Each financial institution in the broad sample established pursuant to paragraph (2) shall report the information to the Board in accordance with such regulations or orders as the Board may prescribe.
(4) Public availability of collected information; report to Congress
The Board shall—
(A) make the information collected pursuant to this subsection available to the public upon request; and
(B) report such information semiannually to Congress.
(c) Implementation
The Board is authorized to enter into contracts or other arrangements with appropriate persons, organizations, or State agencies to carry out its functions under subsections (a) and (b) of this section and to furnish financial assistance in support thereof.
(
Amendments
1988—Subsecs. (b), (c).
Effective Date
Section effective on expiration of two years and six months after Mar. 31, 1980, with all regulations, forms, and clauses required to be prescribed to be promulgated at least one year prior to such effective date, and allowing any creditor to comply with any amendments, in accordance with the regulations, forms, and clauses prescribed by the Board prior to such effective date, see section 625 of
§1647. Home equity plans
(a) Index requirement
In the case of extensions of credit under an open end consumer credit plan which are subject to a variable rate and are secured by a consumer's principal dwelling, the index or other rate of interest to which changes in the annual percentage rate are related shall be based on an index or rate of interest which is publicly available and is not under the control of the creditor.
(b) Grounds for acceleration of outstanding balance
A creditor may not unilaterally terminate any account under an open end consumer credit plan under which extensions of credit are secured by a consumer's principal dwelling and require the immediate repayment of any outstanding balance at such time, except in the case of—
(1) fraud or material misrepresentation on the part of the consumer in connection with the account;
(2) failure by the consumer to meet the repayment terms of the agreement for any outstanding balance; or
(3) any other action or failure to act by the consumer which adversely affects the creditor's security for the account or any right of the creditor in such security.
This subsection does not apply to reverse mortgage transactions.
(c) Change in terms
(1) In general
No open end consumer credit plan under which extensions of credit are secured by a consumer's principal dwelling may contain a provision which permits a creditor to change unilaterally any term required to be disclosed under
(2) Certain changes not precluded
Notwithstanding the provisions of subsection 1 (1), a creditor may make any of the following changes:
(A) Change the index and margin applicable to extensions of credit under such plan if the index used by the creditor is no longer available and the substitute index and margin would result in a substantially similar interest rate.
(B) Prohibit additional extensions of credit or reduce the credit limit applicable to an account under the plan during any period in which the value of the consumer's principal dwelling which secures any outstanding balance is significantly less than the original appraisal value of the dwelling.
(C) Prohibit additional extensions of credit or reduce the credit limit applicable to the account during any period in which the creditor has reason to believe that the consumer will be unable to comply with the repayment requirements of the account due to a material change in the consumer's financial circumstances.
(D) Prohibit additional extensions of credit or reduce the credit limit applicable to the account during any period in which the consumer is in default with respect to any material obligation of the consumer under the agreement.
(E) Prohibit additional extensions of credit or reduce the credit limit applicable to the account during any period in which—
(i) the creditor is precluded by government action from imposing the annual percentage rate provided for in the account agreement; or
(ii) any government action is in effect which adversely affects the priority of the creditor's security interest in the account to the extent that the value of the creditor's secured interest in the property is less than 120 percent of the amount of the credit limit applicable to the account.
(F) Any change that will benefit the consumer.
(3) Material obligations
Upon the request of the consumer and at the time an agreement is entered into by a consumer to open an account under an open end consumer credit plan under which extensions of credit are secured by the consumer's principal dwelling, the consumer shall be given a list of the categories of contract obligations which are deemed by the creditor to be material obligations of the consumer under the agreement for purposes of paragraph (2)(D).
(4) Consumer benefit
(A) In general
For purposes of paragraph (2)(F), a change shall be deemed to benefit the consumer if the change is unequivocally beneficial to the borrower and the change is beneficial through the entire term of the agreement.
(B) Board categorization
The Board may, by regulation, determine categories of changes that benefit the consumer.
(d) Terms changed after application
If any term or condition described in
(e) Additional requirements relating to refunds and imposition of nonrefundable fees
(1) In general
No nonrefundable fee may be imposed by a creditor or any other person in connection with any application by a consumer to establish an account under any open end consumer credit plan which provides for extensions of credit which are secured by a consumer's principal dwelling before the end of the 3-day period beginning on the date such consumer receives the disclosure required under
(2) Constructive receipt
For purposes of determining when a nonrefundable fee may be imposed in accordance with this subsection if the disclosures and pamphlet referred to in paragraph (1) are mailed to the consumer, the date of the receipt of the disclosures by such consumer shall be deemed to be 3 business days after the date of mailing by the creditor.
(
Amendments
1994—Subsec. (b).
Effective Date
For effective date of section, see Regulations; Effective Date note below.
Regulations; Effective Date
For provisions relating to promulgation of regulations to implement amendment by
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "paragraph".
§1648. Reverse mortgages
(a) In general
In addition to the disclosures required under this subchapter, for each reverse mortgage, the creditor shall, not less than 3 days prior to consummation of the transaction, disclose to the consumer in conspicuous type a good faith estimate of the projected total cost of the mortgage to the consumer expressed as a table of annual interest rates. Each annual interest rate shall be based on a projected total future credit extension balance under a projected appreciation rate for the dwelling and a term for the mortgage. The disclosure shall include—
(1) statements of the annual interest rates for not less than 3 projected appreciation rates and not less than 3 credit transaction periods, as determined by the Board, including—
(A) a short-term reverse mortgage;
(B) a term equaling the actuarial life expectancy of the consumer; and
(C) such longer term as the Board deems appropriate; and
(2) a statement that the consumer is not obligated to complete the reverse mortgage transaction merely because the consumer has received the disclosure required under this section or has signed an application for the reverse mortgage.
(b) Projected total cost
In determining the projected total cost of the mortgage to be disclosed to the consumer under subsection (a) of this section, the creditor shall take into account—
(1) any shared appreciation or equity that the lender will, by contract, be entitled to receive;
(2) all costs and charges to the consumer, including the costs of any associated annuity that the consumer elects or is required to purchase as part of the reverse mortgage transaction;
(3) all payments to and for the benefit of the consumer, including, in the case in which an associated annuity is purchased (whether or not required by the lender as a condition of making the reverse mortgage), the annuity payments received by the consumer and financed from the proceeds of the loan, instead of the proceeds used to finance the annuity; and
(4) any limitation on the liability of the consumer under reverse mortgage transactions (such as nonrecourse limits and equity conservation agreements).
(
§1649. Certain limitations on liability
(a) Limitations on liability
For any closed end consumer credit transaction that is secured by real property or a dwelling, that is subject to this subchapter, and that is consummated before September 30, 1995, a creditor or any assignee of a creditor shall have no civil, administrative, or criminal liability under this subchapter for, and a consumer shall have no extended rescission rights under
(1) the creditor's treatment, for disclosure purposes, of—
(A) taxes described in
(B) fees described in section 1605(e)(2) and (5) of this title;
(C) fees and amounts referred to in the 3rd sentence of
(D) borrower-paid mortgage broker fees referred to in
(2) the form of written notice used by the creditor to inform the obligor of the rights of the obligor under
(3) any disclosure relating to the finance charge imposed with respect to the transaction if the amount or percentage actually disclosed—
(A) may be treated as accurate for purposes of this subchapter if the amount disclosed as the finance charge does not vary from the actual finance charge by more than $200;
(B) may, under
(C) is greater than the amount or percentage required to be disclosed under this subchapter.
(b) Exceptions
Subsection (a) of this section shall not apply to—
(1) any individual action or counterclaim brought under this subchapter which was filed before June 1, 1995;
(2) any class action brought under this subchapter for which a final order certifying a class was entered before January 1, 1995;
(3) the named individual plaintiffs in any class action brought under this subchapter which was filed before June 1, 1995; or
(4) any consumer credit transaction with respect to which a timely notice of rescission was sent to the creditor before June 1, 1995.
(
Amendments
1996—Subsec. (a).
Effective Date of 1996 Amendment
Section 2107(b) of div. A of
Section Referred to in Other Sections
This section is referred to in
Part C—Credit Advertising
Part Referred to in Other Sections
This part is referred to in
§1661. Catalogs and multiple-page advertisements
For the purposes of this part, a catalog or other multiple-page advertisement shall be considered a single advertisement if it clearly and conspicuously displays a credit terms table on which the information required to be stated under this part is clearly set forth.
(
Effective Date
Section 504(b) of
§1662. Advertising of downpayments and installments
No advertisement to aid, promote, or assist directly or indirectly any extension of consumer credit may state
(1) that a specific periodic consumer credit amount or installment amount can be arranged, unless the creditor usually and customarily arranges credit payments or installments for that period and in that amount.
(2) that a specified downpayment is required in connection with any extension of consumer credit, unless the creditor usually and customarily arranges downpayments in that amount.
(
§1663. Advertising of open end credit plans
No advertisement to aid, promote, or assist directly or indirectly the extension of consumer credit under an open end credit plan may set forth any of the specific terms of that plan unless it also clearly and conspicuously sets forth all of the following items:
(1) Any minimum or fixed amount which could be imposed.
(2) In any case in which periodic rates may be used to compute the finance charge, the periodic rates expressed as annual percentage rates.
(3) Any other term that the Board may by regulation require to be disclosed.
(
Amendments
1980—
Effective Date of 1980 Amendment
Amendment by
§1664. Advertising of credit other than open end plans
(a) Exclusion of open end credit plans
Except as provided in subsection (b) of this section, this section applies to any advertisement to aid, promote, or assist directly or indirectly any consumer credit sale, loan, or other extension of credit subject to the provisions of this subchapter, other than an open end credit plan.
(b) Advertisements of residential real estate
The provisions of this section do not apply to advertisements of residential real estate except to the extent that the Board may by regulation require.
(c) Rate of finance charge expressed as annual percentage rate
If any advertisement to which this section applies states the rate of a finance charge, the advertisement shall state the rate of that charge expressed as an annual percentage rate.
(d) Requisite disclosures in advertisement
If any advertisement to which this section applies states the amount of the downpayment, if any, the amount of any installment payment, the dollar amount of any finance charge, or the number of installments or the period of repayment, then the advertisement shall state all of the following items:
(1) The downpayment, if any.
(2) The terms of repayment.
(3) The rate of the finance charge expressed as an annual percentage rate.
(
Amendments
1980—Subsec. (d).
Effective Date of 1980 Amendment
Amendment by
§1665. Nonliability of advertising media
There is no liability under this part on the part of any owner or personnel, as such, of any medium in which an advertisement appears or through which it is disseminated.
(
§1665a. Use of annual percentage rate in oral disclosures; exceptions
In responding orally to any inquiry about the cost of credit, a creditor, regardless of the method used to compute finance charges, shall state rates only in terms of the annual percentage rate, except that in the case of an open end credit plan, the periodic rate also may be stated and, in the case of an other than open end credit plan where a major component of the finance charge consists of interest computed at a simple annual rate, the simple annual rate also may be stated. The Board may, by regulation, modify the requirements of this section or provide an exception from this section for a transaction or class of transactions for which the creditor cannot determine in advance the applicable annual percentage rate.
(
Amendments
1980—
Effective Date of 1980 Amendment
Amendment by
Effective Date
Section 416 of title IV of
§1665b. Advertising of open end consumer credit plans secured by consumer's principal dwelling
(a) In general
If any advertisement to aid, promote, or assist, directly or indirectly, the extension of consumer credit through an open end consumer credit plan under which extensions of credit are secured by the consumer's principal dwelling states, affirmatively or negatively, any of the specific terms of the plan, including any periodic payment amount required under such plan, such advertisement shall also clearly and conspicuously set forth the following information, in such form and manner as the Board may require:
(1) Loan fees and opening cost estimates
Any loan fee the amount of which is determined as a percentage of the credit limit applicable to an account under the plan and an estimate of the aggregate amount of other fees for opening the account, based on the creditor's experience with the plan and stated as a single amount or as a reasonable range.
(2) Periodic rates
In any case in which periodic rates may be used to compute the finance charge, the periodic rates expressed as an annual percentage rate.
(3) Highest annual percentage rate
The highest annual percentage rate which may be imposed under the plan.
(4) Other information
Any other information the Board may by regulation require.
(b) Tax deductibility
If any advertisement described in subsection (a) of this section contains a statement that any interest expense incurred with respect to the plan is or may be tax deductible, the advertisement shall not be misleading with respect to such deductibility.
(c) Certain terms prohibited
No advertisement described in subsection (a) of this section with respect to any home equity account may refer to such loan as "free money" or use other terms determined by the Board by regulation to be misleading.
(d) Discounted initial rate
(1) In general
If any advertisement described in subsection (a) of this section includes an initial annual percentage rate that is not determined by the index or formula used to make later interest rate adjustments, the advertisement shall also state with equal prominence the current annual percentage rate that would have been applied using the index or formula if such initial rate had not been offered.
(2) Quoted rate must be reasonably current
The annual percentage rate required to be disclosed under the paragraph (1) rate must be current as of a reasonable time given the media involved.
(3) Period during which initial rate is in effect
Any advertisement to which paragraph (1) applies shall also state the period of time during which the initial annual percentage rate referred to in such paragraph will be in effect.
(e) Balloon payment
If any advertisement described in subsection (a) of this section contains a statement regarding the minimum monthly payment under the plan, the advertisement shall also disclose, if applicable, the fact that the plan includes a balloon payment.
(f) "Balloon payment" defined
For purposes of this section and
(1) the account holder is required to repay the entire amount of any outstanding balance as of a specified date or at the end of a specified period of time, as determined in accordance with the terms of the agreement pursuant to which such credit is extended; and
(2) the aggregate amount of the minimum periodic payments required would not fully amortize such outstanding balance by such date or at the end of such period.
(
Effective Date
For effective date of section, see Regulations; Effective Date note below.
Regulations; Effective Date
For provisions relating to promulgation of regulations to implement amendment by
Section Referred to in Other Sections
This section is referred to in
Part D—Credit Billing
Part Referred to in Other Sections
This part is referred to in
§1666. Correction of billing errors
(a) Written notice by obligor to creditor; time for and contents of notice; procedure upon receipt of notice by creditor
If a creditor, within sixty days after having transmitted to an obligor a statement of the obligor's account in connection with an extension of consumer credit, receives at the address disclosed under
(1) sets forth or otherwise enables the creditor to identify the name and account number (if any) of the obligor,
(2) indicates the obligor's belief that the statement contains a billing error and the amount of such billing error, and
(3) sets forth the reasons for the obligor's belief (to the extent applicable) that the statement contains a billing error,
the creditor shall, unless the obligor has, after giving such written notice and before the expiration of the time limits herein specified, agreed that the statement was correct—
(A) not later than thirty days after the receipt of the notice, send a written acknowledgment thereof to the obligor, unless the action required in subparagraph (B) is taken within such thirty-day period, and
(B) not later than two complete billing cycles of the creditor (in no event later than ninety days) after the receipt of the notice and prior to taking any action to collect the amount, or any part thereof, indicated by the obligor under paragraph (2) either—
(i) make appropriate corrections in the account of the obligor, including the crediting of any finance charges on amounts erroneously billed, and transmit to the obligor a notification of such corrections and the creditor's explanation of any change in the amount indicated by the obligor under paragraph (2) and, if any such change is made and the obligor so requests, copies of documentary evidence of the obligor's indebtedness; or
(ii) send a written explanation or clarification to the obligor, after having conducted an investigation, setting forth to the extent applicable the reasons why the creditor believes the account of the obligor was correctly shown in the statement and, upon request of the obligor, provide copies of documentary evidence of the obligor's indebtedness. In the case of a billing error where the obligor alleges that the creditor's billing statement reflects goods not delivered to the obligor or his designee in accordance with the agreement made at the time of the transaction, a creditor may not construe such amount to be correctly shown unless he determines that such goods were actually delivered, mailed, or otherwise sent to the obligor and provides the obligor with a statement of such determination.
After complying with the provisions of this subsection with respect to an alleged billing error, a creditor has no further responsibility under this section if the obligor continues to make substantially the same allegation with respect to such error.
(b) Billing error
For the purpose of this section, a "billing error" consists of any of the following:
(1) A reflection on a statement of an extension of credit which was not made to the obligor or, if made, was not in the amount reflected on such statement.
(2) A reflection on a statement of an extension of credit for which the obligor requests additional clarification including documentary evidence thereof.
(3) A reflection on a statement of goods or services not accepted by the obligor or his designee or not delivered to the obligor or his designee in accordance with the agreement made at the time of a transaction.
(4) The creditor's failure to reflect properly on a statement a payment made by the obligor or a credit issued to the obligor.
(5) A computation error or similar error of an accounting nature of the creditor on a statement.
(6) Failure to transmit the statement required under
(7) Any other error described in regulations of the Board.
(c) Action by creditor to collect amount or any part thereof regarded by obligor to be a billing error
For the purposes of this section, "action to collect the amount, or any part thereof, indicated by an obligor under paragraph (2)" does not include the sending of statements of account, which may include finance charges on amounts in dispute, to the obligor following written notice from the obligor as specified under subsection (a) of this section, if—
(1) the obligor's account is not restricted or closed because of the failure of the obligor to pay the amount indicated under paragraph (2) of subsection (a) of this section, and
(2) the creditor indicates the payment of such amount is not required pending the creditor's compliance with this section.
Nothing in this section shall be construed to prohibit any action by a creditor to collect any amount which has not been indicated by the obligor to contain a billing error.
(d) Restricting or closing by creditor of account regarded by obligor to contain a billing error
Pursuant to regulations of the Board, a creditor operating an open end consumer credit plan may not, prior to the sending of the written explanation or clarification required under paragraph (B)(ii), restrict or close an account with respect to which the obligor has indicated pursuant to subsection (a) of this section that he believes such account to contain a billing error solely because of the obligor's failure to pay the amount indicated to be in error. Nothing in this subsection shall be deemed to prohibit a creditor from applying against the credit limit on the obligor's account the amount indicated to be in error.
(e) Effect of noncompliance with requirements by creditor
Any creditor who fails to comply with the requirements of this section or
(
Amendments
1980—Subsec. (a).
Subsec. (b)(6), (7).
Subsec. (c).
Effective Date of 1980 Amendment
Amendment buy
Effective Date
Section 308 of title III of
Short Title
Title III of
Section Referred to in Other Sections
This section is referred to in
§1666a. Regulation of credit reports
(a) Reports by creditor on obligor's failure to pay amount regarded as billing error
After receiving a notice from an obligor as provided in
(b) Reports by creditor on delinquent amounts in dispute; notification of obligor of parties notified of delinquency
If a creditor receives a further written notice from an obligor that an amount is still in dispute within the time allowed for payment under subsection (a) of this section, a creditor may not report to any third party that the amount of the obligor is delinquent because the obligor has failed to pay an amount which he has indicated under
(c) Reports by creditor of subsequent resolution of delinquent amounts
A creditor shall report any subsequent resolution of any delinquencies reported pursuant to subsection (b) of this section to the parties to whom such delinquencies were initially reported.
(
Section Referred to in Other Sections
This section is referred to in
§1666b. Length of billing period in credit statement for imposition of finance charge; effect of failure of timely mailing or delivery of statement
(a) Additional finance charge
If an open end consumer credit plan provides a time period within which an obligor may repay any portion of the credit extended without incurring an additional finance charge, such additional finance charge may not be imposed with respect to such portion of the credit extended for the billing cycle of which such period is a part unless a statement which includes the amount upon which the finance charge for that period is based was mailed at least fourteen days prior to the date specified in the statement by which payment must be made in order to avoid imposition of that finance charge.
(b) Excusable cause
Subsection (a) of this section does not apply in any case where a creditor has been prevented, delayed, or hindered in making timely mailing or delivery of such periodic statement within the time period specified in such subsection because of an act of God, war, natural disaster, strike, or other excusable or justifiable cause, as determined under regulations of the Board.
(
§1666c. Prompt crediting of payments; imposition of finance charge
Payments received from an obligor under an open end consumer credit plan by the creditor shall be posted promptly to the obligor's account as specified in regulations of the Board. Such regulations shall prevent a finance charge from being imposed on any obligor if the creditor has received the obligor's payment in readily identifiable form in the amount, manner, location, and time indicated by the creditor to avoid the imposition thereof.
(
§1666d. Treatment of credit balances
Whenever a credit balance in excess of $1 is created in connection with a consumer credit transaction through (1) transmittal of funds to a creditor in excess of the total balance due on an account, (2) rebates of unearned finance charges or insurance premiums, or (3) amounts otherwise owed to or held for the benefit of an obligor, the creditor shall—
(A) credit the amount of the credit balance to the consumer's account;
(B) refund any part of the amount of the remaining credit balance, upon request of the consumer; and
(C) make a good faith effort to refund to the consumer by cash, check, or money order any part of the amount of the credit balance remaining in the account for more than six months, except that no further action is required in any case in which the consumer's current location is not known by the creditor and cannot be traced through the consumer's last known address or telephone number.
(
Amendments
1980—
Effective Date of 1980 Amendment
Amendment by
§1666e. Notification of credit card issuer by seller of return of goods, etc., by obligor; credit for account of obligor
With respect to any sales transaction where a credit card has been used to obtain credit, where the seller is a person other than the card issuer, and where the seller accepts or allows a return of the goods or forgiveness of a debit for services which were the subject of such sale, the seller shall promptly transmit to the credit card issuer, a credit statement with respect thereto and the credit card issuer shall credit the account of the obligor for the amount of the transaction.
(
Section Referred to in Other Sections
This section is referred to in
§1666f. Inducements to cardholders by sellers of cash discounts for payments by cash, check or similar means; finance charge for sales transactions involving cash discounts
(a) Cash discounts
With respect to credit card which may be used for extensions of credit in sales transactions in which the seller is a person other than the card issuer, the card issuer may not, by contract, or otherwise, prohibit any such seller from offering a discount to a cardholder to induce the cardholder to pay by cash, check, or similar means rather than use a credit card.
(b) Finance charge
With respect to any sales transaction, any discount from the regular price offered by the seller for the purpose of inducing payment by cash, checks, or other means not involving the use of an open-end credit plan or a credit card shall not constitute a finance charge as determined under
(
Amendments
1981—Subsec. (b).
1976—Subsec. (a).
Termination Date of 1976 Amendment
Section 3(c)(2) of
Nullification of Board Rules and Regulations Under Subsection (b) of This Section in Effect on July 26, 1981
Section 103 of
Section Referred to in Other Sections
This section is referred to in
§1666g. Tie-in services prohibited for issuance of credit card
Notwithstanding any agreement to the contrary, a card issuer may not require a seller, as a condition to participating in a credit card plan, to open an account with or procure any other service from the card issuer or its subsidiary or agent.
(
§1666h. Offset of cardholder's indebtedness by issuer of credit card with funds deposited with issuer by cardholder; remedies of creditors under State law not affected
(a) Offset against consumer's funds
A card issuer may not take any action to offset a cardholder's indebtedness arising in connection with a consumer credit transaction under the relevant credit card plan against funds of the cardholder held on deposit with the card issuer unless—
(1) such action was previously authorized in writing by the cardholder in accordance with a credit plan whereby the cardholder agrees periodically to pay debts incurred in his open end credit account by permitting the card issuer periodically to deduct all or a portion of such debt from the cardholder's deposit account, and
(2) such action with respect to any outstanding disputed amount not be taken by the card issuer upon request of the cardholder.
