§ 14A-5-203. Civil liability for violation of disclosure provisions.

(1)  Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed by the provisions on disclosure (Part 3), other than the provisions on advertising pursuant to Sections 2-313 of Article 2 of this title and 3-312 of Article 3 of this title, or with any requirement imposed by the provision on the right to rescind pursuant to Section 5-204 of this title, with respect to any person is liable to that person in an amount equal to the sum of:

(a)any actual damage sustained by that person as a result of the failure;

(b)(i)(aa)              in the case of an individual action twice the amount of the credit service or loan finance charge in connection with the transaction,

(bb)              in the case of an individual action relating to a consumer lease twenty-five percent (25%) of the total amount of monthly payments under the lease but the liability pursuant to this division shall be not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00),

(cc)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 Four Hundred Dollars ($400.00) or greater than Four Thousand Dollars ($4,000.00), or

(dd)              in the case of an individual action relating to an open-end consumer credit plan that is not secured by real property or a dwelling, twice the amount of any finance charge in connection with the transaction, with a minimum of Five Hundred Dollars ($500.00) and a maximum of Five Thousand Dollars ($5,000.00), or such higher amount as may be appropriate in the case of an established pattern or practice of such failures; or

(ii)              in the case of a class action, an amount the court may allow, except that as to each member of the class no minimum recovery shall be applicable and the total recovery other than for actual damages 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 Five Hundred Thousand Dollars ($500,000.00) or one percent (1%) of the net worth of the creditor;

(c)in the case of a successful action to enforce the liability under paragraph (b) of this subsection or in any action in which a person is determined to have a right of rescission under Section 11 of this act and Section 5-204 of this title, the costs of the action together with reasonable attorney fees as determined by the court.  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 required by Sections 2-310 and 3-309 of this title, a creditor shall have a liability determined under paragraph (b) of this subsection only for failing to comply with the requirements of Section 5-204 of this title, subsection (1) of Section 2-310 and subsection (1) of Section 3-309 of this title, paragraphs (d) through (k) of subsection (2) of Section 2-310 of this title, and paragraphs (d) through (m) of subsection (2) and subsections (3) and (4) of Section 3-309 of this title.  In connection with the disclosures referred to in subsections (1) through (7) of Sections 2-310.1 and 3-309.1 of this title, a card issuer shall have a liability under this section only to a cardholder who pays a fee described in paragraph (d) of subsection (1) or subparagraph (i) of paragraph (a) of subsection (5) of Section 2-310.1, or paragraph (d) of subsection (1) or subparagraph (i) of paragraph (a) of subsection (5) of Section 3-309.1 of this title or who uses the credit card or charge card.  In connection with disclosures for closed-end credit, a creditor shall have a liability determined under paragraph (b) of this subsection only for failing to comply with the requirements of Section 5-204 of this title, paragraphs (b) insofar as it requires a disclosure of the amount financed, through (f) and paragraph (j) of subsection (2) of Section 2-306 of this title, and paragraphs (b) insofar as it requires a disclosure of the amount financed, through (f) and paragraph (h) of subsection (2) of Section 3-306 of this title, subsections (2) and (3) of Section 3-310 of this title, and paragraph (a), (b), (d), (f), or (j) of subsection (2) of Section 11 of this act (for purposes of subsection (2) or (4), paragraph (c) of subsection (4) and subsection (6), (7), or (8) of Section 11 of this act).  With respect to any failure to make disclosure, liability shall be imposed only upon the creditor required to make disclosure, except as provided in subsection (3) of Section 2-302 of this title, subsection (3) of Section 3-302 of this title and otherwise in this section; and

(d)in the case of a failure to comply with any requirement under Section 3-309.4 of this title, an amount equal to the sum of all finance charges and fees paid by the consumer, unless the creditor demonstrates that the failure to comply is not material.

(2)  A creditor or assignee has no liability under this section, Section 5-302 of this title or Article 6 of this title in relation to disclosure if within sixty (60) days after discovering an error whether pursuant to a final written examination report or notice issued under subsection (4) of Section 6-105 of this title or through the creditor's or assignee's own procedures, and prior to the institution of an action under this section or the receipt of written notice of the error from the obligor, the creditor or assignee notifies the person concerned of the error and makes whatever adjustments in the appropriate account are necessary to assure that the person will not be required to pay a credit service charge or loan finance charge in excess of the amount actually disclosed or the dollar equivalent of the percentage rate actually disclosed, whichever is lower.

(3)  A creditor or assignee may not be held liable in any action brought under this section or Section 5-204 of this title for a violation of this title if the creditor or assignee 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 the error.  A bona fide error includes, but is not limited to, a clerical, calculation, computer malfunction and programming, and printing error, but not an error of legal judgment with respect to a person's disclosure obligations under this title.

(4)(a)              Except as otherwise specifically provided in this section, any civil action for a violation of this section or administrative proceeding for restitution which may be brought against the original creditor in any transaction may be maintained against any subsequent assignee of the original creditor in any transaction where the violation from which the alleged liability arose is apparent on the face of the disclosure statement unless the assignment was involuntary.  For the purpose of this section, a violation apparent on the face of the disclosure statement includes, but is not limited to, a disclosure which can be determined to be incomplete or inaccurate from the face of the disclosure statement or other documents assigned or a disclosure which does not use the terms required to be used by this title.

(b)(i)              Except as otherwise specifically provided in this title, any civil action against a creditor for a violation of this title