In the case of any credit card account in existence on the effective date of this section, the previous written authorization referred to in clause (1) shall not be required until the date (after such effective date) when such account is renewed, but in no case later than one year after such effective date. Such written authorization shall be deemed to exist if the card issuer has previously notified the cardholder that the use of his credit card account will subject any funds which the card issuer holds in deposit accounts of such cardholder to offset against any amounts due and payable on his credit card account which have not been paid in accordance with the terms of the agreement between the card issuer and the cardholder.
(b) Attachments and levies
This section does not alter or affect the right under State law of a card issuer to attach or otherwise levy upon funds of a cardholder held on deposit with the card issuer if that remedy is constitutionally available to creditors generally.
(
References in Text
For effective date of this section, referred to in subsec. (a), see Effective Date note set out under
§1666i. Assertion by cardholder against card issuer of claims and defenses arising out of credit card transaction; prerequisites; limitation on amount of claims or defenses
(a) Claims and defenses assertible
Subject to the limitation contained in subsection (b) of this section, a card issuer who has issued a credit card to a cardholder pursuant to an open end consumer credit plan shall be subject to all claims (other than tort claims) and defenses arising out of any transaction in which the credit card is used as a method of payment or extension of credit if (1) the obligor has made a good faith attempt to obtain satisfactory resolution of a disagreement or problem relative to the transaction from the person honoring the credit card; (2) the amount of the initial transaction exceeds $50; and (3) the place where the initial transaction occurred was in the same State as the mailing address previously provided by the cardholder or was within 100 miles from such address, except that the limitations set forth in clauses (2) and (3) with respect to an obligor's right to assert claims and defenses against a card issuer shall not be applicable to any transaction in which the person honoring the credit card (A) is the same person as the card issuer, (B) is controlled by the card issuer, (C) is under direct or indirect common control with the card issuer, (D) is a franchised dealer in the card issuer's products or services, or (E) has obtained the order for such transaction through a mail solicitation made by or participated in by the card issuer in which the cardholder is solicited to enter into such transaction by using the credit card issued by the card issuer.
(b) Amount of claims and defenses assertible
The amount of claims or defenses asserted by the cardholder may not exceed the amount of credit outstanding with respect to such transaction at the time the cardholder first notifies the card issuer or the person honoring the credit card of such claim or defense. For the purpose of determining the amount of credit outstanding in the preceding sentence, payments and credits to the cardholder's account are deemed to have been applied, in the order indicated, to the payment of: (1) late charges in the order of their entry to the account; (2) finance charges in order of their entry to the account; and (3) debits to the account other than those set forth above, in the order in which each debit entry to the account was made.
(
Section Referred to in Other Sections
This section is referred to in
§1666j. Applicability of State laws
(a) Consistency of provisions
This part does not annul, alter, or affect, or exempt any person subject to the provisions of this part from complying with, the laws of any State with respect to credit billing practices, except to the extent that those laws are inconsistent with any provision of this part, and then only to the extent of the inconsistency. The Board is authorized to determine whether such inconsistencies exist. The Board may not determine that any State law is inconsistent with any provision of this part if the Board determines that such law gives greater protection to the consumer.
(b) Exemptions by Board from credit billing requirements
The Board shall by regulation exempt from the requirements of this part any class of credit transactions within any State if it determines that under the law of that State that class of transactions is subject to requirements substantially similar to those imposed under this part or that such law gives greater protection to the consumer, and that there is adequate provision for enforcement.
(c) Finance charge or other charge for credit for sales transactions involving cash discounts
Notwithstanding any other provisions of this subchapter, any discount offered under
(
Amendments
1976—Subsec. (c).
Part E—Consumer Leases
Part Referred to in Other Sections
This part is referred to in
§1667. Definitions
For purposes of this part—
(1) The term "consumer lease" means a contract in the form of a lease or bailment for the use of personal property by a natural person for a period of time exceeding four months, and for a total contractual obligation not exceeding $25,000, primarily for personal, family, or household purposes, whether or not the lessee has the option to purchase or otherwise become the owner of the property at the expiration of the lease, except that such term shall not include any credit sale as defined in
(2) The term "lessee" means a natural person who leases or is offered a consumer lease.
(3) The term "lessor" means a person who is regularly engaged in leasing, offering to lease, or arranging to lease under a consumer lease.
(4) The term "personal property" means any property which is not real property under the laws of the State where situated at the time offered or otherwise made available for lease.
(5) The terms "security" and "security interest" mean any interest in property which secures payment or performance of an obligation.
(
Effective Date
Section 6 of
Section Referred to in Other Sections
This section is referred to in
§1667a. Consumer lease disclosures
Each lessor shall give a lessee prior to the consummation of the lease a dated written statement on which the lessor and lessee are identified setting out accurately and in a clear and conspicuous manner the following information with respect to that lease, as applicable:
(1) A brief description or identification of the leased property;
(2) The amount of any payment by the lessee required at the inception of the lease;
(3) The amount paid or payable by the lessee for official fees, registration, certificate of title, or license fees or taxes;
(4) The amount of other charges payable by the lessee not included in the periodic payments, a description of the charges and that the lessee shall be liable for the differential, if any, between the anticipated fair market value of the leased property and its appraised actual value at the termination of the lease, if the lessee has such liability;
(5) A statement of the amount or method of determining the amount of any liabilities the lease imposes upon the lessee at the end of the term and whether or not the lessee has the option to purchase the leased property and at what price and time;
(6) A statement identifying all express warranties and guarantees made by the manufacturer or lessor with respect to the leased property, and identifying the party responsible for maintaining or servicing the leased property together with a description of the responsibility;
(7) A brief description of insurance provided or paid for by the lessor or required of the lessee, including the types and amounts of the coverages and costs;
(8) A description of any security interest held or to be retained by the lessor in connection with the lease and a clear identification of the property to which the security interest relates;
(9) The number, amount, and due dates or periods of payments under the lease and the total amount of such periodic payments;
(10) Where the lease provides that the lessee shall be liable for the anticipated fair market value of the property on expiration of the lease, the fair market value of the property at the inception of the lease, the aggregate cost of the lease on expiration, and the differential between them; and
(11) A statement of the conditions under which the lessee or lessor may terminate the lease prior to the end of the term and the amount or method of determining any penalty or other charge for delinquency, default, late payments, or early termination.
The disclosures required under this section may be made in the lease contract to be signed by the lessee. The Board may provide by regulation that any portion of the information required to be disclosed under this section may be given in the form of estimates where the lessor is not in a position to know exact information.
(
Section Referred to in Other Sections
This section is referred to in
§1667b. Lessee's liability on expiration or termination of lease
(a) Estimated residual value of property as basis; presumptions; action by lessor for excess liability; mutually agreeable final adjustment
Where the lessee's liability on expiration of a consumer lease is based on the estimated residual value of the property such estimated residual value shall be a reasonable approximation of the anticipated actual fair market value of the property on lease expiration. There shall be a rebuttable presumption that the estimated residual value is unreasonable to the extent that the estimated residual value exceeds the actual residual value by more than three times the average payment allocable to a monthly period under the lease. In addition, where the lessee has such liability on expiration of a consumer lease there shall be a rebuttable presumption that the lessor's estimated residual value is not in good faith to the extent that the estimated residual value exceeds the actual residual value by more than three times the average payment allocable to a monthly period under the lease and such lessor shall not collect from the lessee the amount of such excess liability on expiration of a consumer lease unless the lessor brings a successful action with respect to such excess liability. In all actions, the lessor shall pay the lessee's reasonable attorney's fees. The presumptions stated in this section shall not apply to the extent the excess of estimated over actual residual value is due to physical damage to the property beyond reasonable wear and use, or to excessive use, and the lease may set standards for such wear and use if such standards are not unreasonable. Nothing in this subsection shall preclude the right of a willing lessee to make any mutually agreeable final adjustment with respect to such excess residual liability, provided such an agreement is reached after termination of the lease.
(b) Penalties and charges for delinquency, default, or early termination
Penalties or other charges for delinquency, default, or early termination may be specified in the lease but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the delinquency, default, or early termination, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy.
(c) Independent professional appraisal of residual value of property at termination of lease; finality
If a lease has a residual value provision at the termination of the lease, the lessee may obtain at his expense, a professional appraisal of the leased property by an independent third party agreed to by both parties. Such appraisal shall be final and binding on the parties.
(
Section Referred to in Other Sections
This section is referred to in
§1667c. Consumer lease advertising; liability of advertising media
(a) In general
If an advertisement for a consumer lease includes a statement of the amount of any payment or a statement that any or no initial payment is required, the advertisement shall clearly and conspicuously state, as applicable—
(1) the transaction advertised is a lease;
(2) the total amount of any initial payments required on or before consummation of the lease or delivery of the property, whichever is later;
(3) that a security deposit is required;
(4) the number, amount, and timing of scheduled payments; and
(5) with respect to a lease in which the liability of the consumer at the end of the lease term is based on the anticipated residual value of the property, that an extra charge may be imposed at the end of the lease term.
(b) Advertising medium not liable
No owner or employee of any entity that serves as a medium in which an advertisement appears or through which an advertisement is disseminated, shall be liable under this section.
(c) Radio advertisements
(1) In general
An advertisement by radio broadcast to aid, promote, or assist, directly or indirectly, any consumer lease shall be deemed to be in compliance with the requirements of subsection (a) of this section if such advertisement clearly and conspicuously—
(A) states the information required by paragraphs (1) and (2) of subsection (a) of this section;
(B) states the number, amounts, due dates or periods of scheduled payments, and the total of such payments under the lease;
(C) includes—
(i) a referral to—
(I) a toll-free telephone number established in accordance with paragraph (2) that may be used by consumers to obtain the information required under subsection (a) of this section; or
(II) a written advertisement that—
(aa) appears in a publication in general circulation in the community served by the radio station on which such advertisement is broadcast during the period beginning 3 days before any such broadcast and ending 10 days after such broadcast; and
(bb) includes the information required to be disclosed under subsection (a) of this section; and
(ii) the name and dates of any publication referred to in clause (i)(II); and
(D) includes any other information which the Board determines necessary to carry out this part.
(2) Establishment of toll-free number
(A) In general
In the case of a radio broadcast advertisement described in paragraph (1) that includes a referral to a toll-free telephone number, the lessor who offers the consumer lease shall—
(i) establish such a toll-free telephone number not later than the date on which the advertisement including the referral is broadcast;
(ii) maintain such telephone number for a period of not less than 10 days, beginning on the date of any such broadcast; and
(iii) provide the information required under subsection (a) of this section with respect to the lease to any person who calls such number.
(B) Form of information
The information required to be provided under subparagraph (A)(iii) shall be provided verbally or, if requested by the consumer, in written form.
(3) No effect on other law
Nothing in this subsection shall affect the requirements of Federal law as such requirements apply to advertisement by any medium other than radio broadcast.
(
Amendments
1996—Subsec. (a).
Subsec. (b).
Subsec. (c).
1994—Subsecs. (b), (c).
Study of Advertising Rules
Section 336(b) of
"(1) the current rules applicable to credit advertising;
"(2) how such rules could be modified to increase consumer benefit and decrease creditor costs; and
"(3) how such rules could be modified, if at all, for radio advertisements without diminishing consumer protection."
Section Referred to in Other Sections
This section is referred to in
§1667d. Civil liability of lessors
(a) Grounds for maintenance of action
Any lessor who fails to comply with any requirement imposed under
(b) Additional grounds for maintenance of action; "creditor" defined
Any lessor who fails to comply with any requirement imposed under
(c) Jurisdiction of courts; time limitation
Notwithstanding
(
Amendments
1980—Subsec. (b).
Effective Date of 1980 Amendment
Amendment by
§1667e. Applicability of State laws; exemptions by Board from leasing requirements
(a) This part does not annul, alter, or affect, or exempt any person subject to the provisions of this part from complying with, the laws of any State with respect to consumer leases, except to the extent that those laws are inconsistent with any provision of this part, and then only to the extent of the inconsistency. The Board is authorized to determine whether such inconsistencies exist. The Board may not determine that any State law is inconsistent with any provision of this part if the Board determines that such law gives greater protection and benefit to the consumer.
(b) The Board shall by regulation exempt from the requirements of this part any class of lease transactions within any State if it determines that under the law of that State that class of transactions is subject to requirements substantially similar to those imposed under this part or that such law gives greater protection and benefit to the consumer, and that there is adequate provision for enforcement.
(
§1667f. Regulations
(a) Regulations authorized
(1) In general
The Board shall prescribe regulations to update and clarify the requirements and definitions applicable to lease disclosures and contracts, and any other issues specifically related to consumer leasing, to the extent that the Board determines such action to be necessary—
(A) to carry out this part;
(B) to prevent any circumvention of this part; or
(C) to facilitate compliance with the requirements of the 1 part.
(2) Classifications, adjustments
Any regulations prescribed under paragraph (1) may contain classifications and differentiations, and may provide for adjustments and exceptions for any class of transactions, as the Board considers appropriate.
(b) Model disclosure
(1) Publication
The Board shall establish and publish model disclosure forms to facilitate compliance with the disclosure requirements of this part and to aid the consumer in understanding the transaction to which the subject disclosure form relates.
(2) Use of automated equipment
In establishing model forms under this subsection, the Board shall consider the use by lessors of data processing or similar automated equipment.
(3) Use optional
A lessor may utilize a model disclosure form established by the Board under this subsection for purposes of compliance with this part, at the discretion of the lessor.
(4) Effect of use
Any lessor who properly uses the material aspects of any model disclosure form established by the Board under this subsection shall be deemed to be in compliance with the disclosure requirements to which the form relates.
(
Effective Date
Section 2605(b)(2) of div. A of
"(A)
"(B)
"(C)
"(D)
"(E)
Congressional Findings and Declaration of Purposes
Section 2605(a) of div. A of
"(1)
"(A) competition among the various financial institutions and other firms engaged in the business of consumer leasing is greatest when there is informed use of leasing;
"(B) the informed use of leasing results from an awareness of the cost of leasing by consumers; and
"(C) there has been a continued trend toward leasing automobiles and other durable goods for consumer use as an alternative to installment credit sales and that leasing product advances have occurred such that lessors have been unable to provide consistent industry-wide disclosures to fully account for the competitive progress that has occurred.
"(2)
"(A) to assure a simple, meaningful disclosure of leasing terms so that the consumer will be able to compare more readily the various leasing terms available to the consumer and avoid the uninformed use of leasing, and to protect the consumer against inaccurate and unfair leasing practices;
"(B) to provide for adequate cost disclosures that reflect the marketplace without impairing competition and the development of new leasing products; and
"(C) to provide the Board with the regulatory authority to assure a simplified, meaningful definition and disclosure of the terms of certain leases of personal property for personal, family, or household purposes so as to—
"(i) enable the lessee to compare more readily the various lease terms available to the lessee;
"(ii) enable comparison of lease terms with credit terms, as appropriate; and
"(iii) assure meaningful and accurate disclosures of lease terms in advertisements."
1 So in original. Probably should be "this".
SUBCHAPTER II—RESTRICTIONS ON GARNISHMENT
§1671. Congressional findings and declaration of purpose
(a) Disadvantages of garnishment
The Congress finds:
(1) The unrestricted garnishment of compensation due for personal services encourages the making of predatory extensions of credit. Such extensions of credit divert money into excessive credit payments and thereby hinder the production and flow of goods in interstate commerce.
(2) The application of garnishment as a creditors' remedy frequently results in loss of employment by the debtor, and the resulting disruption of employment, production, and consumption constitutes a substantial burden on interstate commerce.
(3) The great disparities among the laws of the several States relating to garnishment have, in effect, destroyed the uniformity of the bankruptcy laws and frustrated the purposes thereof in many areas of the country.
(b) Necessity for regulation
On the basis of the findings stated in subsection (a) of this section, the Congress determines that the provisions of this subchapter are necessary and proper for the purpose of carrying into execution the powers of the Congress to regulate commerce and to establish uniform bankruptcy laws.
(
References in Text
The bankruptcy laws, referred to in subsec. (b), are generally classified to Title 11 (§101 et seq.), Bankruptcy.
Effective Date
Section 504(c) of
§1672. Definitions
For the purposes of this subchapter:
(a) The term "earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.
(b) The term "disposable earnings" means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.
(c) The term "garnishment" means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt.
(
§1673. Restriction on garnishment
(a) Maximum allowable garnishment
Except as provided in subsection (b) of this section and in
(1) 25 per centum of his disposable earnings for that week, or
(2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by
whichever is less. In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2).
(b) Exceptions
(1) The restrictions of subsection (a) of this section do not apply in the case of
(A) any order for the support of any person issued by a court of competent jurisdiction or in accordance with an administrative procedure, which is established by State law, which affords substantial due process, and which is subject to judicial review.
(B) any order of any court of the United States having jurisdiction over cases under
(C) any debt due for any State or Federal tax.
(2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed—
(A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual's disposable earnings for that week; and
(B) where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual's disposable earnings for that week;
except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek.
(c) Execution or enforcement of garnishment order or process prohibited
No court of the United States or any State, and no State (or officer or agency thereof), may make, execute, or enforce any order or process in violation of this section.
(
Amendments
1978—Subsec. (b)(1)(B).
1977—Subsec. (b).
Subsec. (c).
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1977 Amendment
Section 501(e)(5) of
Cross References
Enforcement of legal obligations to provide child support and make alimony payments, see
Section Referred to in Other Sections
This section is referred to in
§1674. Restriction on discharge from employment by reason of garnishment
(a) Termination of employment
No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.
(b) Penalties
Whoever willfully violates subsection (a) of this section shall be fined not more than $1,000, or imprisoned not more than one year, or both.
(
§1675. Exemption for State-regulated garnishments
The Secretary of Labor may by regulation exempt from the provisions of section 1673(a) and (b)(2) of this title garnishments issued under the laws of any State if he determines that the laws of that State provide restrictions on garnishment which are substantially similar to those provided in section 1673(a) and (b)(2) of this title.
(
Amendments
1977—
Section Referred to in Other Sections
This section is referred to in
§1676. Enforcement by Secretary of Labor
The Secretary of Labor, acting through the Wage and Hour Division of the Department of Labor, shall enforce the provisions of this subchapter.
(
§1677. Effect on State laws
This subchapter does not annul, alter, or affect, or exempt any person from complying with, the laws of any State
(1) prohibiting garnishments or providing for more limited garnishment than are allowed under this subchapter, or
(2) prohibiting the discharge of any employee by reason of the fact that his earnings have been subjected to garnishment for more than one indebtedness.
(
SUBCHAPTER II–A—CREDIT REPAIR ORGANIZATIONS
§1679. Findings and purposes
(a) Findings
The Congress makes the following findings:
(1) Consumers have a vital interest in establishing and maintaining their credit worthiness 1 and credit standing in order to obtain and use credit. As a result, consumers who have experienced credit problems may seek assistance from credit repair organizations which offer to improve the credit standing of such consumers.
(2) Certain advertising and business practices of some companies engaged in the business of credit repair services have worked a financial hardship upon consumers, particularly those of limited economic means and who are inexperienced in credit matters.
(b) Purposes
The purposes of this subchapter are—
(1) to ensure that prospective buyers of the services of credit repair organizations are provided with the information necessary to make an informed decision regarding the purchase of such services; and
(2) to protect the public from unfair or deceptive advertising and business practices by credit repair organizations.
(
Prior Provisions
A prior title IV of
Effective Date of Subchapter
Section 413 of title IV of
1 So in original. Probably should be "creditworthiness".
§1679a. Definitions
For purposes of this subchapter, the following definitions apply:
(1) Consumer
The term "consumer" means an individual.
(2) Consumer credit transaction
The term "consumer credit transaction" means any transaction in which credit is offered or extended to an individual for personal, family, or household purposes.
(3) Credit repair organization
The term "credit repair organization"—
(A) means any person who uses any instrumentality of interstate commerce or the mails to sell, provide, or perform (or represent that such person can or will sell, provide, or perform) any service, in return for the payment of money or other valuable consideration, for the express or implied purpose of—
(i) improving any consumer's credit record, credit history, or credit rating; or
(ii) providing advice or assistance to any consumer with regard to any activity or service described in clause (i); and
(B) does not include—
(i) any nonprofit organization which is exempt from taxation under
(ii) any creditor (as defined in
(iii) any depository institution (as that term is defined in
(4) Credit
The term "credit" has the meaning given to such term in
(
Prior Provisions
For a prior section 403 of
§1679b. Prohibited practices
(a) In general
No person may—
(1) make any statement, or counsel or advise any consumer to make any statement, which is untrue or misleading (or which, upon the exercise of reasonable care, should be known by the credit repair organization, officer, employee, agent, or other person to be untrue or misleading) with respect to any consumer's credit worthiness,1 credit standing, or credit capacity to—
(A) any consumer reporting agency (as defined in
(B) any person—
(i) who has extended credit to the consumer; or
(ii) to whom the consumer has applied or is applying for an extension of credit;
(2) make any statement, or counsel or advise any consumer to make any statement, the intended effect of which is to alter the consumer's identification to prevent the display of the consumer's credit record, history, or rating for the purpose of concealing adverse information that is accurate and not obsolete to—
(A) any consumer reporting agency;
(B) any person—
(i) who has extended credit to the consumer; or
(ii) to whom the consumer has applied or is applying for an extension of credit;
(3) make or use any untrue or misleading representation of the services of the credit repair organization; or
(4) engage, directly or indirectly, in any act, practice, or course of business that constitutes or results in the commission of, or an attempt to commit, a fraud or deception on any person in connection with the offer or sale of the services of the credit repair organization.
(b) Payment in advance
No credit repair organization may charge or receive any money or other valuable consideration for the performance of any service which the credit repair organization has agreed to perform for any consumer before such service is fully performed.
(
Prior Provisions
For a prior section 404 of
1 So in original. Probably should be "creditworthiness,".
§1679c. Disclosures
(a) Disclosure required
Any credit repair organization shall provide any consumer with the following written statement before any contract or agreement between the consumer and the credit repair organization is executed:
"Consumer Credit File Rights Under State and Federal Law
"You have a right to dispute inaccurate information in your credit report by contacting the credit bureau directly. However, neither you nor any 'credit repair' company or credit repair organization has the right to have accurate, current, and verifiable information removed from your credit report. The credit bureau must remove accurate, negative information from your report only if it is over 7 years old. Bankruptcy information can be reported for 10 years.
"You have a right to obtain a copy of your credit report from a credit bureau. You may be charged a reasonable fee. There is no fee, however, if you have been turned down for credit, employment, insurance, or a rental dwelling because of information in your credit report within the preceding 60 days. The credit bureau must provide someone to help you interpret the information in your credit file. You are entitled to receive a free copy of your credit report if you are unemployed and intend to apply for employment in the next 60 days, if you are a recipient of public welfare assistance, or if you have reason to believe that there is inaccurate information in your credit report due to fraud.
"You have a right to sue a credit repair organization that violates the Credit Repair Organization Act. This law prohibits deceptive practices by credit repair organizations.
"You have the right to cancel your contract with any credit repair organization for any reason within 3 business days from the date you signed it.
"Credit bureaus are required to follow reasonable procedures to ensure that the information they report is accurate. However, mistakes may occur.
"You may, on your own, notify a credit bureau in writing that you dispute the accuracy of information in your credit file. The credit bureau must then reinvestigate and modify or remove inaccurate or incomplete information. The credit bureau may not charge any fee for this service. Any pertinent information and copies of all documents you have concerning an error should be given to the credit bureau.
"If the credit bureau's reinvestigation does not resolve the dispute to your satisfaction, you may send a brief statement to the credit bureau, to be kept in your file, explaining why you think the record is inaccurate. The credit bureau must include a summary of your statement about disputed information with any report it issues about you.
"The Federal Trade Commission regulates credit bureaus and credit repair organizations. For more information contact:
"The Public Reference Branch
"Federal Trade Commission
"Washington, D.C. 20580".
(b) Separate statement requirement
The written statement required under this section shall be provided as a document which is separate from any written contract or other agreement between the credit repair organization and the consumer or any other written material provided to the consumer.
(c) Retention of compliance records
(1) In general
The credit repair organization shall maintain a copy of the statement signed by the consumer acknowledging receipt of the statement.
(2) Maintenance for 2 years
The copy of any consumer's statement shall be maintained in the organization's files for 2 years after the date on which the statement is signed by the consumer.
(
References in Text
The Credit Repair Organization Act, referred to in subsec. (a), probably means the Credit Repair Organizations Act,
Prior Provisions
For a prior section 405 of
Section Referred to in Other Sections
This section is referred to in
§1679d. Credit repair organizations contracts
(a) Written contracts required
No services may be provided by any credit repair organization for any consumer—
(1) unless a written and dated contract (for the purchase of such services) which meets the requirements of subsection (b) of this section has been signed by the consumer; or
(2) before the end of the 3-business-day period beginning on the date the contract is signed.
(b) Terms and conditions of contract
No contract referred to in subsection (a) of this section meets the requirements of this subsection unless such contract includes (in writing)—
(1) the terms and conditions of payment, including the total amount of all payments to be made by the consumer to the credit repair organization or to any other person;
(2) a full and detailed description of the services to be performed by the credit repair organization for the consumer, including—
(A) all guarantees of performance; and
(B) an estimate of—
(i) the date by which the performance of the services (to be performed by the credit repair organization or any other person) will be complete; or
(ii) the length of the period necessary to perform such services;
(3) the credit repair organization's name and principal business address; and
(4) a conspicuous statement in bold face type, in immediate proximity to the space reserved for the consumer's signature on the contract, which reads as follows: "You may cancel this contract without penalty or obligation at any time before midnight of the 3rd business day after the date on which you signed the contract. See the attached notice of cancellation form for an explanation of this right.".
(
Prior Provisions
For a prior section 406 of
§1679e. Right to cancel contract
(a) In general
Any consumer may cancel any contract with any credit repair organization without penalty or obligation by notifying the credit repair organization of the consumer's intention to do so at any time before midnight of the 3rd business day which begins after the date on which the contract or agreement between the consumer and the credit repair organization is executed or would, but for this subsection, become enforceable against the parties.
(b) Cancellation form and other information
Each contract shall be accompanied by a form, in duplicate, which has the heading "Notice of Cancellation" and contains in bold face type the following statement:
"You may cancel this contract, without any penalty or obligation, at any time before midnight of the 3rd day which begins after the date the contract is signed by you.
"To cancel this contract, mail or deliver a signed, dated copy of this cancellation notice, or any other written notice to [ name of credit repair organization ] at [ address of credit repair organization ] before midnight on [ date ]
"I hereby cancel this transaction,
[ date ]
[ purchaser's signature ].".
(c) Consumer copy of contract required
Any consumer who enters into any contract with any credit repair organization shall be given, by the organization—
(1) a copy of the completed contract and the disclosure statement required under
(2) a copy of any other document the credit repair organization requires the consumer to sign,
at the time the contract or the other document is signed.
(
Prior Provisions
For a prior section 407 of
§1679f. Noncompliance with this subchapter
(a) Consumer waivers invalid
Any waiver by any consumer of any protection provided by or any right of the consumer under this subchapter—
(1) shall be treated as void; and
(2) may not be enforced by any Federal or State court or any other person.
(b) Attempt to obtain waiver
Any attempt by any person to obtain a waiver from any consumer of any protection provided by or any right of the consumer under this subchapter shall be treated as a violation of this subchapter.
(c) Contracts not in compliance
Any contract for services which does not comply with the applicable provisions of this subchapter—
(1) shall be treated as void; and
(2) may not be enforced by any Federal or State court or any other person.
(
§1679g. Civil liability
(a) Liability established
Any person who fails to comply with any provision of this subchapter with respect to any other person shall be liable to such person in an amount equal to the sum of the amounts determined under each of the following paragraphs:
(1) Actual damages
The greater of—
(A) the amount of any actual damage sustained by such person as a result of such failure; or
(B) any amount paid by the person to the credit repair organization.
(2) Punitive damages
(A) Individual actions
In the case of any action by an individual, such additional amount as the court may allow.
(B) Class actions
In the case of a class action, the sum of—
(i) the aggregate of the amount which the court may allow for each named plaintiff; and
(ii) the aggregate of the amount which the court may allow for each other class member, without regard to any minimum individual recovery.
(3) Attorneys' fees
In the case of any successful action to enforce any liability under paragraph (1) or (2), the costs of the action, together with reasonable attorneys' fees.
(b) Factors to be considered in awarding punitive damages
In determining the amount of any liability of any credit repair organization under subsection (a)(2) of this section, the court shall consider, among other relevant factors—
(1) the frequency and persistence of noncompliance by the credit repair organization;
(2) the nature of the noncompliance;
(3) the extent to which such noncompliance was intentional; and
(4) in the case of any class action, the number of consumers adversely affected.
(
Section Referred to in Other Sections
This section is referred to in
§1679h. Administrative enforcement
(a) In general
Compliance with the requirements imposed under this subchapter with respect to credit repair organizations shall be enforced under the Federal Trade Commission Act [
(b) Violations of this subchapter treated as violations of Federal Trade Commission Act
(1) In general
For the purpose of the exercise by the Federal Trade Commission of the Commission's functions and powers under the Federal Trade Commission Act [
(2) Enforcement authority under other law
All functions and powers of the Federal Trade Commission under the Federal Trade Commission Act shall be available to the Commission to enforce compliance with this subchapter by any person subject to enforcement by the Federal Trade Commission pursuant to this subsection, including the power to enforce the provisions of this subchapter in the same manner as if the violation had been a violation of any Federal Trade Commission trade regulation rule, without regard to whether the credit repair organization—
(A) is engaged in commerce; or
(B) meets any other jurisdictional tests in the Federal Trade Commission Act.
(c) State action for violations
(1) Authority of States
In addition to such other remedies as are provided under State law, whenever the chief law enforcement officer of a State, or an official or agency designated by a State, has reason to believe that any person has violated or is violating this subchapter, the State—
(A) may bring an action to enjoin such violation;
(B) may bring an action on behalf of its residents to recover damages for which the person is liable to such residents under
(C) in the case of any successful action under subparagraph (A) or (B), shall be awarded the costs of the action and reasonable attorney fees as determined by the court.
(2) Rights of Commission
(A) Notice to Commission
The State shall serve prior written notice of any civil action under paragraph (1) upon the Federal Trade Commission and provide the Commission with a copy of its complaint, except in any case where such prior notice is not feasible, in which case the State shall serve such notice immediately upon instituting such action.
(B) Intervention
The Commission shall have the right—
(i) to intervene in any action referred to in subparagraph (A);
(ii) upon so intervening, to be heard on all matters arising in the action; and
(iii) to file petitions for appeal.
(3) Investigatory powers
For purposes of bringing any action under this subsection, nothing in this subsection shall prevent the chief law enforcement officer, or an official or agency designated by a State, from exercising the powers conferred on the chief law enforcement officer or such official by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary and other evidence.
(4) Limitation
Whenever the Federal Trade Commission has instituted a civil action for violation of this subchapter, no State may, during the pendency of such action, bring an action under this section against any defendant named in the complaint of the Commission for any violation of this subchapter that is alleged in that complaint.
(
References in Text
The Federal Trade Commission Act, referred to in subsecs. (a) and (b), is act Sept. 26, 1914, ch. 311,
§1679i. Statute of limitations
Any action to enforce any liability under this subchapter may be brought before the later of—
(1) the end of the 5-year period beginning on the date of the occurrence of the violation involved; or
(2) in any case in which any credit repair organization has materially and willfully misrepresented any information which—
(A) the credit repair organization is required, by any provision of this subchapter, to disclose to any consumer; and
(B) is material to the establishment of the credit repair organization's liability to the consumer under this subchapter,
the end of the 5-year period beginning on the date of the discovery by the consumer of the misrepresentation.
(
§1679j. Relation to State law
This subchapter shall not annul, alter, affect, or exempt any person subject to the provisions of this subchapter from complying with any law of any State except to the extent that such law is inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency.
(
SUBCHAPTER III—CREDIT REPORTING AGENCIES
Subchapter Referred to in Other Sections
This subchapter is referred to in
§1681. Congressional findings and statement of purpose
(a) Accuracy and fairness of credit reporting
The Congress makes the following findings:
(1) The banking system is dependent upon fair and accurate credit reporting. Inaccurate credit reports directly impair the efficiency of the banking system, and unfair credit reporting methods undermine the public confidence which is essential to the continued functioning of the banking system.
(2) An elaborate mechanism has been developed for investigating and evaluating the credit worthiness,1 credit standing, credit capacity, character, and general reputation of consumers.
(3) Consumer reporting agencies have assumed a vital role in assembling and evaluating consumer credit and other information on consumers.
(4) There is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy.
(b) Reasonable procedures
It is the purpose of this subchapter to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information in accordance with the requirements of this subchapter.
(
Effective Date
Section 504(d) of
Short Title
This subchapter known as the "Fair Credit Reporting Act", see Short Title note set out under
1 So in original. Probably should be "creditworthiness,".
§1681a. Definitions; rules of construction
(a) Definitions and rules of construction set forth in this section are applicable for the purposes of this subchapter.
(b) The term "person" means any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.
(c) The term "consumer" means an individual.
(d)
(1)
(A) credit or insurance to be used primarily for personal, family, or household purposes;
(B) employment purposes; or
(C) any other purpose authorized under
(2)
(A) any—
(i) report containing information solely as to transactions or experiences between the consumer and the person making the report;
(ii) communication of that information among persons related by common ownership or affiliated by corporate control; or
(iii) communication of other information among persons related by common ownership or affiliated by corporate control, if it is clearly and conspicuously disclosed to the consumer that the information may be communicated among such persons and the consumer is given the opportunity, before the time that the information is initially communicated, to direct that such information not be communicated among such persons;
(B) any authorization or approval of a specific extension of credit directly or indirectly by the issuer of a credit card or similar device;
(C) any report in which a person who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer conveys his or her decision with respect to such request, if the third party advises the consumer of the name and address of the person to whom the request was made, and such person makes the disclosures to the consumer required under
(D) a communication described in subsection (o) of this section.
(e) The term "investigative consumer report" means a consumer report or portion thereof in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom he is acquainted or who may have knowledge concerning any such items of information. However, such information shall not include specific factual information on a consumer's credit record obtained directly from a creditor of the consumer or from a consumer reporting agency when such information was obtained directly from a creditor of the consumer or from the consumer.
(f) The term "consumer reporting agency" means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.
(g) The term "file", when used in connection with information on any consumer, means all of the information on that consumer recorded and retained by a consumer reporting agency regardless of how the information is stored.
(h) The term "employment purposes" when used in connection with a consumer report means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.
(i) The term "medical information" means information or records obtained, with the consent of the individual to whom it relates, from licensed physicians or medical practitioners, hospitals, clinics, or other medical or medically related facilities.
(j)
(1)
(2)
(k)
(1)
(A) has the same meaning as in
(B) means—
(i) a denial or cancellation of, an increase in any charge for, or a reduction or other adverse or unfavorable change in the terms of coverage or amount of, any insurance, existing or applied for, in connection with the underwriting of insurance;
(ii) a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee;
(iii) a denial or cancellation of, an increase in any charge for, or any other adverse or unfavorable change in the terms of, any license or benefit described in
(iv) an action taken or determination that is—
(I) made in connection with an application that was made by, or a transaction that was initiated by, any consumer, or in connection with a review of an account under
(II) adverse to the interests of the consumer.
(2)
(l)
(1) The consumer being determined, based on information in the consumer's application for the credit or insurance, to meet specific criteria bearing on credit worthiness 2 or insurability, as applicable, that are established—
(A) before selection of the consumer for the offer; and
(B) for the purpose of determining whether to extend credit or insurance pursuant to the offer.
(2) Verification—
(A) that the consumer continues to meet the specific criteria used to select the consumer for the offer, by using information in a consumer report on the consumer, information in the consumer's application for the credit or insurance, or other information bearing on the credit worthiness 2 or insurability of the consumer; or
(B) of the information in the consumer's application for the credit or insurance, to determine that the consumer meets the specific criteria bearing on credit worthiness 2 or insurability.
(3) The consumer furnishing any collateral that is a requirement for the extension of the credit or insurance that was—
(A) established before selection of the consumer for the offer of credit or insurance; and
(B) disclosed to the consumer in the offer of credit or insurance.
(m)
(1) reviewing the account or insurance policy; or
(2) collecting the account.
(n)
(o)
(1) that, but for subsection (d)(2)(D) of this section, would be an investigative consumer report;
(2) that is made to a prospective employer for the purpose of—
(A) procuring an employee for the employer; or
(B) procuring an opportunity for a natural person to work for the employer;
(3) that is made by a person who regularly performs such procurement;
(4) that is not used by any person for any purpose other than a purpose described in subparagraph (A) or (B) of paragraph (2); and
(5) with respect to which—
(A) the consumer who is the subject of the communication—
(i) consents orally or in writing to the nature and scope of the communication, before the collection of any information for the purpose of making the communication;
(ii) consents orally or in writing to the making of the communication to a prospective employer, before the making of the communication; and
(iii) in the case of consent under clause (i) or (ii) given orally, is provided written confirmation of that consent by the person making the communication, not later than 3 business days after the receipt of the consent by that person;
(B) the person who makes the communication does not, for the purpose of making the communication, make any inquiry that if made by a prospective employer of the consumer who is the subject of the communication would violate any applicable Federal or State equal employment opportunity law or regulation; and
(C) the person who makes the communication—
(i) discloses in writing to the consumer who is the subject of the communication, not later than 5 business days after receiving any request from the consumer for such disclosure, the nature and substance of all information in the consumer's file at the time of the request, except that the sources of any information that is acquired solely for use in making the communication and is actually used for no other purpose, need not be disclosed other than under appropriate discovery procedures in any court of competent jurisdiction in which an action is brought; and
(ii) notifies the consumer who is the subject of the communication, in writing, of the consumer's right to request the information described in clause (i).
(p)
(1) Public record information.
(2) Credit account information from persons who furnish that information regularly and in the ordinary course of business.
(
Amendments
1998—Subsec. (d)(2)(A)(iii).
Subsec. (o)(1).
Subsec. (o)(4).
1996—Subsec. (d).
Subsec. (k).
Subsec. (l).
Subsec. (m).
Subsec. (n).
Subsec. (o).
Subsec. (p).
1992—Subsec. (j).
Effective Date of 1998 Amendment
Effective Date of 1996 Amendment
Section 2420 of div. A of
"(a)
"(b)
Effective Date of 1992 Amendment
Section 2(d) of
Construction of 1996 Amendment
Section 2421 of div. A of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "creditworthiness,".
2 So in original. Probably should be "creditworthiness".
3 So in original. Probably should be "creditworthiness,".
§1681b. Permissible purposes of consumer reports
(a) In general
Subject to subsection (c) of this section, any consumer reporting agency may furnish a consumer report under the following circumstances and no other:
(1) In response to the order of a court having jurisdiction to issue such an order, or a subpoena issued in connection with proceedings before a Federal grand jury.
(2) In accordance with the written instructions of the consumer to whom it relates.
(3) To a person which it has reason to believe—
(A) intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; or
(B) intends to use the information for employment purposes; or
(C) intends to use the information in connection with the underwriting of insurance involving the consumer; or
(D) intends to use the information in connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status; or
(E) intends to use the information, as a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation; or
(F) otherwise has a legitimate business need for the information—
(i) in connection with a business transaction that is initiated by the consumer; or
(ii) to review an account to determine whether the consumer continues to meet the terms of the account.
(4) In response to a request by the head of a State or local child support enforcement agency (or a State or local government official authorized by the head of such an agency), if the person making the request certifies to the consumer reporting agency that—
(A) the consumer report is needed for the purpose of establishing an individual's capacity to make child support payments or determining the appropriate level of such payments;
(B) the paternity of the consumer for the child to which the obligation relates has been established or acknowledged by the consumer in accordance with State laws under which the obligation arises (if required by those laws);
(C) the person has provided at least 10 days' prior notice to the consumer whose report is requested, by certified or registered mail to the last known address of the consumer, that the report will be requested; and
(D) the consumer report will be kept confidential, will be used solely for a purpose described in subparagraph (A), and will not be used in connection with any other civil, administrative, or criminal proceeding, or for any other purpose.
(5) To an agency administering a State plan under
(b) Conditions for furnishing and using consumer reports for employment purposes
(1) Certification from user
A consumer reporting agency may furnish a consumer report for employment purposes only if—
(A) the person who obtains such report from the agency certifies to the agency that—
(i) the person has complied with paragraph (2) with respect to the consumer report, and the person will comply with paragraph (3) with respect to the consumer report if paragraph (3) becomes applicable; and
(ii) information from the consumer report will not be used in violation of any applicable Federal or State equal employment opportunity law or regulation; and
(B) the consumer reporting agency provides with the report, or has previously provided, a summary of the consumer's rights under this subchapter, as prescribed by the Federal Trade Commission under
(2) Disclosure to consumer
(A) In general
Except as provided in subparagraph (B), a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless—
(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
(ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.
(B) Application by mail, telephone, computer, or other similar means
If a consumer described in subparagraph (C) applies for employment by mail, telephone, computer, or other similar means, at any time before a consumer report is procured or caused to be procured in connection with that application—
(i) the person who procures the consumer report on the consumer for employment purposes shall provide to the consumer, by oral, written, or electronic means, notice that a consumer report may be obtained for employment purposes, and a summary of the consumer's rights under
(ii) the consumer shall have consented, orally, in writing, or electronically to the procurement of the report by that person.
(C) Scope
Subparagraph (B) shall apply to a person procuring a consumer report on a consumer in connection with the consumer's application for employment only if—
(i) the consumer is applying for a position over which the Secretary of Transportation has the power to establish qualifications and maximum hours of service pursuant to the provisions of
(ii) as of the time at which the person procures the report or causes the report to be procured the only interaction between the consumer and the person in connection with that employment application has been by mail, telephone, computer, or other similar means.
(3) Conditions on use for adverse actions
(A) In general
Except as provided in subparagraph (B), in using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall provide to the consumer to whom the report relates—
(i) a copy of the report; and
(ii) a description in writing of the rights of the consumer under this subchapter, as prescribed by the Federal Trade Commission under
(B) Application by mail, telephone, computer, or other similar means
(i) If a consumer described in subparagraph (C) applies for employment by mail, telephone, computer, or other similar means, and if a person who has procured a consumer report on the consumer for employment purposes takes adverse action on the employment application based in whole or in part on the report, then the person must provide to the consumer to whom the report relates, in lieu of the notices required under subparagraph (A) of this section and under
(I) that adverse action has been taken based in whole or in part on a consumer report received from a consumer reporting agency;
(II) of the name, address and telephone number of the consumer reporting agency that furnished the consumer report (including a toll-free telephone number established by the agency if the agency compiles and maintains files on consumers on a nationwide basis);
(III) that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide to the consumer the specific reasons why the adverse action was taken; and
(IV) that the consumer may, upon providing proper identification, request a free copy of a report and may dispute with the consumer reporting agency the accuracy or completeness of any information in a report.
(ii) If, under clause (B)(i)(IV), the consumer requests a copy of a consumer report from the person who procured the report, then, within 3 business days of receiving the consumer's request, together with proper identification, the person must send or provide to the consumer a copy of a report and a copy of the consumer's rights as prescribed by the Federal Trade Commission under
(C) Scope
Subparagraph (B) shall apply to a person procuring a consumer report on a consumer in connection with the consumer's application for employment only if—
(i) the consumer is applying for a position over which the Secretary of Transportation has the power to establish qualifications and maximum hours of service pursuant to the provisions of
(ii) as of the time at which the person procures the report or causes the report to be procured the only interaction between the consumer and the person in connection with that employment application has been by mail, telephone, computer, or other similar means.
(4) Exception for national security investigations
(A) In general
In the case of an agency or department of the United States Government which seeks to obtain and use a consumer report for employment purposes, paragraph (3) shall not apply to any adverse action by such agency or department which is based in part on such consumer report, if the head of such agency or department makes a written finding that—
(i) the consumer report is relevant to a national security investigation of such agency or department;
(ii) the investigation is within the jurisdiction of such agency or department;
(iii) there is reason to believe that compliance with paragraph (3) will—
(I) endanger the life or physical safety of any person;
(II) result in flight from prosecution;
(III) result in the destruction of, or tampering with, evidence relevant to the investigation;
(IV) result in the intimidation of a potential witness relevant to the investigation;
(V) result in the compromise of classified information; or
(VI) otherwise seriously jeopardize or unduly delay the investigation or another official proceeding.
(B) Notification of consumer upon conclusion of investigation
Upon the conclusion of a national security investigation described in subparagraph (A), or upon the determination that the exception under subparagraph (A) is no longer required for the reasons set forth in such subparagraph, the official exercising the authority in such subparagraph shall provide to the consumer who is the subject of the consumer report with regard to which such finding was made—
(i) a copy of such consumer report with any classified information redacted as necessary;
(ii) notice of any adverse action which is based, in part, on the consumer report; and
(iii) the identification with reasonable specificity of the nature of the investigation for which the consumer report was sought.
(C) Delegation by head of agency or department
For purposes of subparagraphs (A) and (B), the head of any agency or department of the United States Government may delegate his or her authorities under this paragraph to an official of such agency or department who has personnel security responsibilities and is a member of the Senior Executive Service or equivalent civilian or military rank.
(D) Report to the Congress
Not later than January 31 of each year, the head of each agency and department of the United States Government that exercised authority under this paragraph during the preceding year shall submit a report to the Congress on the number of times the department or agency exercised such authority during the year.
(E) Definitions
For purposes of this paragraph, the following definitions shall apply:
(i) Classified information
The term "classified information" means information that is protected from unauthorized disclosure under Executive Order No. 12958 or successor orders.
(ii) National security investigation
The term "national security investigation" means any official inquiry by an agency or department of the United States Government to determine the eligibility of a consumer to receive access or continued access to classified information or to determine whether classified information has been lost or compromised.
(c) Furnishing reports in connection with credit or insurance transactions that are not initiated by consumer
(1) In general
A consumer reporting agency may furnish a consumer report relating to any consumer pursuant to subparagraph (A) or (C) of subsection (a)(3) of this section in connection with any credit or insurance transaction that is not initiated by the consumer only if—
(A) the consumer authorizes the agency to provide such report to such person; or
(B)(i) the transaction consists of a firm offer of credit or insurance;
(ii) the consumer reporting agency has complied with subsection (e) of this section; and
(iii) there is not in effect an election by the consumer, made in accordance with subsection (e) of this section, to have the consumer's name and address excluded from lists of names provided by the agency pursuant to this paragraph.
(2) Limits on information received under paragraph (1)(B)
A person may receive pursuant to paragraph (1)(B) only—
(A) the name and address of a consumer;
(B) an identifier that is not unique to the consumer and that is used by the person solely for the purpose of verifying the identity of the consumer; and
(C) other information pertaining to a consumer that does not identify the relationship or experience of the consumer with respect to a particular creditor or other entity.
(3) Information regarding inquiries
Except as provided in
(d) Reserved
(e) Election of consumer to be excluded from lists
(1) In general
A consumer may elect to have the consumer's name and address excluded from any list provided by a consumer reporting agency under subsection (c)(1)(B) of this section in connection with a credit or insurance transaction that is not initiated by the consumer, by notifying the agency in accordance with paragraph (2) that the consumer does not consent to any use of a consumer report relating to the consumer in connection with any credit or insurance transaction that is not initiated by the consumer.
(2) Manner of notification
A consumer shall notify a consumer reporting agency under paragraph (1)—
(A) through the notification system maintained by the agency under paragraph (5); or
(B) by submitting to the agency a signed notice of election form issued by the agency for purposes of this subparagraph.
(3) Response of agency after notification through system
Upon receipt of notification of the election of a consumer under paragraph (1) through the notification system maintained by the agency under paragraph (5), a consumer reporting agency shall—
(A) inform the consumer that the election is effective only for the 2-year period following the election if the consumer does not submit to the agency a signed notice of election form issued by the agency for purposes of paragraph (2)(B); and
(B) provide to the consumer a notice of election form, if requested by the consumer, not later than 5 business days after receipt of the notification of the election through the system established under paragraph (5), in the case of a request made at the time the consumer provides notification through the system.
(4) Effectiveness of election
An election of a consumer under paragraph (1)—
(A) shall be effective with respect to a consumer reporting agency beginning 5 business days after the date on which the consumer notifies the agency in accordance with paragraph (2);
(B) shall be effective with respect to a consumer reporting agency—
(i) subject to subparagraph (C), during the 2-year period beginning 5 business days after the date on which the consumer notifies the agency of the election, in the case of an election for which a consumer notifies the agency only in accordance with paragraph (2)(A); or
(ii) until the consumer notifies the agency under subparagraph (C), in the case of an election for which a consumer notifies the agency in accordance with paragraph (2)(B);
(C) shall not be effective after the date on which the consumer notifies the agency, through the notification system established by the agency under paragraph (5), that the election is no longer effective; and
(D) shall be effective with respect to each affiliate of the agency.
(5) Notification system
(A) In general
Each consumer reporting agency that, under subsection (c)(1)(B) of this section, furnishes a consumer report in connection with a credit or insurance transaction that is not initiated by a consumer, shall—
(i) establish and maintain a notification system, including a toll-free telephone number, which permits any consumer whose consumer report is maintained by the agency to notify the agency, with appropriate identification, of the consumer's election to have the consumer's name and address excluded from any such list of names and addresses provided by the agency for such a transaction; and
(ii) publish by not later than 365 days after September 30, 1996, and not less than annually thereafter, in a publication of general circulation in the area served by the agency—
(I) a notification that information in consumer files maintained by the agency may be used in connection with such transactions; and
(II) the address and toll-free telephone number for consumers to use to notify the agency of the consumer's election under clause (i).
(B) Establishment and maintenance as compliance
Establishment and maintenance of a notification system (including a toll-free telephone number) and publication by a consumer reporting agency on the agency's own behalf and on behalf of any of its affiliates in accordance with this paragraph is deemed to be compliance with this paragraph by each of those affiliates.
(6) Notification system by agencies that operate nationwide
Each consumer reporting agency that compiles and maintains files on consumers on a nationwide basis shall establish and maintain a notification system for purposes of paragraph (5) jointly with other such consumer reporting agencies.
(f) Certain use or obtaining of information prohibited
A person shall not use or obtain a consumer report for any purpose unless—
(1) the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under this section; and
(2) the purpose is certified in accordance with
(g) Furnishing reports containing medical information
A consumer reporting agency shall not furnish for employment purposes, or in connection with a credit or insurance transaction, a consumer report that contains medical information about a consumer, unless the consumer consents to the furnishing of the report.
(
References in Text
Executive Order No. 12958, referred to in subsec. (b)(4)(E)(i), is Ex. Ord. No. 12958, Apr. 17, 1995, 60 F.R. 19825, as amended, which is set out under
Amendments
1998—Subsec. (b)(1)(B).
Subsec. (b)(2).
"(A) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
"(B) the consumer has authorized in writing the procurement of the report by that person."
Subsec. (b)(3).
"(A) a copy of the report; and
"(B) a description in writing of the rights of the consumer under this subchapter, as prescribed by the Federal Trade Commission under
Subsec. (g).
1997—Subsec. (b)(4).
1996—
Subsec. (b).
Subsecs. (c) to (e).
Subsec. (f).
Subsec. (g).
Pars. (4), (5).
1989—Par. (1).
Effective Date of 1998 Amendment
Amendment by
Effective Date of 1997 Amendment
Effective Date of 1996 Amendments
Amendment by
For effective date of amendment by
FTC Guidelines Regarding Prescreening for Insurance Transactions
Section 2404(c) of div. A of
Section Referred to in Other Sections
This section is referred to in
§1681c. Requirements relating to information contained in consumer reports
(a) Information excluded from consumer reports
Except as authorized under subsection (b) of this section, no consumer reporting agency may make any consumer report containing any of the following items of information:
(1) cases 1 under title 11 or under the Bankruptcy Act that, from the date of entry of the order for relief or the date of adjudication, as the case may be, antedate the report by more than 10 years.
(2) Civil suits, civil judgments, and records of arrest that, from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period.
(3) Paid tax liens which, from date of payment, antedate the report by more than seven years.
(4) Accounts placed for collection or charged to profit and loss which antedate the report by more than seven years.
(5) Any other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years.
(b) Exempted cases
The provisions of subsection (a) of this section are not applicable in the case of any consumer credit report to be used in connection with—
(1) a credit transaction involving, or which may reasonably be expected to involve, a principal amount of $150,000 or more;
(2) the underwriting of life insurance involving, or which may reasonably be expected to involve, a face amount of $150,000 or more; or
(3) the employment of any individual at an annual salary which equals, or which may reasonably be expected to equal $75,000, or more.
(c) Running of reporting period
(1) In general
The 7-year period referred to in paragraphs (4) and (6) of subsection (a) of this section shall begin, with respect to any delinquent account that is placed for collection (internally or by referral to a third party, whichever is earlier), charged to profit and loss, or subjected to any similar action, upon the expiration of the 180-day period beginning on the date of the commencement of the delinquency which immediately preceded the collection activity, charge to profit and loss, or similar action.
(2) Effective date
Paragraph (1) shall apply only to items of information added to the file of a consumer on or after the date that is 455 days after September 30, 1996.
(d) Information required to be disclosed
Any consumer reporting agency that furnishes a consumer report that contains information regarding any case involving the consumer that arises under title 11 shall include in the report an identification of the chapter of such title 11 under which such case arises if provided by the source of the information. If any case arising or filed under title 11 is withdrawn by the consumer before a final judgment, the consumer reporting agency shall include in the report that such case or filing was withdrawn upon receipt of documentation certifying such withdrawal.
(e) Indication of closure of account by consumer
If a consumer reporting agency is notified pursuant to
(f) Indication of dispute by consumer
If a consumer reporting agency is notified pursuant to
(
References in Text
The Bankruptcy Act, referred to in subsec. (a)(1), was act July 1, 1898, ch. 541,
Amendments
1998—Subsec. (a)(2).
Subsec. (a)(5), (6).
1996—
Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsecs. (e), (f).
1978—Subsec. (a)(1).
Effective Date of 1998 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1978 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be capitalized.
2 So in original. Probably should be "which".
§1681d. Disclosure of investigative consumer reports
(a) Disclosure of fact of preparation
A person may not procure or cause to be prepared an investigative consumer report on any consumer unless—
(1) it is clearly and accurately disclosed to the consumer that an investigative consumer report including information as to his character, general reputation, personal characteristics, and mode of living, whichever are applicable, may be made, and such disclosure (A) is made in a writing mailed, or otherwise delivered, to the consumer, not later than three days after the date on which the report was first requested, and (B) includes a statement informing the consumer of his right to request the additional disclosures provided for under subsection (b) of this section and the written summary of the rights of the consumer prepared pursuant to
(2) the person certifies or has certified to the consumer reporting agency that—
(A) the person has made the disclosures to the consumer required by paragraph (1); and
(B) the person will comply with subsection (b) of this section.
(b) Disclosure on request of nature and scope of investigation
Any person who procures or causes to be prepared an investigative consumer report on any consumer shall, upon written request made by the consumer within a reasonable period of time after the receipt by him of the disclosure required by subsection (a)(1) of this section, make a complete and accurate disclosure of the nature and scope of the investigation requested. This disclosure shall be made in a writing mailed, or otherwise delivered, to the consumer not later than five days after the date on which the request for such disclosure was received from the consumer or such report was first requested, whichever is the later.
(c) Limitation on liability upon showing of reasonable procedures for compliance with provisions
No person may be held liable for any violation of subsection (a) or (b) of this section if he shows by a preponderance of the evidence that at the time of the violation he maintained reasonable procedures to assure compliance with subsection (a) or (b) of this section.
(d) Prohibitions
(1) Certification
A consumer reporting agency shall not prepare or furnish an investigative consumer report unless the agency has received a certification under subsection (a)(2) of this section from the person who requested the report.
(2) Inquiries
A consumer reporting agency shall not make an inquiry for the purpose of preparing an investigative consumer report on a consumer for employment purposes if the making of the inquiry by an employer or prospective employer of the consumer would violate any applicable Federal or State equal employment opportunity law or regulation.
(3) Certain public record information
Except as otherwise provided in
(4) Certain adverse information
A consumer reporting agency shall not prepare or furnish an investigative consumer report on a consumer that contains information that is adverse to the interest of the consumer and that is obtained through a personal interview with a neighbor, friend, or associate of the consumer or with another person with whom the consumer is acquainted or who has knowledge of such item of information, unless—
(A) the agency has followed reasonable procedures to obtain confirmation of the information, from an additional source that has independent and direct knowledge of the information; or
(B) the person interviewed is the best possible source of the information.
(
Amendments
1996—Subsec. (a)(1)(B).
Subsec. (a)(2).
Subsec. (b).
Subsec. (d).
Effective Date of 1996 Amendment
Amendment by
§1681e. Compliance procedures
(a) Identity and purposes of credit users
Every consumer reporting agency shall maintain reasonable procedures designed to avoid violations of
(b) Accuracy of report
Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.
(c) Disclosure of consumer reports by users allowed
A consumer reporting agency may not prohibit a user of a consumer report furnished by the agency on a consumer from disclosing the contents of the report to the consumer, if adverse action against the consumer has been taken by the user based in whole or in part on the report.
(d) Notice to users and furnishers of information
(1) Notice requirement
A consumer reporting agency shall provide to any person—
(A) who regularly and in the ordinary course of business furnishes information to the agency with respect to any consumer; or
(B) to whom a consumer report is provided by the agency;
a notice of such person's responsibilities under this subchapter.
(2) Content of notice
The Federal Trade Commission shall prescribe the content of notices under paragraph (1), and a consumer reporting agency shall be in compliance with this subsection if it provides a notice under paragraph (1) that is substantially similar to the Federal Trade Commission prescription under this paragraph.
(e) Procurement of consumer report for resale
(1) Disclosure
A person may not procure a consumer report for purposes of reselling the report (or any information in the report) unless the person discloses to the consumer reporting agency that originally furnishes the report—
(A) the identity of the end-user of the report (or information); and
(B) each permissible purpose under
(2) Responsibilities of procurers for resale
A person who procures a consumer report for purposes of reselling the report (or any information in the report) shall—
(A) establish and comply with reasonable procedures designed to ensure that the report (or information) is resold by the person only for a purpose for which the report may be furnished under
(i) identifies each end user of the resold report (or information);
(ii) certifies each purpose for which the report (or information) will be used; and
(iii) certifies that the report (or information) will be used for no other purpose; and
(B) before reselling the report, make reasonable efforts to verify the identifications and certifications made under subparagraph (A).
(3) Resale of consumer report to a Federal agency or department
Notwithstanding paragraph (1) or (2), a person who procures a consumer report for purposes of reselling the report (or any information in the report) shall not disclose the identity of the end-user of the report under paragraph (1) or (2) if—
(A) the end user is an agency or department of the United States Government which procures the report from the person for purposes of determining the eligibility of the consumer concerned to receive access or continued access to classified information (as defined in
(B) the agency or department certifies in writing to the person reselling the report that nondisclosure is necessary to protect classified information or the safety of persons employed by or contracting with, or undergoing investigation for work or contracting with the agency or department.
(
Amendments
1997—Subsec. (e)(3).
1996—Subsecs. (c) to (e).
Effective Date of 1997 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1681f. Disclosures to governmental agencies
Notwithstanding the provisions of
(
§1681g. Disclosures to consumers
(a) Information on file; sources; report recipients
Every consumer reporting agency shall, upon request, and subject to
(1) All information in the consumer's file at the time of the request, except that nothing in this paragraph shall be construed to require a consumer reporting agency to disclose to a consumer any information concerning credit scores or any other risk scores or predictors relating to the consumer.
(2) The sources of the information; except that the sources of information acquired solely for use in preparing an investigative consumer report and actually used for no other purpose need not be disclosed: Provided, That in the event an action is brought under this subchapter, such sources shall be available to the plaintiff under appropriate discovery procedures in the court in which the action is brought.
(3)(A) Identification of each person (including each end-user identified under
(i) for employment purposes, during the 2-year period preceding the date on which the request is made; or
(ii) for any other purpose, during the 1-year period preceding the date on which the request is made.
(B) An identification of a person under subparagraph (A) shall include—
(i) the name of the person or, if applicable, the trade name (written in full) under which such person conducts business; and
(ii) upon request of the consumer, the address and telephone number of the person.
(C) Subparagraph (A) does not apply if—
(i) the end user is an agency or department of the United States Government that procures the report from the person for purposes of determining the eligibility of the consumer to whom the report relates to receive access or continued access to classified information (as defined in
(ii) the head of the agency or department makes a written finding as prescribed under
(4) The dates, original payees, and amounts of any checks upon which is based any adverse characterization of the consumer, included in the file at the time of the disclosure.
(5) A record of all inquiries received by the agency during the 1-year period preceding the request that identified the consumer in connection with a credit or insurance transaction that was not initiated by the consumer.
(b) Exempt information
The requirements of subsection (a) of this section respecting the disclosure of sources of information and the recipients of consumer reports do not apply to information received or consumer reports furnished prior to the effective date of this subchapter except to the extent that the matter involved is contained in the files of the consumer reporting agency on that date.
(c) Summary of rights required to be included with disclosure
(1) Summary of rights
A consumer reporting agency shall provide to a consumer, with each written disclosure by the agency to the consumer under this section—
(A) a written summary of all of the rights that the consumer has under this subchapter; and
(B) in the case of a consumer reporting agency that compiles and maintains files on consumers on a nationwide basis, a toll-free telephone number established by the agency, at which personnel are accessible to consumers during normal business hours.
(2) Specific items required to be included
The summary of rights required under paragraph (1) shall include—
(A) a brief description of this subchapter and all rights of consumers under this subchapter;
(B) an explanation of how the consumer may exercise the rights of the consumer under this subchapter;
(C) a list of all Federal agencies responsible for enforcing any provision of this subchapter and the address and any appropriate phone number of each such agency, in a form that will assist the consumer in selecting the appropriate agency;
(D) a statement that the consumer may have additional rights under State law and that the consumer may wish to contact a State or local consumer protection agency or a State attorney general to learn of those rights; and
(E) a statement that a consumer reporting agency is not required to remove accurate derogatory information from a consumer's file, unless the information is outdated under
(3) Form of summary of rights
For purposes of this subsection and any disclosure by a consumer reporting agency required under this subchapter with respect to consumers' rights, the Federal Trade Commission (after consultation with each Federal agency referred to in
(4) Effectiveness
No disclosures shall be required under this subsection until the date on which the Federal Trade Commission prescribes the form and content of such disclosures under paragraph (3).
(
References in Text
For the effective date of this subchapter, referred to in subsec. (b), see section 504(d) of
Amendments
1998—Subsec. (a)(3)(C).
1996—Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(3).
"(A) for employment purposes within the two-year period preceding the request, and
"(B) for any other purpose within the six-month period preceding the request."
Subsec. (a)(5).
Subsec. (c).
1994—Subsec. (a)(4).
Effective Date of 1998 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by
Simplified Disclosure To Maximize Comprehensibility and Standardization
Section 2408(e)(2), (3) of div. A of
"(2)
"(3)
Section Referred to in Other Sections
This section is referred to in
§1681h. Conditions and form of disclosure to consumers
(a) In general
(1) Proper identification
A consumer reporting agency shall require, as a condition of making the disclosures required under
(2) Disclosure in writing
Except as provided in subsection (b) of this section, the disclosures required to be made under
(b) Other forms of disclosure
(1) In general
If authorized by a consumer, a consumer reporting agency may make the disclosures required under 1 1681g of this title—
(A) other than in writing; and
(B) in such form as may be—
(i) specified by the consumer in accordance with paragraph (2); and
(ii) available from the agency.
(2) Form
A consumer may specify pursuant to paragraph (1) that disclosures under
(A) in person, upon the appearance of the consumer at the place of business of the consumer reporting agency where disclosures are regularly provided, during normal business hours, and on reasonable notice;
(B) by telephone, if the consumer has made a written request for disclosure by telephone;
(C) by electronic means, if available from the agency; or
(D) by any other reasonable means that is available from the agency.
(c) Trained personnel
Any consumer reporting agency shall provide trained personnel to explain to the consumer any information furnished to him pursuant to
(d) Persons accompanying consumer
The consumer shall be permitted to be accompanied by one other person of his choosing, who shall furnish reasonable identification. A consumer reporting agency may require the consumer to furnish a written statement granting permission to the consumer reporting agency to discuss the consumer's file in such person's presence.
(e) Limitation of liability
Except as provided in
(
Amendments
1996—
Subsec. (a).
Subsec. (b).
"(1) in person if he appears in person and furnishes proper identification; or
"(2) by telephone if he has made a written request, with proper identification, for telephone disclosure and the toll charge, if any, for the telephone call is prepaid by or charged directly to the consumer."
Subsec. (e).
Effective Date of 1996 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be followed by "section".
2 So in original. Probably should be followed by a comma.
§1681i. Procedure in case of disputed accuracy
(a) Reinvestigations of disputed information
(1) Reinvestigation required
(A) In general
If the completeness or accuracy of any item of information contained in a consumer's file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly of such dispute, the agency shall reinvestigate free of charge and record the current status of the disputed information, or delete the item from the file in accordance with paragraph (5), before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer.
(B) Extension of period to reinvestigate
Except as provided in subparagraph (C), the 30-day period described in subparagraph (A) may be extended for not more than 15 additional days if the consumer reporting agency receives information from the consumer during that 30-day period that is relevant to the reinvestigation.
(C) Limitations on extension of period to reinvestigate
Subparagraph (B) shall not apply to any reinvestigation in which, during the 30-day period described in subparagraph (A), the information that is the subject of the reinvestigation is found to be inaccurate or incomplete or the consumer reporting agency determines that the information cannot be verified.
(2) Prompt notice of dispute to furnisher of information
(A) In general
Before the expiration of the 5-business-day period beginning on the date on which a consumer reporting agency receives notice of a dispute from any consumer in accordance with paragraph (1), the agency shall provide notification of the dispute to any person who provided any item of information in dispute, at the address and in the manner established with the person. The notice shall include all relevant information regarding the dispute that the agency has received from the consumer.
(B) Provision of other information from consumer
The consumer reporting agency shall promptly provide to the person who provided the information in dispute all relevant information regarding the dispute that is received by the agency from the consumer after the period referred to in subparagraph (A) and before the end of the period referred to in paragraph (1)(A).
(3) Determination that dispute is frivolous or irrelevant
(A) In general
Notwithstanding paragraph (1), a consumer reporting agency may terminate a reinvestigation of information disputed by a consumer under that paragraph if the agency reasonably determines that the dispute by the consumer is frivolous or irrelevant, including by reason of a failure by a consumer to provide sufficient information to investigate the disputed information.
(B) Notice of determination
Upon making any determination in accordance with subparagraph (A) that a dispute is frivolous or irrelevant, a consumer reporting agency shall notify the consumer of such determination not later than 5 business days after making such determination, by mail or, if authorized by the consumer for that purpose, by any other means available to the agency.
(C) Contents of notice
A notice under subparagraph (B) shall include—
(i) the reasons for the determination under subparagraph (A); and
(ii) identification of any information required to investigate the disputed information, which may consist of a standardized form describing the general nature of such information.
(4) Consideration of consumer information
In conducting any reinvestigation under paragraph (1) with respect to disputed information in the file of any consumer, the consumer reporting agency shall review and consider all relevant information submitted by the consumer in the period described in paragraph (1)(A) with respect to such disputed information.
(5) Treatment of inaccurate or unverifiable information
(A) In general
If, after any reinvestigation under paragraph (1) of any information disputed by a consumer, an item of the information is found to be inaccurate or incomplete or cannot be verified, the consumer reporting agency shall promptly delete that item of information from the consumer's file or modify that item of information, as appropriate, based on the results of the reinvestigation.
(B) Requirements relating to reinsertion of previously deleted material
(i) Certification of accuracy of information
If any information is deleted from a consumer's file pursuant to subparagraph (A), the information may not be reinserted in the file by the consumer reporting agency unless the person who furnishes the information certifies that the information is complete and accurate.
(ii) Notice to consumer
If any information that has been deleted from a consumer's file pursuant to subparagraph (A) is reinserted in the file, the consumer reporting agency shall notify the consumer of the reinsertion in writing not later than 5 business days after the reinsertion or, if authorized by the consumer for that purpose, by any other means available to the agency.
(iii) Additional information
As part of, or in addition to, the notice under clause (ii), a consumer reporting agency shall provide to a consumer in writing not later than 5 business days after the date of the reinsertion—
(I) a statement that the disputed information has been reinserted;
(II) the business name and address of any furnisher of information contacted and the telephone number of such furnisher, if reasonably available, or of any furnisher of information that contacted the consumer reporting agency, in connection with the reinsertion of such information; and
(III) a notice that the consumer has the right to add a statement to the consumer's file disputing the accuracy or completeness of the disputed information.
(C) Procedures to prevent reappearance
A consumer reporting agency shall maintain reasonable procedures designed to prevent the reappearance in a consumer's file, and in consumer reports on the consumer, of information that is deleted pursuant to this paragraph (other than information that is reinserted in accordance with subparagraph (B)(i)).
(D) Automated reinvestigation system
Any consumer reporting agency that compiles and maintains files on consumers on a nationwide basis shall implement an automated system through which furnishers of information to that consumer reporting agency may report the results of a reinvestigation that finds incomplete or inaccurate information in a consumer's file to other such consumer reporting agencies.
(6) Notice of results of reinvestigation
(A) In general
A consumer reporting agency shall provide written notice to a consumer of the results of a reinvestigation under this subsection not later than 5 business days after the completion of the reinvestigation, by mail or, if authorized by the consumer for that purpose, by other means available to the agency.
(B) Contents
As part of, or in addition to, the notice under subparagraph (A), a consumer reporting agency shall provide to a consumer in writing before the expiration of the 5-day period referred to in subparagraph (A)—
(i) a statement that the reinvestigation is completed;
(ii) a consumer report that is based upon the consumer's file as that file is revised as a result of the reinvestigation;
(iii) a notice that, if requested by the consumer, a description of the procedure used to determine the accuracy and completeness of the information shall be provided to the consumer by the agency, including the business name and address of any furnisher of information contacted in connection with such information and the telephone number of such furnisher, if reasonably available;
(iv) a notice that the consumer has the right to add a statement to the consumer's file disputing the accuracy or completeness of the information; and
(v) a notice that the consumer has the right to request under subsection (d) of this section that the consumer reporting agency furnish notifications under that subsection.
(7) Description of reinvestigation procedure
A consumer reporting agency shall provide to a consumer a description referred to in paragraph (6)(B)(iii) by not later than 15 days after receiving a request from the consumer for that description.
(8) Expedited dispute resolution
If a dispute regarding an item of information in a consumer's file at a consumer reporting agency is resolved in accordance with paragraph (5)(A) by the deletion of the disputed information by not later than 3 business days after the date on which the agency receives notice of the dispute from the consumer in accordance with paragraph (1)(A), then the agency shall not be required to comply with paragraphs (2), (6), and (7) with respect to that dispute if the agency—
(A) provides prompt notice of the deletion to the consumer by telephone;
(B) includes in that notice, or in a written notice that accompanies a confirmation and consumer report provided in accordance with subparagraph (C), a statement of the consumer's right to request under subsection (d) of this section that the agency furnish notifications under that subsection; and
(C) provides written confirmation of the deletion and a copy of a consumer report on the consumer that is based on the consumer's file after the deletion, not later than 5 business days after making the deletion.
(b) Statement of dispute
If the reinvestigation does not resolve the dispute, the consumer may file a brief statement setting forth the nature of the dispute. The consumer reporting agency may limit such statements to not more than one hundred words if it provides the consumer with assistance in writing a clear summary of the dispute.
(c) Notification of consumer dispute in subsequent consumer reports
Whenever a statement of a dispute is filed, unless there is reasonable grounds to believe that it is frivolous or irrelevant, the consumer reporting agency shall, in any subsequent consumer report containing the information in question, clearly note that it is disputed by the consumer and provide either the consumer's statement or a clear and accurate codification or summary thereof.
(d) Notification of deletion of disputed information
Following any deletion of information which is found to be inaccurate or whose accuracy can no longer be verified or any notation as to disputed information, the consumer reporting agency shall, at the request of the consumer, furnish notification that the item has been deleted or the statement, codification or summary pursuant to subsection (b) or (c) of this section to any person specifically designated by the consumer who has within two years prior thereto received a consumer report for employment purposes, or within six months prior thereto received a consumer report for any other purpose, which contained the deleted or disputed information.
(
Amendments
1998—Subsec. (a)(7).
1996—Subsec. (a).
Subsec. (d).
Effective Date of 1998 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1681j. Charges for certain disclosures
(a) Reasonable charges allowed for certain disclosures
(1) In general
Except as provided in subsections (b), (c), and (d) of this section, a consumer reporting agency may impose a reasonable charge on a consumer—
(A) for making a disclosure to the consumer pursuant to
(i) shall not exceed $8; and
(ii) shall be indicated to the consumer before making the disclosure; and
(B) for furnishing, pursuant to
(i) shall not exceed the charge that the agency would impose on each designated recipient for a consumer report; and
(ii) shall be indicated to the consumer before furnishing such information.
(2) Modification of amount
The Federal Trade Commission shall increase the amount referred to in paragraph (1)(A)(i) on January 1 of each year, based proportionally on changes in the Consumer Price Index, with fractional changes rounded to the nearest fifty cents.
(b) Free disclosure after adverse notice to consumer
Each consumer reporting agency that maintains a file on a consumer shall make all disclosures pursuant to
(c) Free disclosure under certain other circumstances
Upon the request of the consumer, a consumer reporting agency shall make all disclosures pursuant to
(1) is unemployed and intends to apply for employment in the 60-day period beginning on the date on which the certification is made;
(2) is a recipient of public welfare assistance; or
(3) has reason to believe that the file on the consumer at the agency contains inaccurate information due to fraud.
(d) Other charges prohibited
A consumer reporting agency shall not impose any charge on a consumer for providing any notification required by this subchapter or making any disclosure required by this subchapter, except as authorized by subsection (a) of this section.
(
Amendments
1996—
Effective Date of 1996 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1681k. Public record information for employment purposes
(a) In general
A consumer reporting agency which furnishes a consumer report for employment purposes and which for that purpose compiles and reports items of information on consumers which are matters of public record and are likely to have an adverse effect upon a consumer's ability to obtain employment shall—
(1) at the time such public record information is reported to the user of such consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported; or
(2) maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer's ability to obtain employment is reported it is complete and up to date. For purposes of this paragraph, items of public record relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of the item at the time of the report is reported.
(b) Exemption for national security investigations
Subsection (a) of this section does not apply in the case of an agency or department of the United States Government that seeks to obtain and use a consumer report for employment purposes, if the head of the agency or department makes a written finding as prescribed under
(
Amendments
1998—
Effective Date of 1998 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1681l. Restrictions on investigative consumer reports
Whenever a consumer reporting agency prepares an investigative consumer report, no adverse information in the consumer report (other than information which is a matter of public record) may be included in a subsequent consumer report unless such adverse information has been verified in the process of making such subsequent consumer report, or the adverse information was received within the three-month period preceding the date the subsequent report is furnished.
(
§1681m. Requirements on users of consumer reports
(a) Duties of users taking adverse actions on basis of information contained in consumer reports
If any person takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer report, the person shall—
(1) provide oral, written, or electronic notice of the adverse action to the consumer;
(2) provide to the consumer orally, in writing, or electronically—
(A) the name, address, and telephone number of the consumer reporting agency (including a toll-free telephone number established by the agency if the agency compiles and maintains files on consumers on a nationwide basis) that furnished the report to the person; and
(B) a statement that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the consumer the specific reasons why the adverse action was taken; and
(3) provide to the consumer an oral, written, or electronic notice of the consumer's right—
(A) to obtain, under
(B) to dispute, under
(b) Adverse action based on information obtained from third parties other than consumer reporting agencies
(1) In general
Whenever credit for personal, family, or household purposes involving a consumer is denied or the charge for such credit is increased either wholly or partly because of information obtained from a person other than a consumer reporting agency bearing upon the consumer's credit worthiness,1 credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living, the user of such information shall, within a reasonable period of time, upon the consumer's written request for the reasons for such adverse action received within sixty days after learning of such adverse action, disclose the nature of the information to the consumer. The user of such information shall clearly and accurately disclose to the consumer his right to make such written request at the time such adverse action is communicated to the consumer.
(2) Duties of person taking certain actions based on information provided by affiliate
(A) Duties, generally
If a person takes an action described in subparagraph (B) with respect to a consumer, based in whole or in part on information described in subparagraph (C), the person shall—
(i) notify the consumer of the action, including a statement that the consumer may obtain the information in accordance with clause (ii); and
(ii) upon a written request from the consumer received within 60 days after transmittal of the notice required by clause (i), disclose to the consumer the nature of the information upon which the action is based by not later than 30 days after receipt of the request.
(B) Action described
An action referred to in subparagraph (A) is an adverse action described in
(C) Information described
Information referred to in subparagraph (A)—
(i) except as provided in clause (ii), is information that—
(I) is furnished to the person taking the action by a person related by common ownership or affiliated by common corporate control to the person taking the action; and
(II) bears on the credit worthiness,1 credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living of the consumer; and
(ii) does not include—
(I) information solely as to transactions or experiences between the consumer and the person furnishing the information; or
(II) information in a consumer report.
(c) Reasonable procedures to assure compliance
No person shall be held liable for any violation of this section if he shows by a preponderance of the evidence that at the time of the alleged violation he maintained reasonable procedures to assure compliance with the provisions of this section.
(d) Duties of users making written credit or insurance solicitations on basis of information contained in consumer files
(1) In general
Any person who uses a consumer report on any consumer in connection with any credit or insurance transaction that is not initiated by the consumer, that is provided to that person under
(A) information contained in the consumer's consumer report was used in connection with the transaction;
(B) the consumer received the offer of credit or insurance because the consumer satisfied the criteria for credit worthiness 2 or insurability under which the consumer was selected for the offer;
(C) if applicable, the credit or insurance may not be extended if, after the consumer responds to the offer, the consumer does not meet the criteria used to select the consumer for the offer or any applicable criteria bearing on credit worthiness 2 or insurability or does not furnish any required collateral;
(D) the consumer has a right to prohibit information contained in the consumer's file with any consumer reporting agency from being used in connection with any credit or insurance transaction that is not initiated by the consumer; and
(E) the consumer may exercise the right referred to in subparagraph (D) by notifying a notification system established under
(2) Disclosure of address and telephone number
A statement under paragraph (1) shall include the address and toll-free telephone number of the appropriate notification system established under
(3) Maintaining criteria on file
A person who makes an offer of credit or insurance to a consumer under a credit or insurance transaction described in paragraph (1) shall maintain on file the criteria used to select the consumer to receive the offer, all criteria bearing on credit worthiness 2 or insurability, as applicable, that are the basis for determining whether or not to extend credit or insurance pursuant to the offer, and any requirement for the furnishing of collateral as a condition of the extension of credit or insurance, until the expiration of the 3-year period beginning on the date on which the offer is made to the consumer.
(4) Authority of Federal agencies regarding unfair or deceptive acts or practices not affected
This section is not intended to affect the authority of any Federal or State agency to enforce a prohibition against unfair or deceptive acts or practices, including the making of false or misleading statements in connection with a credit or insurance transaction that is not initiated by the consumer.
(
Amendments
1996—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Effective Date of 1996 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "creditworthiness,".
2 So in original. Probably should be "creditworthiness".
§1681n. Civil liability for willful noncompliance
(a) In general
Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of—
(1)(A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000; or
(B) in the case of liability of a natural person for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, actual damages sustained by the consumer as a result of the failure or $1,000, whichever is greater;
(2) such amount of punitive damages as the court may allow; and
(3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.
(b) Civil liability for knowing noncompliance
Any person who obtains a consumer report from a consumer reporting agency under false pretenses or knowingly without a permissible purpose shall be liable to the consumer reporting agency for actual damages sustained by the consumer reporting agency or $1,000, whichever is greater.
(c) Attorney's fees
Upon a finding by the court that an unsuccessful pleading, motion, or other paper filed in connection with an action under this section was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorney's fees reasonable in relation to the work expended in responding to the pleading, motion, or other paper.
(
Amendments
1996—Subsec. (a).
Subsec. (a)(1).
Subsec. (b).
Subsec. (c).
Effective Date of 1996 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1681o. Civil liability for negligent noncompliance
(a) In general
Any person who is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of—
(1) any actual damages sustained by the consumer as a result of the failure;
(2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.
(b) Attorney's fees
On a finding by the court that an unsuccessful pleading, motion, or other paper filed in connection with an action under this section was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorney's fees reasonable in relation to the work expended in responding to the pleading, motion, or other paper.
(
Amendments
1996—Subsec. (a).
Subsec. (b).
Effective Date of 1996 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1681p. Jurisdiction of courts; limitation of actions
An action to enforce any liability created under this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within two years from the date on which the liability arises, except that where a defendant has materially and willfully misrepresented any information required under this subchapter to be disclosed to an individual and the information so misrepresented is material to the establishment of the defendant's liability to that individual under this subchapter, the action may be brought at any time within two years after discovery by the individual of the misrepresentation.
(
§1681q. Obtaining information under false pretenses
Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined under title 18, imprisoned for not more than 2 years, or both.
(
Amendments
1996—
Effective Date of 1996 Amendment
Amendment by
§1681r. Unauthorized disclosures by officers or employees
Any officer or employee of a consumer reporting agency who knowingly and willfully provides information concerning an individual from the agency's files to a person not authorized to receive that information shall be fined under title 18, imprisoned for not more than 2 years, or both.
(
Amendments
1996—
Effective Date of 1996 Amendment
Amendment by
§1681s. Administrative enforcement
(a) Enforcement by Federal Trade Commission
(1) Compliance with the requirements imposed under this subchapter shall be enforced under the Federal Trade Commission Act [
(2)(A) In the event of a knowing violation, which constitutes a pattern or practice of violations of this subchapter, the Commission may commence a civil action to recover a civil penalty in a district court of the United States against any person that violates this subchapter. In such action, such person shall be liable for a civil penalty of not more than $2,500 per violation.
(B) In determining the amount of a civil penalty under subparagraph (A), the court shall take into account the degree of culpability, any history of prior such conduct, ability to pay, effect on ability to continue to do business, and such other matters as justice may require.
(3) Notwithstanding paragraph (2), a court may not impose any civil penalty on a person for a violation of
(b) Enforcement by other agencies
Compliance with the requirements imposed under this subchapter with respect to consumer reporting agencies, persons who use consumer reports from such agencies, persons who furnish information to such agencies, and users of information that are subject to subsection (d) of
(1) section 8 of the Federal Deposit Insurance Act [
(A) national banks, and Federal branches and Federal agencies of foreign banks, by the Office of the Comptroller of the Currency;
(B) member banks of the Federal Reserve System (other than national banks), branches and agencies of foreign banks (other than Federal branches, Federal agencies, and insured State branches of foreign banks), commercial lending companies owned or controlled by foreign banks, and organizations operating under section 25 or 25(a) 1 of the Federal Reserve Act [
(C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System) and insured State branches of foreign banks, by the Board of Directors of the Federal Deposit Insurance Corporation;
(2) section 8 of the Federal Deposit Insurance Act [
(3) the Federal Credit Union Act [
(4) subtitle IV of title 49, by the Secretary of Transportation, with respect to all carriers subject to the jurisdiction of the Surface Transportation Board;
(5) part A of subtitle VII of title 49, by the Secretary of Transportation with respect to any air carrier or foreign air carrier subject to that part; and
(6) the Packers and Stockyards Act, 1921 [
The terms used in paragraph (1) that are not defined in this subchapter or otherwise defined in section 3(s) of the Federal Deposit Insurance Act (
(c) State action for violations
(1) Authority of States
In addition to such other remedies as are provided under State law, if the chief law enforcement officer of a State, or an official or agency designated by a State, has reason to believe that any person has violated or is violating this subchapter, the State—
(A) may bring an action to enjoin such violation in any appropriate United States district court or in any other court of competent jurisdiction;
(B) subject to paragraph (5), may bring an action on behalf of the residents of the State to recover—
(i) damages for which the person is liable to such residents under
(ii) in the case of a violation of
(iii) damages of not more than $1,000 for each willful or negligent violation; and
(C) in the case of any successful action under subparagraph (A) or (B), shall be awarded the costs of the action and reasonable attorney fees as determined by the court.
(2) Rights of Federal regulators
The State shall serve prior written notice of any action under paragraph (1) upon the Federal Trade Commission or the appropriate Federal regulator determined under subsection (b) of this section and provide the Commission or appropriate Federal regulator with a copy of its complaint, except in any case in which such prior notice is not feasible, in which case the State shall serve such notice immediately upon instituting such action. The Federal Trade Commission or appropriate Federal regulator shall have the right—
(A) to intervene in the action;
(B) upon so intervening, to be heard on all matters arising therein;
(C) to remove the action to the appropriate United States district court; and
(D) to file petitions for appeal.
(3) Investigatory powers
For purposes of bringing any action under this subsection, nothing in this subsection shall prevent the chief law enforcement officer, or an official or agency designated by a State, from exercising the powers conferred on the chief law enforcement officer or such official by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary and other evidence.
(4) Limitation on State action while Federal action pending
If the Federal Trade Commission or the appropriate Federal regulator has instituted a civil action or an administrative action under section 8 of the Federal Deposit Insurance Act [
(5) Limitations on State actions for violation of section 1681s–2(a)(1)
(A) Violation of injunction required
A State may not bring an action against a person under paragraph (1)(B) for a violation of
(i) the person has been enjoined from committing the violation, in an action brought by the State under paragraph (1)(A); and
(ii) the person has violated the injunction.
(B) Limitation on damages recoverable
In an action against a person under paragraph (1)(B) for a violation of
(d) Enforcement under other authority
For the purpose of the exercise by any agency referred to in subsection (b) of this section of its powers under any Act referred to in that subsection, a violation of any requirement imposed under this subchapter shall be deemed to be a violation of a requirement imposed under that Act. In addition to its powers under any provision of law specifically referred to in subsection (b) of this section, each of the agencies referred to in that subsection may exercise, for the purpose of enforcing compliance with any requirement imposed under this subchapter any other authority conferred on it by law.
(e) Regulatory authority
(1) The Federal banking agencies referred to in paragraphs (1) and (2) of subsection (b) of this section shall jointly prescribe such regulations as necessary to carry out the purposes of this subchapter with respect to any persons identified under paragraphs (1) and (2) of subsection (b) of this section, and the Board of Governors of the Federal Reserve System shall have authority to prescribe regulations consistent with such joint regulations with respect to bank holding companies and affiliates (other than depository institutions and consumer reporting agencies) of such holding companies.
(2) The Board of the National Credit Union Administration shall prescribe such regulations as necessary to carry out the purposes of this subchapter with respect to any persons identified under paragraph (3) of subsection (b) of this section.
(
References in Text
The Federal Trade Commission Act, referred to in subsec. (a), is act Sept. 26, 1914, ch. 311,
Section 25(a) of the Federal Reserve Act, referred to in subsec. (b)(1)(B), which is classified to subchapter II (§611 et seq.) of
The Federal Credit Union Act, referred to in subsec. (b)(3), is act June 26, 1934, ch. 750,
The Packers and Stockyards Act, 1921, referred to in subsec. (b)(6), is act Aug. 15, 1921, ch. 64,
This subchapter, referred to in subsec. (e), was in the original, "this Act" and was translated as reading "this title", meaning title VI of
Codification
In subsec. (b)(4), "subtitle IV of title 49" substituted for "the Acts to regulate commerce" on authority of
In subsec. (b)(5), "part A of subtitle VII of title 49" substituted for "the Federal Aviation Act of 1958 [49 App. U.S.C. 1301 et seq.]" and "that part" substituted for "that Act" on authority of
Amendments
1999—Subsec. (a)(4).
Subsec. (d).
Subsec. (e).
1998—Subsec. (b).
1996—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
1995—Subsec. (b)(4).
1992—Subsec. (b)(1)(C).
1991—Subsec. (b).
"(A) national banks, by the Comptroller of the Currency;
"(B) member banks of the Federal Reserve System (other than national banks), by the Federal Reserve Board; and
"(C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System), by the Board of Directors of the Federal Deposit Insurance Corporation."
1989—Subsec. (b)(2).
1984—Subsec. (b)(5).
Effective Date of 1998 Amendment
Amendment by
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1995 Amendment
Amendment by
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1984 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§1681s–1. Information on overdue child support obligations
Notwithstanding any other provision of this subchapter, a consumer reporting agency shall include in any consumer report furnished by the agency in accordance with
(1) is provided—
(A) to the consumer reporting agency by a State or local child support enforcement agency; or
(B) to the consumer reporting agency and verified by any local, State, or Federal Government agency; and
(2) antedates the report by 7 years or less.
(
Prior Provisions
A prior section 622 of
Effective Date
Section effective Jan. 1, 1993, see section 2(d) of
§1681s–2. Responsibilities of furnishers of information to consumer reporting agencies
(a) Duty of furnishers of information to provide accurate information
(1) Prohibition
(A) Reporting information with actual knowledge of errors
A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or consciously avoids knowing that the information is inaccurate.
(B) Reporting information after notice and confirmation of errors
A person shall not furnish information relating to a consumer to any consumer reporting agency if—
(i) the person has been notified by the consumer, at the address specified by the person for such notices, that specific information is inaccurate; and
(ii) the information is, in fact, inaccurate.
(C) No address requirement
A person who clearly and conspicuously specifies to the consumer an address for notices referred to in subparagraph (B) shall not be subject to subparagraph (A); however, nothing in subparagraph (B) shall require a person to specify such an address.
(2) Duty to correct and update information
A person who—
(A) regularly and in the ordinary course of business furnishes information to one or more consumer reporting agencies about the person's transactions or experiences with any consumer; and
(B) has furnished to a consumer reporting agency information that the person determines is not complete or accurate,
shall promptly notify the consumer reporting agency of that determination and provide to the agency any corrections to that information, or any additional information, that is necessary to make the information provided by the person to the agency complete and accurate, and shall not thereafter furnish to the agency any of the information that remains not complete or accurate.
(3) Duty to provide notice of dispute
If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer.
(4) Duty to provide notice of closed accounts
A person who regularly and in the ordinary course of business furnishes information to a consumer reporting agency regarding a consumer who has a credit account with that person shall notify the agency of the voluntary closure of the account by the consumer, in information regularly furnished for the period in which the account is closed.
(5) Duty to provide notice of delinquency of accounts
A person who furnishes information to a consumer reporting agency regarding a delinquent account being placed for collection, charged to profit or loss, or subjected to any similar action shall, not later than 90 days after furnishing the information, notify the agency of the month and year of the commencement of the delinquency that immediately preceded the action.
(b) Duties of furnishers of information upon notice of dispute
(1) In general
After receiving notice pursuant to
(A) conduct an investigation with respect to the disputed information;
(B) review all relevant information provided by the consumer reporting agency pursuant to
(C) report the results of the investigation to the consumer reporting agency; and
(D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis.
(2) Deadline
A person shall complete all investigations, reviews, and reports required under paragraph (1) regarding information provided by the person to a consumer reporting agency, before the expiration of the period under
(c) Limitation on liability
(d) Limitation on enforcement
Subsection (a) of this section shall be enforced exclusively under
(
Prior Provisions
A prior section 623 of
Effective Date
Section effective 365 days after Sept. 30, 1996, with special rule for early compliance, see section 2420 of
Section Referred to in Other Sections
This section is referred to in
§1681t. Relation to State laws
(a) In general
Except as provided in subsections (b) and (c) of this section, this subchapter does not annul, alter, affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to the collection, distribution, or use of any information on consumers, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency.
(b) General exceptions
No requirement or prohibition may be imposed under the laws of any State—
(1) with respect to any subject matter regulated under—
(A) subsection (c) or (e) of
(B)
(C) subsections (a) and (b) of
(D)
(E)
(F)
(i) with respect to
(ii) with respect to section 1785.25(a) of the California Civil Code (as in effect on September 30, 1996);
(2) with respect to the exchange of information among persons affiliated by common ownership or common corporate control, except that this paragraph shall not apply with respect to subsection (a) or (c)(1) of
(3) with respect to the form and content of any disclosure required to be made under
(c) "Firm offer of credit or insurance" defined
Notwithstanding any definition of the term "firm offer of credit or insurance" (or any equivalent term) under the laws of any State, the definition of that term contained in
(d) Limitations
Subsections (b) and (c) of this section—
(1) do not affect any settlement, agreement, or consent judgment between any State Attorney General and any consumer reporting agency in effect on September 30, 1996; and
(2) do not apply to any provision of State law (including any provision of a State constitution) that—
(A) is enacted after January 1, 2004;
(B) states explicitly that the provision is intended to supplement this subchapter; and
(C) gives greater protection to consumers than is provided under this subchapter.
(
Codification
Another section 624 of
Amendments
1996—Subsec. (a).
Subsecs. (b) to (d).
Effective Date of 1996 Amendment
Amendment by
§1681u. Disclosures to FBI for counterintelligence purposes
(a) Identity of financial institutions
Notwithstanding
(1) such information is necessary for the conduct of an authorized foreign counterintelligence investigation; and
(2) there are specific and articulable facts giving reason to believe that the consumer—
(A) is a foreign power (as defined in
(B) is an agent of a foreign power and is engaging or has engaged in an act of international terrorism (as that term is defined in
(b) Identifying information
Notwithstanding the provisions of
(1) such information is necessary to the conduct of an authorized counterintelligence investigation; and
(2) there is information giving reason to believe that the consumer has been, or is about to be, in contact with a foreign power or an agent of a foreign power (as defined in
(c) Court order for disclosure of consumer reports
Notwithstanding
(1) the consumer report is necessary for the conduct of an authorized foreign counterintelligence investigation; and
(2) there are specific and articulable facts giving reason to believe that the consumer whose consumer report is sought—
(A) is an agent of a foreign power, and
(B) is engaging or has engaged in an act of international terrorism (as that term is defined in
The terms of an order issued under this subsection shall not disclose that the order is issued for purposes of a counterintelligence investigation.
(d) Confidentiality
No consumer reporting agency or officer, employee, or agent of a consumer reporting agency shall disclose to any person, other than those officers, employees, or agents of a consumer reporting agency necessary to fulfill the requirement to disclose information to the Federal Bureau of Investigation under this section, that the Federal Bureau of Investigation has sought or obtained the identity of financial institutions or a consumer report respecting any consumer under subsection (a), (b), or (c) of this section, and no consumer reporting agency or officer, employee, or agent of a consumer reporting agency shall include in any consumer report any information that would indicate that the Federal Bureau of Investigation has sought or obtained such information or a consumer report.
(e) Payment of fees
The Federal Bureau of Investigation shall, subject to the availability of appropriations, pay to the consumer reporting agency assembling or providing report or information in accordance with procedures established under this section a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching, reproducing, or transporting books, papers, records, or other data required or requested to be produced under this section.
(f) Limit on dissemination
The Federal Bureau of Investigation may not disseminate information obtained pursuant to this section outside of the Federal Bureau of Investigation, except to other Federal agencies as may be necessary for the approval or conduct of a foreign counterintelligence investigation, or, where the information concerns a person subject to the Uniform Code of Military Justice, to appropriate investigative authorities within the military department concerned as may be necessary for the conduct of a joint foreign counterintelligence investigation.
(g) Rules of construction
Nothing in this section shall be construed to prohibit information from being furnished by the Federal Bureau of Investigation pursuant to a subpoena or court order, in connection with a judicial or administrative proceeding to enforce the provisions of this subchapter. Nothing in this section shall be construed to authorize or permit the withholding of information from the Congress.
(h) Reports to Congress
On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence and the Committee on Banking, Finance and Urban Affairs of the House of Representatives, and the Select Committee on Intelligence and the Committee on Banking, Housing, and Urban Affairs of the Senate concerning all requests made pursuant to subsections (a), (b), and (c) of this section.
(i) Damages
Any agency or department of the United States obtaining or disclosing any consumer reports, records, or information contained therein in violation of this section is liable to the consumer to whom such consumer reports, records, or information relate in an amount equal to the sum of—
(1) $100, without regard to the volume of consumer reports, records, or information involved;
(2) any actual damages sustained by the consumer as a result of the disclosure;
(3) if the violation is found to have been willful or intentional, such punitive damages as a court may allow; and
(4) in the case of any successful action to enforce liability under this subsection, the costs of the action, together with reasonable attorney fees, as determined by the court.
(j) Disciplinary actions for violations
If a court determines that any agency or department of the United States has violated any provision of this section and the court finds that the circumstances surrounding the violation raise questions of whether or not an officer or employee of the agency or department acted willfully or intentionally with respect to the violation, the agency or department shall promptly initiate a proceeding to determine whether or not disciplinary action is warranted against the officer or employee who was responsible for the violation.
(k) Good-faith exception
Notwithstanding any other provision of this subchapter, any consumer reporting agency or agent or employee thereof making disclosure of consumer reports or identifying information pursuant to this subsection in good-faith reliance upon a certification of the Federal Bureau of Investigation pursuant to provisions of this section shall not be liable to any person for such disclosure under this subchapter, the constitution of any State, or any law or regulation of any State or any political subdivision of any State.
(l) Limitation of remedies
Notwithstanding any other provision of this subchapter, the remedies and sanctions set forth in this section shall be the only judicial remedies and sanctions for violation of this section.
(m) Injunctive relief
In addition to any other remedy contained in this section, injunctive relief shall be available to require compliance with the procedures of this section. In the event of any successful action under this subsection, costs together with reasonable attorney fees, as determined by the court, may be recovered.
(
References in Text
This subchapter, referred to in subsec. (g), was in the original, "this Act" and was translated as reading "this title", meaning title VI of
Codification
Another section 624 of
Change of Name
Committee on Banking, Finance and Urban Affairs of House of Representatives treated as referring to Committee on Banking and Financial Services of House of Representatives by section 1(a) of
SUBCHAPTER IV—EQUAL CREDIT OPPORTUNITY
Subchapter Referred to in Other Sections
This subchapter is referred to in title 12 sections 1708, 4545; title 42 section 3608.
§1691. Scope of prohibition
(a) Activities constituting discrimination
It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction—
(1) on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract);
(2) because all or part of the applicant's income derives from any public assistance program; or
(3) because the applicant has in good faith exercised any right under this chapter.
(b) Activities not constituting discrimination
It shall not constitute discrimination for purposes of this subchapter for a creditor—
(1) to make an inquiry of marital status if such inquiry is for the purpose of ascertaining the creditor's rights and remedies applicable to the particular extension of credit and not to discriminate in a determination of credit-worthiness; 1
(2) to make an inquiry of the applicant's age or of whether the applicant's income derives from any public assistance program if such inquiry is for the purpose of determining the amount and probable continuance of income levels, credit history, or other pertinent element of credit-worthiness 1 as provided in regulations of the Board;
(3) to use any empirically derived credit system which considers age if such system is demonstrably and statistically sound in accordance with regulations of the Board, except that in the operation of such system the age of an elderly applicant may not be assigned a negative factor or value; or
(4) to make an inquiry or to consider the age of an elderly applicant when the age of such applicant is to be used by the creditor in the extension of credit in favor of such applicant.
(c) Additional activities not constituting discrimination
It is not a violation of this section for a creditor to refuse to extend credit offered pursuant to—
(1) any credit assistance program expressly authorized by law for an economically disadvantaged class of persons;
(2) any credit assistance program administered by a nonprofit organization for its members or an economically disadvantaged class of persons; or
(3) any special purpose credit program offered by a profit-making organization to meet special social needs which meets standards prescribed in regulations by the Board;
if such refusal is required by or made pursuant to such program.
(d) Reason for adverse action; procedure applicable; "adverse action" defined
(1) Within thirty days (or such longer reasonable time as specified in regulations of the Board for any class of credit transaction) after receipt of a completed application for credit, a creditor shall notify the applicant of its action on the application.
(2) Each applicant against whom adverse action is taken shall be entitled to a statement of reasons for such action from the creditor. A creditor satisfies this obligation by—
(A) providing statements of reasons in writing as a matter of course to applicants against whom adverse action is taken; or
(B) giving written notification of adverse action which discloses (i) the applicant's right to a statement of reasons within thirty days after receipt by the creditor of a request made within sixty days after such notification, and (ii) the identity of the person or office from which such statement may be obtained. Such statement may be given orally if the written notification advises the applicant of his right to have the statement of reasons confirmed in writing on written request.
(3) A statement of reasons meets the requirements of this section only if it contains the specific reasons for the adverse action taken.
(4) Where a creditor has been requested by a third party to make a specific extension of credit directly or indirectly to an applicant, the notification and statement of reasons required by this subsection may be made directly by such creditor, or indirectly through the third party, provided in either case that the identity of the creditor is disclosed.
(5) The requirements of paragraph (2), (3), or (4) may be satisfied by verbal statements or notifications in the case of any creditor who did not act on more than one hundred and fifty applications during the calendar year preceding the calendar year in which the adverse action is taken, as determined under regulations of the Board.
(6) For purposes of this subsection, the term "adverse action" means a denial or revocation of credit, a change in the terms of an existing credit arrangement, or a refusal to grant credit in substantially the amount or on substantially the terms requested. Such term does not include a refusal to extend additional credit under an existing credit arrangement where the applicant is delinquent or otherwise in default, or where such additional credit would exceed a previously established credit limit.
(e) Appraisals; copies of reports to applicants; costs
Each creditor shall promptly furnish an applicant, upon written request by the applicant made within a reasonable period of time of the application, a copy of the appraisal report used in connection with the applicant's application for a loan that is or would have been secured by a lien on residential real property. The creditor may require the applicant to reimburse the creditor for the cost of the appraisal.
(
Amendments
1991—Subsec. (e).
1976—Subsec. (a).
Subsec. (b).
Subsecs. (c), (d).
Effective Date
Section 708, formerly §707, of title VII of
Short Title
This subchapter known as the "Equal Credit Opportunity Act", see Short Title note set out under
Congressional Findings and Statement of Purpose
Section 502 of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should not be hyphenated.
§1691a. Definitions; rules of construction
(a) The definitions and rules of construction set forth in this section are applicable for the purposes of this subchapter.
(b) The term "applicant" means any person who applies to a creditor directly for an extension, renewal, or continuation of credit, or applies to a creditor indirectly by use of an existing credit plan for an amount exceeding a previously established credit limit.
(c) The term "Board" refers to the Board of Governors of the Federal Reserve System.
(d) The term "credit" means the right granted by a creditor to a debtor to defer payment of debt or to incur debts and defer its payment or to purchase property or services and defer payment therefor.
(e) The term "creditor" means any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit.
(f) The term "person" means a natural person, a corporation, government or governmental subdivision or agency, trust, estate, partnership, cooperative, or association.
(g) Any reference to any requirement imposed under this subchapter or any provision thereof includes reference to the regulations of the Board under this subchapter or the provision thereof in question.
(
Section Referred to in Other Sections
This section is referred to in
§1691b. Promulgation of regulations by Board; establishment of Consumer Advisory Council by Board; duties, membership, etc., of Council
(a) Regulations
(1) The Board shall prescribe regulations to carry out the purposes of this subchapter. These regulations may contain but are not limited to such classifications, differentiation, or other provision, and may provide for such adjustments and exceptions for any class of transactions, as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchapter, to prevent circumvention or evasion thereof, or to facilitate or substantiate compliance therewith.
(2) Such regulations may exempt from the provisions of this subchapter any class of transactions that are not primarily for personal, family, or household purposes, or business or commercial loans made available by a financial institution, except that a particular type within a class of such transactions may be exempted if the Board determines, after making an express finding that the application of this subchapter or of any provision of this subchapter of such transaction would not contribute substantially to effecting the purposes of this subchapter.
(3) An exemption granted pursuant to paragraph (2) shall be for no longer than five years and shall be extended only if the Board makes a subsequent determination, in the manner described by such paragraph, that such exemption remains appropriate.
(4) Pursuant to Board regulations, entities making business or commercial loans shall maintain such records or other data relating to such loans as may be necessary to evidence compliance with this subsection or enforce any action pursuant to the authority of this chapter. In no event shall such records or data be maintained for a period of less than one year. The Board shall promulgate regulations to implement this paragraph in the manner prescribed by
(5) The Board shall provide in regulations that an applicant for a business or commercial loan shall be provided a written notice of such applicant's right to receive a written statement of the reasons for the denial of such loan.
(b) Consumer Advisory Council
The Board shall establish a Consumer Advisory Council to advise and consult with it in the exercise of its functions under this chapter and to advise and consult with it concerning other consumer related matters it may place before the Council. In appointing the members of the Council, the Board shall seek to achieve a fair representation of the interests of creditors and consumers. The Council shall meet from time to time at the call of the Board. Members of the Council who are not regular full-time employees of the United States shall, while attending meetings of such Council, be entitled to receive compensation at a rate fixed by the Board, but not exceeding $100 per day, including travel time. Such members may be allowed travel expenses, including transportation and subsistence, while away from their homes or regular place of business.
(
Amendments
1988—Subsec. (a).
1976—
Effective Date of 1976 Amendment
Amendment by
§1691c. Administrative enforcement
(a) Enforcing agencies
Compliance with the requirements imposed under this subchapter shall be enforced under:
(1) section 8 of the Federal Deposit Insurance Act [
(A) national banks, and Federal branches and Federal agencies of foreign banks, by the Office of the Comptroller of the Currency;
(B) member banks of the Federal Reserve System (other than national banks), branches and agencies of foreign banks (other than Federal branches, Federal agencies, and insured State branches of foreign banks), commercial lending companies owned or controlled by foreign banks, and organizations operating under section 25 or 25(a) 1 of the Federal Reserve Act [
(C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System) and insured State branches of foreign banks, by the Board of Directors of the Federal Deposit Insurance Corporation;
(2) Section 8 of the Federal Deposit Insurance Act [
(3) The Federal Credit Union Act [
(4) Subtitle IV of title 49, by the Secretary of Transportation, with respect to all carriers subject to the jurisdiction of the Surface Transportation Board.
(5) Part A of subtitle VII of title 49, by the Secretary of Transportation with respect to any air carrier or foreign air carrier subject to that part.
(6) The Packers and Stockyards Act, 1921 [
(7) The Farm Credit Act of 1971 [
(8) The Securities Exchange Act of 1934 [
(9) The Small Business Investment Act of 1958 [
The terms used in paragraph (1) that are not defined in this subchapter or otherwise defined in section 3(s) of the Federal Deposit Insurance Act (
(b) Violations of subchapter deemed violations of preexisting statutory requirements; additional agency powers
For the purpose of the exercise by any agency referred to in subsection (a) of this section of its powers under any Act referred to in that subsection, a violation of any requirement imposed under this subchapter shall be deemed to be a violation of a requirement imposed under that Act. In addition to its powers under any provision of law specifically referred to in subsection (a) of this section, each of the agencies referred to in that subsection may exercise for the purpose of enforcing compliance with any requirement imposed under this subchapter, any other authority conferred on it by law. The exercise of the authorities of any of the agencies referred to in subsection (a) of this section for the purpose of enforcing compliance with any requirement imposed under this subchapter shall in no way preclude the exercise of such authorities for the purpose of enforcing compliance with any other provision of law not relating to the prohibition of discrimination on the basis of sex or marital status with respect to any aspect of a credit transaction.
(c) Overall enforcement authority of Federal Trade Commission
Except to the extent that enforcement of the requirements imposed under this subchapter is specifically committed to some other Government agency under subsection (a) of this section, the Federal Trade Commission shall enforce such requirements. For the purpose of the exercise by the Federal Trade Commission of its functions and powers under the Federal Trade Commission Act [
(d) Rules and regulations by enforcing agencies
The authority of the Board to issue regulations under this subchapter does not impair the authority of any other agency designated in this section to make rules respecting its own procedures in enforcing compliance with requirements imposed under this subchapter.
(
References in Text
Section 25(a) of the Federal Reserve Act, referred to in subsec. (a)(1)(B), which is classified to subchapter II (§611 et seq.) of
The Federal Credit Union Act, referred to in subsec. (a)(3), is act June 26, 1934, ch. 750,
The Packers and Stockyards Act, 1921, referred to in subsec. (a)(6), is act Aug. 15, 1921, ch. 64,
The Farm Credit Act of 1971, referred to in subsec. (a)(7), is
The Securities Exchange Act of 1934, referred to in subsec. (a)(8), is act June 6, 1934, ch. 404,
The Small Business Investment Act of 1958, referred to in subsec. (a)(9), is
The Federal Trade Commission Act, referred to in subsec. (c), is act Sept. 26, 1914, ch. 311,
Codification
In subsec. (a)(4), "Subtitle IV of title 49" substituted for "The Acts to regulate commerce" on authority of
In subsec. (a)(5), "Part A of subtitle VII of title 49" substituted for "The Federal Aviation Act of 1958 [49 App. U.S.C. 1301 et seq.]" and "that part" substituted for "that Act" on authority of
Amendments
1995—Subsec. (a)(4).
1992—Subsec. (a)(1)(C).
1991—Subsec. (a).
"(A) national banks, by the Comptroller of the Currency,
"(B) member banks of the Federal Reserve System (other than national banks), by the Federal Reserve Board,
"(C) banks the deposits or accounts of which are insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System), by the Board of Directors of the Federal Deposit Insurance Corporation."
1989—Subsec. (a)(2).
1984—Subsec. (a)(5).
1976—Subsec. (c).
Effective Date of 1995 Amendment
Amendment by
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1984 Amendment
Amendment by
Effective Date of 1976 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§1691c–1. Incentives for self-testing and self-correction
(a) Privileged information
(1) Conditions for privilege
A report or result of a self-test (as that term is defined by regulations of the Board) shall be considered to be privileged under paragraph (2) if a creditor—
(A) conducts, or authorizes an independent third party to conduct, a self-test of any aspect of a credit transaction by a creditor, in order to determine the level or effectiveness of compliance with this subchapter by the creditor; and
(B) has identified any possible violation of this subchapter by the creditor and has taken, or is taking, appropriate corrective action to address any such possible violation.
(2) Privileged self-test
If a creditor meets the conditions specified in subparagraphs (A) and (B) of paragraph (1) with respect to a self-test described in that paragraph, any report or results of that self-test—
(A) shall be privileged; and
(B) may not be obtained or used by any applicant, department, or agency in any—
(i) proceeding or civil action in which one or more violations of this subchapter are alleged; or
(ii) examination or investigation relating to compliance with this subchapter.
(b) Results of self-testing
(1) In general
No provision of this section may be construed to prevent an applicant, department, or agency from obtaining or using a report or results of any self-test in any proceeding or civil action in which a violation of this subchapter is alleged, or in any examination or investigation of compliance with this subchapter if—
(A) the creditor or any person with lawful access to the report or results—
(i) voluntarily releases or discloses all, or any part of, the report or results to the applicant, department, or agency, or to the general public; or
(ii) refers to or describes the report or results as a defense to charges of violations of this subchapter against the creditor to whom the self-test relates; or
(B) the report or results are sought in conjunction with an adjudication or admission of a violation of this subchapter for the sole purpose of determining an appropriate penalty or remedy.
(2) Disclosure for determination of penalty or remedy
Any report or results of a self-test that are disclosed for the purpose specified in paragraph (1)(B)—
(A) shall be used only for the particular proceeding in which the adjudication or admission referred to in paragraph (1)(B) is made; and
(B) may not be used in any other action or proceeding.
(c) Adjudication
An applicant, department, or agency that challenges a privilege asserted under this section may seek a determination of the existence and application of that privilege in—
(1) a court of competent jurisdiction; or
(2) an administrative law proceeding with appropriate jurisdiction.
(
Effective Date
Section 2302(c) of div. A of
"(1)
"(2)
"(A) before that effective date, a complaint against the creditor or person engaged in residential real estate related lending activities (as the case may be) was—
"(i) formally filed in any court of competent jurisdiction; or
"(ii) the subject of an ongoing administrative law proceeding;
"(B) in the case of section 704A of the Equal Credit Opportunity Act, the creditor has waived the privilege pursuant to subsection (b)(1)(A)(i) of that section; or
"(C) in the case of section 814A of the Fair Housing Act, the person engaged in residential real estate related lending activities has waived the privilege pursuant to subsection (b)(1)(A)(i) of that section."
Regulations
Section 2302(a)(2) of div. A of
"(A)
"(B)
"(i)
"(ii)
"(iii)
§1691d. Applicability of other laws
(a) Requests for signature of husband and wife for creation of valid lien, etc.
A request for the signature of both parties to a marriage for the purpose of creating a valid lien, passing clear title, waiving inchoate rights to property, or assigning earnings, shall not constitute discrimination under this subchapter: Provided, however, That this provision shall not be construed to permit a creditor to take sex or marital status into account in connection with the evaluation of creditworthiness of any applicant.
(b) State property laws affecting creditworthiness
Consideration or application of State property laws directly or indirectly affecting creditworthiness shall not constitute discrimination for purposes of this subchapter.
(c) State laws prohibiting separate extension of consumer credit to husband and wife
Any provision of State law which prohibits the separate extension of consumer credit to each party to a marriage shall not apply in any case where each party to a marriage voluntarily applies for separate credit from the same creditor: Provided, That in any case where such a State law is so preempted, each party to the marriage shall be solely responsible for the debt so contracted.
(d) Combining credit accounts of husband and wife with same creditor to determine permissible finance charges or loan ceilings under Federal or State laws
When each party to a marriage separately and voluntarily applies for and obtains separate credit accounts with the same creditor, those accounts shall not be aggregated or otherwise combined for purposes of determining permissible finance charges or permissible loan ceilings under the laws of any State or of the United States.
(e) Election of remedies under subchapter or State law; nature of relief determining applicability
Where the same act or omission constitutes a violation of this subchapter and of applicable State law, a person aggrieved by such conduct may bring a legal action to recover monetary damages either under this subchapter or under such State law, but not both. This election of remedies shall not apply to court actions in which the relief sought does not include monetary damages or to administrative actions.
(f) Compliance with inconsistent State laws; determination of inconsistency
This subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this subchapter from complying with, the laws of any State with respect to credit discrimination, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency. The Board is authorized to determine whether such inconsistencies exist. The Board may not determine that any State law is inconsistent with any provision of this subchapter if the Board determines that such law gives greater protection to the applicant.
(g) Exemption by regulation of credit transactions covered by State law; failure to comply with State law
The Board shall by regulation exempt from the requirements of
(
Amendments
1976—Subsec. (e).
Subsecs. (f), (g).
Effective Date of 1976 Amendment
Amendment by
§1691e. Civil liability
(a) Individual or class action for actual damages
Any creditor who fails to comply with any requirement imposed under this subchapter shall be liable to the aggrieved applicant for any actual damages sustained by such applicant acting either in an individual capacity or as a member of a class.
(b) Recovery of punitive damages in individual and class action for actual damages; exemptions; maximum amount of punitive damages in individual actions; limitation on total recovery in class actions; factors determining amount of award
Any creditor, other than a government or governmental subdivision or agency, who fails to comply with any requirement imposed under this subchapter shall be liable to the aggrieved applicant for punitive damages in an amount not greater than $10,000, in addition to any actual damages provided in subsection (a) of this section, except that in the case of a class action the total recovery under this subsection shall not exceed the lesser of $500,000 or 1 per centum of the net worth of the creditor. In determining the amount of such damages in any action, the court shall consider, among other relevant factors, the amount of any actual damages awarded, the frequency and persistence of failures of compliance by the creditor, the resources of the creditor, the number of persons adversely affected, and the extent to which the creditor's failure of compliance was intentional.
(c) Action for equitable and declaratory relief
Upon application by an aggrieved applicant, the appropriate United States district court or any other court of competent jurisdiction may grant such equitable and declaratory relief as is necessary to enforce the requirements imposed under this subchapter.
(d) Recovery of costs and attorney fees
In the case of any successful action under subsection (a), (b), or (c) of this section, the costs of the action, together with a reasonable attorney's fee as determined by the court, shall be added to any damages awarded by the court under such subsection.
(e) Good faith compliance with rule, regulation, or interpretation of Board or interpretation or approval by an official or employee of Federal Reserve System duly authorized by Board
No provision of this subchapter imposing liability shall apply to any act done or omitted in good faith in conformity with any official rule, regulation, or interpretation thereof by the Board or in conformity with any interpretation or approval by an official or employee of the Federal Reserve System duly authorized by the Board to issue such interpretations or approvals under such procedures as the Board may prescribe therefor, notwithstanding that after such act or omission has occurred, such rule, regulation, interpretation, or approval is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
(f) Jurisdiction of courts; time for maintenance of action; exceptions
Any action under this section may be brought in the appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction. No such action shall be brought later than two years from the date of the occurrence of the violation, except that—
(1) whenever any agency having responsibility for administrative enforcement under
(2) whenever the Attorney General commences a civil action under this section within two years from the date of the occurrence of the violation,
then any applicant who has been a victim of the discrimination which is the subject of such proceeding or civil action may bring an action under this section not later than one year after the commencement of that proceeding or action.
(g) Request by responsible enforcement agency to Attorney General for civil action
The agencies having responsibility for administrative enforcement under
(h) Authority for Attorney General to bring civil action; jurisdiction
When a matter is referred to the Attorney General pursuant to subsection (g) of this section, or whenever he has reason to believe that one or more creditors are engaged in a pattern or practice in violation of this subchapter, the Attorney General may bring a civil action in any appropriate United States district court for such relief as may be appropriate, including actual and punitive damages and injunctive relief.
(i) Recovery under both subchapter and fair housing enforcement provisions prohibited for violation based on same transaction
No person aggrieved by a violation of this subchapter and by a violation of
(j) Discovery of creditor's granting standards
Nothing in this subchapter shall be construed to prohibit the discovery of a creditor's credit granting standards under appropriate discovery procedures in the court or agency in which an action or proceeding is brought.
(k) Notice to HUD of violations
Whenever an agency referred to in paragraph (1), (2), or (3) of
(1) has reason to believe, as a result of receiving a consumer complaint, conducting a consumer compliance examination, or otherwise, that a violation of this subchapter has occurred;
(2) has reason to believe that the alleged violation would be a violation of the Fair Housing Act [
(3) does not refer the matter to the Attorney General pursuant to subsection (g) of this section,
the agency shall notify the Secretary of Housing and Urban Development of the violation, and shall notify the applicant that the Secretary of Housing and Urban Development has been notified of the alleged violation and that remedies for the violation may be available under the Fair Housing Act.
(
References in Text
The Fair Housing Act, referred to in subsec. (k), is title VIII of
Amendments
1991—Subsec. (g).
Subsec. (h).
Subsec. (k).
1976—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Subsecs. (g) to (j).
Effective Date of 1976 Amendment
Amendment by
1 See References in Text note below.
§1691f. Annual reports to Congress; contents
Each year, the Board and the Attorney General shall, respectively, make reports to the Congress concerning the administration of their functions under this subchapter, including such recommendations as the Board and the Attorney General, respectively, deem necessary or appropriate. In addition, each report of the Board shall include its assessment of the extent to which compliance with the requirements of this subchapter is being achieved, and a summary of the enforcement actions taken by each of the agencies assigned administrative enforcement responsibilities under
(
Amendments
1980—
Effective Date of 1980 Amendment
Amendment by
Effective Date
Section effective Mar. 23, 1976, see section 708 of
SUBCHAPTER V—DEBT COLLECTION PRACTICES
Subchapter Referred to in Other Sections
This subchapter is referred to in
§1692. Congressional findings and declaration of purpose
(a) Abusive practices
There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.
(b) Inadequacy of laws
Existing laws and procedures for redressing these injuries are inadequate to protect consumers.
(c) Available non-abusive collection methods
Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.
(d) Interstate commerce
Abusive debt collection practices are carried on to a substantial extent in interstate commerce and through means and instrumentalities of such commerce. Even where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect interstate commerce.
(e) Purposes
It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.
(
Effective Date
Section 818 of title VIII of
Short Title
This subchapter known as the "Fair Debt Collection Practices Act", see Short Title note set out under
§1692a. Definitions
As used in this subchapter—
(1) The term "Commission" means the Federal Trade Commission.
(2) The term "communication" means the conveying of information regarding a debt directly or indirectly to any person through any medium.
(3) The term "consumer" means any natural person obligated or allegedly obligated to pay any debt.
(4) The term "creditor" means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.
(5) The term "debt" means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.
(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of
(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;
(B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts;
(C) any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties;
(D) any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt;
(E) any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from such consumers and distributing such amounts to creditors; and
(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.
(7) The term "location information" means a consumer's place of abode and his telephone number at such place, or his place of employment.
(8) The term "State" means any State, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any political subdivision of any of the foregoing.
(
Amendments
1986—Par. (6).
Section Referred to in Other Sections
This section is referred to in title 31 section 3718.
§1692b. Acquisition of location information
Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall—
(1) identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer;
(2) not state that such consumer owes any debt;
(3) not communicate with any such person more than once unless requested to do so by such person or unless the debt collector reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;
(4) not communicate by post card;
(5) not use any language or symbol on any envelope or in the contents of any communication effected by the mails or telegram that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt; and
(6) after the debt collector knows the consumer is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, such attorney's name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the debt collector.
(
Section Referred to in Other Sections
This section is referred to in
§1692c. Communication in connection with debt collection
(a) Communication with the consumer generally
Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt—
(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock antemeridian and before 9 o'clock postmeridian, local time at the consumer's location;
(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or
(3) at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication.
(b) Communication with third parties
Except as provided in
(c) Ceasing communication
If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except—
(1) to advise the consumer that the debt collector's further efforts are being terminated;
(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or
(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.
If such notice from the consumer is made by mail, notification shall be complete upon receipt.
(d) "Consumer" defined
For the purpose of this section, the term "consumer" includes the consumer's spouse, parent (if the consumer is a minor), guardian, executor, or administrator.
(
§1692d. Harassment or abuse
A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 1681a(f) or 1681b(3) 1 of this title.
(4) The advertisement for sale of any debt to coerce payment of the debt.
(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
(6) Except as provided in
(
References in Text
1 See References in Text note below.
§1692e. False or misleading representations
A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof.
(2) The false representation of—
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.
(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.
(4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.
(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.
(6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to—
(A) lose any claim or defense to payment of the debt; or
(B) become subject to any practice prohibited by this subchapter.
(7) The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.
(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.
(9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.
(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.
(12) The false representation or implication that accounts have been turned over to innocent purchasers for value.
(13) The false representation or implication that documents are legal process.
(14) The use of any business, company, or organization name other than the true name of the debt collector's business, company, or organization.
(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.
(16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as defined by
(
Amendments
1996—Par. (11).
Effective Date of 1996 Amendment
Section 2305(b) of div. A of
§1692f. Unfair practices
A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.
(2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector's intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.
(3) The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution.
(4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.
(5) Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.
(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if—
(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or disablement.
(7) Communicating with a consumer regarding a debt by post card.
(8) Using any language or symbol, other than the debt collector's address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.
(
Section Referred to in Other Sections
This section is referred to in
§1692g. Validation of debts
(a) Notice of debt; contents
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
(b) Disputed debts
If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.
(c) Admission of liability
The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.
(
Effective Date
Section applicable only with respect to debts for which the initial attempt to collect occurs after the effective date of this subchapter, which takes effect upon the expiration of six months after Sept. 20, 1977, see section 818 of
Section Referred to in Other Sections
This section is referred to in title 42 section 292f.
§1692h. Multiple debts
If any consumer owes multiple debts and makes any single payment to any debt collector with respect to such debts, such debt collector may not apply such payment to any debt which is disputed by the consumer and, where applicable, shall apply such payment in accordance with the consumer's directions.
(
§1692i. Legal actions by debt collectors
(a) Venue
Any debt collector who brings any legal action on a debt against any consumer shall—
(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or
(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity—
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of the action.
(b) Authorization of actions
Nothing in this subchapter shall be construed to authorize the bringing of legal actions by debt collectors.
(
§1692j. Furnishing certain deceptive forms
(a) It is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating.
(b) Any person who violates this section shall be liable to the same extent and in the same manner as a debt collector is liable under
(
§1692k. Civil liability
(a) Amount of damages
Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
(1) any actual damage sustained by such person as a result of such failure;
(2)(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs.
(b) Factors considered by court
In determining the amount of liability in any action under subsection (a) of this section, the court shall consider, among other relevant factors—
(1) in any individual action under subsection (a)(2)(A) of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(B) of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collector's noncompliance was intentional.
(c) Intent
A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
(d) Jurisdiction
An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.
(e) Advisory opinions of Commission
No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Commission, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
(
Section Referred to in Other Sections
This section is referred to in
§1692l. Administrative enforcement
(a) Federal Trade Commission
Compliance with this subchapter shall be enforced by the Commission, except to the extent that enforcement of the requirements imposed under this subchapter is specifically committed to another agency under subsection (b) of this section. For purpose of the exercise by the Commission of its functions and powers under the Federal Trade Commission Act [
(b) Applicable provisions of law
Compliance with any requirements imposed under this subchapter shall be enforced under—
(1) section 8 of the Federal Deposit Insurance Act [
(A) national banks, and Federal branches and Federal agencies of foreign banks, by the Office of the Comptroller of the Currency;
(B) member banks of the Federal Reserve System (other than national banks), branches and agencies of foreign banks (other than Federal branches, Federal agencies, and insured State branches of foreign banks), commercial lending companies owned or controlled by foreign banks, and organizations operating under section 25 or 25(a) 1 of the Federal Reserve Act [
(C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System) and insured State branches of foreign banks, by the Board of Directors of the Federal Deposit Insurance Corporation;
(2) section 8 of the Federal Deposit Insurance Act [
(3) the Federal Credit Union Act [
(4) subtitle IV of title 49, by the Secretary of Transportation, with respect to all carriers subject to the jurisdiction of the Surface Transportation Board;
(5) part A of subtitle VII of title 49, by the Secretary of Transportation with respect to any air carrier or any foreign air carrier subject to that part; and
(6) the Packers and Stockyards Act, 1921 [
The terms used in paragraph (1) that are not defined in this subchapter or otherwise defined in section 3(s) of the Federal Deposit Insurance Act (
(c) Agency powers
For the purpose of the exercise by any agency referred to in subsection (b) of this section of its powers under any Act referred to in that subsection, a violation of any requirement imposed under this subchapter shall be deemed to be a violation of a requirement imposed under that Act. In addition to its powers under any provision of law specifically referred to in subsection (b) of this section, each of the agencies referred to in that subsection may exercise, for the purpose of enforcing compliance with any requirement imposed under this subchapter any other authority conferred on it by law, except as provided in subsection (d) of this section.
(d) Rules and regulations
Neither the Commission nor any other agency referred to in subsection (b) of this section may promulgate trade regulation rules or other regulations with respect to the collection of debts by debt collectors as defined in this subchapter.
(
References in Text
The Federal Trade Commission Act, referred to in subsec. (a), is act Sept. 26, 1914, ch. 311,
Section 25(a) of the Federal Reserve Act, referred to in subsec. (b)(1)(B), which is classified to subchapter II (§611 et seq.) of
The Federal Credit Union Act, referred to in subsec. (b)(3), is act June 26, 1934, ch. 750,
The Packers and Stockyards Act, 1921, referred to in subsec. (b)(6), is act Aug. 15, 1921, ch. 64,
Codification
In subsec. (b)(4), "subtitle IV of title 49" substituted for "the Acts to regulate commerce" on authority of
In subsec. (b)(5), "part A of subtitle VII of title 49" substituted for "the Federal Aviation Act of 1958 [49 App. U.S.C. 1301 et seq.]" and "that part" substituted for "that Act" on authority of
Amendments
1995—Subsec. (b)(4).
1992—Subsec. (b)(1)(C).
1991—Subsec. (b).
"(A) national banks, by the Comptroller of the Currency;
"(B) member banks of the Federal Reserve System (other than national banks), by the Federal Reserve Board; and
"(C) banks the deposits or accounts of which are insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System), by the Board of Directors of the Federal Deposit Insurance Corporation;".
1989—Subsec. (b)(2).
1984—Subsec. (b)(5).
Effective Date of 1995 Amendment
Amendment by
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1984 Amendment
Amendment by
Transfer of Functions
"National Credit Union Administration Board" substituted for "Administrator of the National Credit Union Administration" in subsec. (b)(3) pursuant to section 501 of
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§1692m. Reports to Congress by the Commission; views of other Federal agencies
(a) Not later than one year after the effective date of this subchapter and at one-year intervals thereafter, the Commission shall make reports to the Congress concerning the administration of its functions under this subchapter, including such recommendations as the Commission deems necessary or appropriate. In addition, each report of the Commission shall include its assessment of the extent to which compliance with this subchapter is being achieved and a summary of the enforcement actions taken by the Commission under
(b) In the exercise of its functions under this subchapter, the Commission may obtain upon request the views of any other Federal agency which exercises enforcement functions under
(
References in Text
The effective date of this subchapter, referred to in subsec. (a), is the date occurring on expiration of six months after Sept. 20, 1977. See section 818 of
§1692n. Relation to State laws
This subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency. For purposes of this section, a State law is not inconsistent with this subchapter if the protection such law affords any consumer is greater than the protection provided by this subchapter.
(
§1692o. Exemption for State regulation
The Commission shall by regulation exempt from the requirements of this subchapter any class of debt collection practices within any State if the Commission determines that under the law of that State that class of debt collection practices is subject to requirements substantially similar to those imposed by this subchapter, and that there is adequate provision for enforcement.
(
SUBCHAPTER VI—ELECTRONIC FUND TRANSFERS
§1693. Congressional findings and declaration of purpose
(a) Rights and liabilities undefined
The Congress finds that the use of electronic systems to transfer funds provides the potential for substantial benefits to consumers. However, due to the unique characteristics of such systems, the application of existing consumer protection legislation is unclear, leaving the rights and liabilities of consumers, financial institutions, and intermediaries in electronic fund transfers undefined.
(b) Purposes
It is the purpose of this subchapter to provide a basic framework establishing the rights, liabilities, and responsibilities of participants in electronic fund transfer systems. The primary objective of this subchapter, however, is the provision of individual consumer rights.
(
Effective Date
Section 921 of title IX of
Short Title
This subchapter known as the "Electronic Fund Transfer Act", see Short Title note set out under
§1693a. Definitions
As used in this subchapter—
(1) the term "accepted card or other means of access" means a card, code, or other means of access to a consumer's account for the purpose of initiating electronic fund transfers when the person to whom such card or other means of access was issued has requested and received or has signed or has used, or authorized another to use, such card or other means of access for the purpose of transferring money between accounts or obtaining money, property, labor, or services;
(2) the term "account" means a demand deposit, savings deposit, or other asset account (other than an occasional or incidental credit balance in an open end credit plan as defined in
(3) the term "Board" means the Board of Governors of the Federal Reserve System;
(4) the term "business day" means any day on which the offices of the consumer's financial institution involved in an electronic fund transfer are open to the public for carrying on substantially all of its business functions;
(5) the term "consumer" means a natural person;
(6) the term "electronic fund transfer" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, or computer or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, direct deposits or withdrawals of funds, and transfers initiated by telephone. Such term does not include—
(A) any check guarantee or authorization service which does not directly result in a debit or credit to a consumer's account:
(B) any transfer of funds, other than those processed by automated clearinghouse, made by a financial institution on behalf of a consumer by means of a service that transfers funds held at either Federal Reserve banks or other depository institutions and which is not designed primarily to transfer funds on behalf of a consumer;
(C) any transaction the primary purpose of which is the purchase or sale of securities or commodities through a broker-dealer registered with or regulated by the Securities and Exchange Commission;
(D) any automatic transfer from a savings account to a demand deposit account pursuant to an agreement between a consumer and a financial institution for the purpose of covering an overdraft or maintaining an agreed upon minimum balance in the consumer's demand deposit account; or
(E) any transfer of funds which is initiated by a telephone conversation between a consumer and an officer or employee of a financial institution which is not pursuant to a prearranged plan and under which periodic or recurring transfers are not contemplated;
as determined under regulations of the Board;
(7) the term "electronic terminal" means an electronic device, other than a telephone operated by a consumer, through which a consumer may initiate an electronic fund transfer. Such term includes, but is not limited to, point-of-sale terminals, automated teller machines, and cash dispensing machines;
(8) the term "financial institution" means a State or National bank, a State or Federal savings and loan association, a mutual savings bank, a State or Federal credit union, or any other person who, directly or indirectly, holds an account belonging to a consumer;
(9) the term "preauthorized electronic fund transfer" means an electronic fund transfer authorized in advance to recur at substantially regular intervals;
(10) the term "State" means any State, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any political subdivision of any of the foregoing; and
(11) the term "unauthorized electronic fund transfer" means an electronic fund transfer from a consumer's account initiated by a person other than the consumer without actual authority to initiate such transfer and from which the consumer receives no benefit, but the term does not include any electronic fund transfer (A) initiated by a person other than the consumer who was furnished with the card, code, or other means of access to such consumer's account by such consumer, unless the consumer has notified the financial institution involved that transfers by such other person are no longer authorized, (B) initiated with fraudulent intent by the consumer or any person acting in concert with the consumer, or (C) which constitutes an error committed by a financial institution.
(
§1693b. Regulations
(a) Prescription by Board
The Board shall prescribe regulations to carry out the purposes of this subchapter. In prescribing such regulations, the Board shall:
(1) consult with the other agencies referred to in
(2) prepare an analysis of economic impact which considers the costs and benefits to financial institutions, consumers, and other users of electronic fund transfers, including the extent to which additional documentation, reports, records, or other paper work would be required, and the effects upon competition in the provision of electronic banking services among large and small financial institutions and the availability of such services to different classes of consumers, particularly low income consumers,
(3) to the extent practicable, the Board shall demonstrate that the consumer protections of the proposed regulations outweigh the compliance costs imposed upon consumers and financial institutions, and
(4) any proposed regulations and accompanying analyses shall be sent promptly to Congress by the Board.
(b) Issuance of model clauses
The Board shall issue model clauses for optional use by financial institutions to facilitate compliance with the disclosure requirements of
(c) Criteria; modification of requirements
Regulations prescribed hereunder may contain such classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for any class of electronic fund transfers, as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchapter, to prevent circumvention or evasion thereof, or to facilitate compliance therewith. The Board shall by regulation modify the requirements imposed by this subchapter on small financial institutions if the Board determines that such modifications are necessary to alleviate any undue compliance burden on small financial institutions and such modifications are consistent with the purpose and objective of this subchapter.
(d) Applicability to service providers other than certain financial institutions
(1) In general
If electronic fund transfer services are made available to consumers by a person other than a financial institution holding a consumer's account, the Board shall by regulation assure that the disclosures, protections, responsibilities, and remedies created by this subchapter are made applicable to such persons and services.
(2) State and local government electronic benefit transfer systems
(A) "Electronic benefit transfer system" defined
In this paragraph, the term "electronic benefit transfer system"—
(i) means a system under which a government agency distributes needs-tested benefits by establishing accounts that may be accessed by recipients electronically, such as through automated teller machines or point-of-sale terminals; and
(ii) does not include employment-related payments, including salaries and pension, retirement, or unemployment benefits established by a Federal, State, or local government agency.
(B) Exemption generally
The disclosures, protections, responsibilities, and remedies established under this subchapter, and any regulation prescribed or order issued by the Board in accordance with this subchapter, shall not apply to any electronic benefit transfer system established under State or local law or administered by a State or local government.
(C) Exception for direct deposit into recipient's account
Subparagraph (B) shall not apply with respect to any electronic funds transfer under an electronic benefit transfer system for a deposit directly into a consumer account held by the recipient of the benefit.
(D) Rule of construction
No provision of this paragraph—
(i) affects or alters the protections otherwise applicable with respect to benefits established by any other provision 1 Federal, State, or local law; or
(ii) otherwise supersedes the application of any State or local law.
(3) Fee disclosures at automated teller machines
(A) In general
The regulations prescribed under paragraph (1) shall require any automated teller machine operator who imposes a fee on any consumer for providing host transfer services to such consumer to provide notice in accordance with subparagraph (B) to the consumer (at the time the service is provided) of—
(i) the fact that a fee is imposed by such operator for providing the service; and
(ii) the amount of any such fee.
(B) Notice requirements
(i) On the machine
The notice required under clause (i) of subparagraph (A) with respect to any fee described in such subparagraph shall be posted in a prominent and conspicuous location on or at the automated teller machine at which the electronic fund transfer is initiated by the consumer.
(ii) On the screen
The notice required under clauses (i) and (ii) of subparagraph (A) with respect to any fee described in such subparagraph shall appear on the screen of the automated teller machine, or on a paper notice issued from such machine, after the transaction is initiated and before the consumer is irrevocably committed to completing the transaction, except that during the period beginning on November 12, 1999, and ending on December 31, 2004, this clause shall not apply to any automated teller machine that lacks the technical capability to disclose the notice on the screen or to issue a paper notice after the transaction is initiated and before the consumer is irrevocably committed to completing the transaction.
(C) Prohibition on fees not properly disclosed and explicitly assumed by consumer
No fee may be imposed by any automated teller machine operator in connection with any electronic fund transfer initiated by a consumer for which a notice is required under subparagraph (A), unless—
(i) the consumer receives such notice in accordance with subparagraph (B); and
(ii) the consumer elects to continue in the manner necessary to effect the transaction after receiving such notice.
(D) Definitions
For purposes of this paragraph, the following definitions shall apply:
(i) Automated teller machine operator
The term "automated teller machine operator" means any person who—
(I) operates an automated teller machine at which consumers initiate electronic fund transfers; and
(II) is not the financial institution that holds the account of such consumer from which the transfer is made.
(ii) Electronic fund transfer
The term "electronic fund transfer" includes a transaction that involves a balance inquiry initiated by a consumer in the same manner as an electronic fund transfer, whether or not the consumer initiates a transfer of funds in the course of the transaction.
(iii) Host transfer services
The term "host transfer services" means any electronic fund transfer made by an automated teller machine operator in connection with a transaction initiated by a consumer at an automated teller machine operated by such operator.
(
Amendments
1999—Subsec. (d)(3).
1996—Subsec. (d).
"(2)
"(A)
"(B)
"(C)
"(i) affecting or altering the protections otherwise applicable with respect to benefits established by Federal, State, or local law; or
"(ii) otherwise superseding the application of any State or local law.
"(D)
"(i) means a program under which a government agency distributes needs-tested benefits by establishing accounts to be accessed by recipients electronically, such as through automated teller machines, or point-of-sale terminals; and
"(ii) does not include employment-related payments, including salaries and pension, retirement, or unemployment benefits established by Federal, State, or local governments."
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be followed by "of".
§1693c. Terms and conditions of transfers
(a) Disclosures; time; form; contents
The terms and conditions of electronic fund transfers involving a consumer's account shall be disclosed at the time the consumer contracts for an electronic fund transfer service, in accordance with regulations of the Board. Such disclosures shall be in readily understandable language and shall include, to the extent applicable—
(1) the consumer's liability for unauthorized electronic fund transfers and, at the financial institution's option, notice of the advisability of prompt reporting of any loss, theft, or unauthorized use of a card, code, or other means of access;
(2) the telephone number and address of the person or office to be notified in the event the consumer believes than 1 an unauthorized electronic fund transfer has been or may be effected;
(3) the type and nature of electronic fund transfers which the consumer may initiate, including any limitations on the frequency or dollar amount of such transfers, except that the details of such limitations need not be disclosed if their confidentiality is necessary to maintain the security of an electronic fund transfer system, as determined by the Board;
(4) any charges for electronic fund transfers or for the right to make such transfers;
(5) the consumer's right to stop payment of a preauthorized electronic fund transfer and the procedure to initiate such a stop payment order;
(6) the consumer's right to receive documentation of electronic fund transfers under
(7) a summary, in a form prescribed by regulations of the Board, of the error resolution provisions of
(8) the financial institution's liability to the consumer under
(9) under what circumstances the financial institution will in the ordinary course of business disclose information concerning the consumer's account to third persons; and
(10) a notice to the consumer that a fee may be imposed by—
(A) an automated teller machine operator (as defined in
(B) any national, regional, or local network utilized to effect the transaction.
(b) Notification of changes to consumer
A financial institution shall notify a consumer in writing at least twenty-one days prior to the effective date of any change in any term or condition of the consumer's account required to be disclosed under subsection (a) of this section if such change would result in greater cost or liability for such consumer or decreased access to the consumer's account. A financial institution may, however, implement a change in the terms or conditions of an account without prior notice when such change is immediately necessary to maintain or restore the security of an electronic fund transfer system or a consumer's account. Subject to subsection (a)(3) of this section, the Board shall require subsequent notification if such a change is made permanent.
(c) Time for disclosures respecting accounts accessible prior to effective date of this subchapter
For any account of a consumer made accessible to electronic fund transfers prior to the effective date of this subchapter, the information required to be disclosed to the consumer under subsection (a) of this section shall be disclosed not later than the earlier of—
(1) the first periodic statement required by
(2) thirty days after the effective date of this subchapter.
(
References in Text
For effective date of this subchapter, referred to in subsec. (c), see section 921 of
Amendments
1999—Subsec. (a)(10).
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "that".
§1693d. Documentation of transfers
(a) Availability of written documentation to consumer; contents
For each electronic fund transfer initiated by a consumer from an electronic terminal, the financial institution holding such consumer's account shall, directly or indirectly, at the time the transfer is initiated, make available to the consumer written documentation of such transfer. The documentation shall clearly set forth to the extent applicable—
(1) the amount involved and date the transfer is initiated;
(2) the type of transfer;
(3) the identity of the consumer's account with the financial institution from which or to which funds are transferred;
(4) the identity of any third party to whom or from whom funds are transferred; and
(5) the location or identification of the electronic terminal involved.
(b) Notice of credit to consumer
For a consumer's account which is scheduled to be credited by a preauthorized electronic fund transfer from the same payor at least once in each successive sixty-day period, except where the payor provides positive notice of the transfer to the consumer, the financial institution shall elect to provide promptly either positive notice to the consumer when the credit is made as scheduled, or negative notice to the consumer when the credit is not made as scheduled, in accordance with regulations of the Board. The means of notice elected shall be disclosed to the consumer in accordance with
(c) Periodic statement; contents
A financial institution shall provide each consumer with a periodic statement for each account of such consumer that may be accessed by means of an electronic fund transfer. Except as provided in subsections (d) and (e) of this section, such statement shall be provided at least monthly for each monthly or shorter cycle in which an electronic fund transfer affecting the account has occurred, or every three months, whichever is more frequent. The statement, which may include information regarding transactions other than electronic fund transfers, shall clearly set forth—
(1) with regard to each electronic fund transfer during the period, the information described in subsection (a) of this section, which may be provided on an accompanying document;
(2) the amount of any fee or charge assessed by the financial institution during the period for electronic fund transfers or for account maintenance;
(3) the balances in the consumer's account at the beginning of the period and at the close of the period; and
(4) the address and telephone number to be used by the financial institution for the purpose of receiving any statement inquiry or notice of account error from the consumer. Such address and telephone number shall be preceded by the caption "Direct Inquiries To:" or other similar language indicating that the address and number are to be used for such inquiries or notices.
(d) Consumer passbook accounts
In the case of a consumer's passbook account which may not be accessed by electronic fund transfers other than preauthorized electronic fund transfers crediting the account, a financial institution may, in lieu of complying with the requirements of subsection (c) of this section, upon presentation of the passbook provide the consumer in writing with the amount and date of each such transfer involving the account since the passbook was last presented.
(e) Accounts other than passbook accounts
In the case of a consumer's account, other than a passbook account, which may not be accessed by electronic fund transfers other than preauthorized electronic fund transfers crediting the account, the financial institution may provide a periodic statement on a quarterly basis which otherwise complies with the requirements of subsection (c) of this section.
(f) Documentation as evidence
In any action involving a consumer, any documentation required by this section to be given to the consumer which indicates that an electronic fund transfer was made to another person shall be admissible as evidence of such transfer and shall constitute prima facie proof that such transfer was made.
(
Section Referred to in Other Sections
This section is referred to in
§1693e. Preauthorized transfers
(a) A preauthorized electronic fund transfer from a consumer's account may be authorized by the consumer only in writing, and a copy of such authorization shall be provided to the consumer when made. A consumer may stop payment of a preauthorized electronic fund transfer by notifying the financial institution orally or in writing at any time up to three business days preceding the scheduled date of such transfer. The financial institution may require written confirmation to be provided to it within fourteen days of an oral notification if, when the oral notification is made, the consumer is advised of such requirement and the address to which such confirmation should be sent.
(b) In the case of preauthorized transfers from a consumer's account to the same person which may vary in amount, the financial institution or designated payee shall, prior to each transfer, provide reasonable advance notice to the consumer, in accordance with regulations of the Board, of the amount to be transferred and the scheduled date of the transfer.
(
§1693f. Error resolution
(a) Notification to financial institution of error
If a financial institution, within sixty days after having transmitted to a consumer documentation pursuant to
(1) sets forth or otherwise enables the financial institution to identify the name and account number of the consumer;
(2) indicates the consumer's belief that the documentation, or, in the case of notification pursuant to
(3) sets forth the reasons for the consumer's belief (where applicable) that an error has occurred,
the financial institution shall investigate the alleged error, determine whether an error has occurred, and report or mail the results of such investigation and determination to the consumer within ten business days. The financial institution may require written confirmation to be provided to it within ten business days of an oral notification of error if, when the oral notification is made, the consumer is advised of such requirement and the address to which such confirmation should be sent. A financial institution which requires written confirmation in accordance with the previous sentence need not provisionally recredit a consumer's account in accordance with subsection (c) of this section, nor shall the financial institution be liable under subsection (e) of this section if the written confirmation is not received within the ten-day period referred to in the previous sentence.
(b) Correction of error; interest
If the financial institution determines that an error did occur, it shall promptly, but in no event more than one business day after such determination, correct the error, subject to
(c) Provisional recredit of consumer's account
If a financial institution receives notice of an error in the manner and within the time period specified in subsection (a) of this section, it may, in lieu of the requirements of subsections (a) and (b) of this section, within ten business days after receiving such notice provisionally recredit the consumer's account for the amount alleged to be in error, subject to
(d) Absence of error; finding; explanation
If the financial institution determines after its investigation pursuant to subsection (a) or (c) of this section that an error did not occur, it shall deliver or mail to the consumer an explanation of its findings within 3 business days after the conclusion of its investigation, and upon request of the consumer promptly deliver or mail to the consumer reproductions of all documents which the financial institution relied on to conclude that such error did not occur. The financial institution shall include notice of the right to request reproductions with the explanation of its findings.
(e) Treble damages
If in any action under
(1) the financial institution did not provisionally recredit a consumer's account within the ten-day period specified in subsection (c) of this section, and the financial institution (A) did not make a good faith investigation of the alleged error, or (B) did not have a reasonable basis for believing that the consumer's account was not in error; or
(2) the financial institution knowingly and willfully concluded that the consumer's account was not in error when such conclusion could not reasonably have been drawn from the evidence available to the financial institution at the time of its investigation,
then the consumer shall be entitled to treble damages determined under
(f) Acts constituting error
For the purpose of this section, an error consists of—
(1) an unauthorized electronic fund transfer;
(2) an incorrect electronic fund transfer from or to the consumer's account;
(3) the omission from a periodic statement of an electronic fund transfer affecting the consumer's account which should have been included;
(4) a computational error by the financial institution;
(5) the consumer's receipt of an incorrect amount of money from an electronic terminal;
(6) a consumer's request for additional information or clarification concerning an electronic fund transfer or any documentation required by this subchapter; or
(7) any other error described in regulations of the Board.
(
Section Referred to in Other Sections
This section is referred to in
§1693g. Consumer liability
(a) Unauthorized electronic fund transfers; limit
A consumer shall be liable for any unauthorized electronic fund transfer involving the account of such consumer only if the card or other means of access utilized for such transfer was an accepted card or other meanas 1 of access and if the issuer of such card, code, or other means of access has provided a means whereby the user of such card, code, or other means of access can be identified as the person authorized to use it, such as by signature, photograph, or fingerprint or by electronic or mechanical confirmation. In no event, however, shall a consumer's liability for an unauthorized transfer exceed the lesser of—
(1) $50; or
(2) the amount of money or value of property or services obtained in such unauthorized electronic fund transfer prior to the time the financial institution is notified of, or otherwise becomes aware of, circumstances which lead to the reasonable belief that an unauthorized electronic fund transfer involving the consumer's account has been or may be effected. Notice under this paragraph is sufficient when such steps have been taken as may be reasonably required in the ordinary course of business to provide the financial institution with the pertinent information, whether or not any particular officer, employee, or agent of the financial institution does in fact receive such information.
Notwithstanding the foregoing, reimbursement need not be made to the consumer for losses the financial institution establishes would not have occurred but for the failure of the consumer to report within sixty days of transmittal of the statement (or in extenuating circumstances such as extended travel or hospitalization, within a reasonable time under the circumstances) any unauthorized electronic fund transfer or account error which appears on the periodic statement provided to the consumer under
(b) Burden of proof
In any action which involves a consumer's liability for an unauthorized electronic fund transfer, the burden of proof is upon the financial institution to show that the electronic fund transfer was authorized or, if the electronic fund transfer was unauthorized, then the burden of proof is upon the financial institution to establish that the conditions of liability set forth in subsection (a) of this section have been met, and, if the transfer was initiated after the effective date of
(c) Determination of limitation on liability
In the event of a transaction which involves both an unauthorized electronic fund transfer and an extension of credit as defined in
(d) Restriction on liability
Nothing in this section imposes liability upon a consumer for an unauthorized electronic fund transfer in excess of his liability for such a transfer under other applicable law or under any agreement with the consumer's financial institution.
(e) Scope of liability
Except as provided in this section, a consumer incurs no liability from an unauthorized electronic fund transfer.
(
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "means".
§1693h. Liability of financial institutions
(a) Action or failure to act proximately causing damages
Subject to subsections (b) and (c) of this section, a financial institution shall be liable to a consumer for all damages proximately caused by—
(1) the financial institution's failure to make an electronic fund transfer, in accordance with the terms and conditions of an account, in the correct amount or in a timely manner when properly instructed to do so by the consumer, except where—
(A) the consumer's account has insufficient funds;
(B) the funds are subject to legal process or other encumbrance restricting such transfer;
(C) such transfer would exceed an established credit limit;
(D) an electronic terminal has insufficient cash to complete the transaction; or
(E) as otherwise provided in regulations of the Board;
(2) the financial institution's failure to make an electronic fund transfer due to insufficient funds when the financal 1 institution failed to credit, in accordance with the terms and conditions of an account, a deposit of funds to the consumer's account which would have provided sufficient funds to make the transfer, and
(3) the financial institution's failure to stop payment of a preauthorized transfer from a consumer's account when instructed to do so in accordance with the terms and conditions of the account.
(b) Acts of God and technical malfunctions
A financial institution shall not be liable under subsection (a)(1) or (2) of this section if the financial institution shows by a preponderance of the evidence that its action or failure to act resulted from—
(1) an act of God or other circumstance beyond its control, that it exercised reasonable care to prevent such an occurrence, and that it exercised such diligence as the circumstances required; or
(2) a technical malfunction which was known to the consumer at the time he attempted to initiate an electronic fund transfer or, in the case of a preauthorized transfer, at the time such transfer should have occurred.
(c) Intent
In the case of a failure described in subsection (a) of this section which was not intentional and which resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid any such error, the financial institution shall be liable for actual damages proved.
(d) Exception for damaged notices
If the notice required to be posted pursuant to
(
Amendments
1999—Subsec. (d).
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "financial".
§1693i. Issuance of cards or other means of access
(a) Prohibition; proper issuance
No person may issue to a consumer any card, code, or other means of access to such consumer's account for the purpose of initiating an electronic fund transfer other than—
(1) in response to a request or application therefor; or
(2) as a renewal of, or in substitution for, an accepted card, code, or other means of access, whether issued by the initial issuer or a successor.
(b) Exceptions
Notwithstanding the provisions of subsection (a) of this section, a person may distribute to a consumer on an unsolicited basis a card, code, or other means of access for use in initiating an electronic fund transfer from such consumer's account, if—
(1) such card, code, or other means of access is not validated;
(2) such distribution is accompanied by a complete disclosure, in accordance with
(3) such distribution is accompanied by a clear explanation, in accordance with regulations of the Board, that such card, code, or other means of access is not validated and how the consumer may dispose of such code, card, or other means of access if validation is not desired; and
(4) such card, code, or other means of access is validated only in response to a request or application from the consumer, upon verification of the consumer's identity.
(c) Validation
For the purpose of subsection (b) of this section, a card, code, or other means of access is validated when it may be used to initiate an electronic fund transfer.
(
§1693j. Suspension of obligations
If a system malfunction prevents the effectuation of an electronic fund transfer initiated by a consumer to another person, and such other person has agreed to accept payment by such means, the consumer's obligation to the other person shall be suspended until the malfunction is corrected and the electronic fund transfer may be completed, unless such other person has subsequently, by written request, demanded payment by means other than an electronic fund transfer.
(
§1693k. Compulsory use of electronic fund transfers
No person may—
(1) condition the extension of credit to a consumer on such consumer's repayment by means of preauthorized electronic fund transfers; or
(2) require a consumer to establish an account for receipt of electronic fund transfers with a particular financial institution as a condition of employment or receipt of a government benefit.
(
§1693l. Waiver of rights
No writing or other agreement between a consumer and any other person may contain any provision which constitutes a waiver of any right conferred or cause of action created by this subchapter. Nothing in this section prohibits, however, any writing or other agreement which grants to a consumer a more extensive right or remedy or greater protection than contained in this subchapter or a waiver given in settlement of a dispute or action.
(
§1693m. Civil liability
(a) Individual or class action for damages; amount of award
Except as otherwise provided by this section and
(1) any actual damage sustained by such consumer as a result of such failure;
(2)(A) in the case of an individual action, an amount not less than $100 nor greater than $1,000; or
(B) in the case of a class action, such amount as the court may allow, except that (i) as to each member of the class no minimum recovery shall be applicable, and (ii) the total recovery under this subparagraph in any class action or series of class actions arising out of the same failure to comply by the same person shall not be more than the lesser of $500,000 or 1 per centum of the net worth of the defendant; and
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court.
(b) Factors determining amount of award
In determining the amount of liability in any action under subsection (a) of this section, the court shall consider, among other relevant factors—
(1) in any individual action under subsection (a)(2)(A) of this section, the frequency and persistence of noncompliance, the nature of such noncompliance, and the extent to which the noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(B) of this section, the frequency and persistence of noncompliance, the nature of such noncompliance, the resources of the defendant, the number of persons adversely affected, and the extent to which the noncompliance was intentional.
(c) Unintentional violations; bona fide error
Except as provided in
(d) Good faith compliance with rule, regulation, or interpretation of Board or approval of duly authorized official or employee of Federal Reserve System
No provision of this section or
(1) any act done or omitted in good faith in conformity with any rule, regulation, or interpretation thereof by the Board or in conformity with any interpretation or approval by an official or employee of the Federal Reserve System duly authorized by the Board to issue such interpretations or approvals under such procedures as the Board may prescribe therefor; or
(2) any failure to make disclosure in proper form if a financial institution utilized an appropriate model clause issued by the Board,
notwithstanding that after such act, omission, or failure has occurred, such rule, regulation, approval, or model clause is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
(e) Notification to consumer prior to action; adjustment of consumer's account
A person has no liability under this section for any failure to comply with any requirement under this subchapter if, prior to the institution of an action under this section, the person notifies the consumer concerned of the failure, complies with the requirements of this subchapter, and makes an appropriate adjustment to the consumer's account and pays actual damages or, where applicable, damages in accordance with
(f) Action in bad faith or for harassment; attorney's fees
On a finding by the court that an unsuccessful action under this section was brought in bad faith or for purposes of harassment, the court shall award to the defendant attorney's fees reasonable in relation to the work expended and costs.
(g) Jurisdiction of courts; time for maintenance of action
Without regard to the amount in controversy, any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.
(
Section Referred to in Other Sections
This section is referred to in
§1693n. Criminal liability
(a) Violations respecting giving of false or inaccurate information, failure to provide information, and failure to comply with provisions of this subchapter
Whoever knowingly and willfully—
(1) gives false or inaccurate information or fails to provide information which he is required to disclose by this subchapter or any regulation issued thereunder; or
(2) otherwise fails to comply with any provision of this subchapter;
shall be fined not more than $5,000 or imprisoned not more than one year, or both.
(b) Violations affecting interstate or foreign commerce
Whoever—
(1) knowingly, in a transaction affecting interstate or foreign commerce, uses or attempts or conspires to use any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained debit instrument to obtain money, goods, services, or anything else of value which within any one-year period has a value aggregating $1,000 or more; or
(2) with unlawful or fraudulent intent, transports or attempts or conspires to transport in interstate or foreign commerce a counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained debit instrument knowing the same to be counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained; or
(3) with unlawful or fraudulent intent, uses any instrumentality of interstate or foreign commerce to sell or transport a counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained debit instrument knowing the same to be counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained; or
(4) knowingly receives, conceals, uses, or transports money, goods, services, or anything else of value (except tickets for interstate or foreign transportation) which (A) within any one-year period has a value aggregating $1,000 or more, (B) has moved in or is part of, or which constitutes interstate or foreign commerce, and (C) has been obtained with a counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained debit instrument; or
(5) knowingly receives, conceals, uses, sells, or transports in interstate or foreign commerce one or more tickets for interstate or foreign transportation, which (A) within any one-year period have a value aggregating $500 or more, and (B) have been purchased or obtained with one or more counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained debit instrument; or
(6) in a transaction affecting interstate or foreign commerce, furnishes money, property, services, or anything else of value, which within any one-year period has a value aggregating $1,000 or more, through the use of any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained debit instrument knowing the same to be counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained—
shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
(c) "Debit instrument" defined
As used in this section, the term "debit instrument" means a card, code, or other device, other than a check, draft, or similar paper instrument, by the use of which a person may initiate an electronic fund transfer.
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Section Referred to in Other Sections
This section is referred to in
§1693o. Administrative enforcement
(a) Enforcing agencies
Compliance with the requirements imposed under this subchapter shall be enforced under—
(1) section 8 of the Federal Deposit Insurance Act [
(A) national banks, and Federal branches and Federal agencies of foreign banks, by the Office of the Comptroller of the Currency;
(B) member banks of the Federal Reserve System (other than national banks), branches and agencies of foreign banks (other than Federal branches, Federal agencies, and insured State branches of foreign banks), commercial lending companies owned or controlled by foreign banks, and organizations operating under section 25 or 25(a) 1 of the Federal Reserve Act [
(C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System) and insured State branches of foreign banks, by the Board of Directors of the Federal Deposit Insurance Corporation;
(2) section 8 of the Federal Deposit Insurance Act [
(3) the Federal Credit Union Act [
(4) part A of subtitle VII of title 49, by the Secretary of Transportation, with respect to any air carrier or foreign air carrier subject to that part; and
(5) the Securities Exchange Act of 1934 [
The terms used in paragraph (1) that are not defined in this subchapter or otherwise defined in section 3(s) of the Federal Deposit Insurance Act (
(b) Violations of subchapter deemed violations of pre-existing statutory requirements; additional powers
For the purpose of the exercise by any agency referred to in subsection (a) of this section of its powers under any Act referred to in that subsection, a violation of any requirement imposed under this subchapter shall be deemed to be a violation of a requirement imposed under that Act. In addition to its powers under any provision of law specifically referred to in subsection (a) of this section, each of the agencies referred to in that subsection may exercise, for the purpose of enforcing compliance with any requirement imposed under this subchapter, any other authority conferred on it by law.
(c) Overall enforcement authority of Federal Trade Commission
Except to the extent that enforcement of the requirements imposed under this subchapter is specifically committed to some other Government agency under subsection (a) of this section, the Federal Trade Commission shall enforce such requirements. For the purpose of the exercise by the Federal Trade Commission of its functions and powers under the Federal Trade Commission Act [
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References in Text
Section 25(a) of the Federal Reserve Act, referred to in subsec. (a)(1)(B), which is classified to subchapter II (§611 et seq.) of
The Federal Credit Union Act, referred to in subsec. (a)(3), is act June 26, 1934, ch. 750,
The Securities Exchange Act of 1934, referred to in subsec. (a)(5), is act June 6, 1934, ch. 404,
The Federal Trade Commission Act, referred to in subsec. (c), is act Sept. 26, 1914, ch. 311,
Codification
In subsec. (a)(4), "part A of subtitle VII of title 49" substituted for "the Federal Aviation Act of 1958 [49 App. U.S.C. 1301 et seq.]" and "that part" substituted for "that Act" on authority of
Amendments
1996—Subsec. (a)(4).
1991—Subsec. (a).
"(A) national banks, by the Comptroller of the Currency;
"(B) member banks of the Federal Reserve System (other than national banks), by the Board;
"(C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System), by the Board of Directors of the Federal Deposit Insurance Corporation;".
1989—Subsec. (a)(2).
Transfer of Functions
Functions vested in Administrator of National Credit Union Administration transferred and vested in National Credit Union Administration Board pursuant to
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
2 So in original. The period probably should be a semicolon.
§1693p. Reports to Congress
(a) Not later than twelve months after the effective date of this subchapter and at one-year intervals thereafter, the Board shall make reports to the Congress concerning the administration of its functions under this subchapter, including such recommendations as the Board deems necessary and appropriate. In addition, each report of the Board shall include its assessment of the extent to which compliance with this subchapter is being achieved, and a summary of the enforcement actions taken under
(b) In the exercise of its functions under this subchapter, the Board may obtain upon request the views of any other Federal agency which, in the judgment of the Board, exercises regulatory or supervisory functions with respect to any class of persons subject to this subchapter.
(
References in Text
For effective date of this subchapter, referred to in subsec. (a), see section 921 of
Amendments
1982—Subsec. (a).
§1693q. Relation to State laws
This subchapter does not annul, alter, or affect the laws of any State relating to electronic fund transfers, except to the extent that those laws are inconsistent with the provisions of this subchapter, and then only to the extent of the inconsistency. A State law is not inconsistent with this subchapter if the protection such law affords any consumer is greater than the protection afforded by this subchapter. The Board shall, upon its own motion or upon the request of any financial institution, State, or other interested party, submitted in accordance with procedures prescribed in regulations of the Board, determine whether a State requirement is inconsistent or affords greater protection. If the Board determines that a State requirement is inconsistent, financial institutions shall incur no liability under the law of that State for a good faith failure to comply with that law, notwithstanding that such determination is subsequently amended, rescinded, or determined by judicial or other authority to be invalid for any reason. This subchapter does not extend the applicability of any such law to any class of persons or transactions to which it would not otherwise apply.
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§1693r. Exemption for State regulation
The Board shall by regulation exempt from the requirements of this subchapter any class of electronic fund transfers within any State if the Board determines that under the law of that State that class of electronic fund transfers is subject to requirements substantially similar to those imposed by this subchapter, and that there is adequate provision for enforcement.
(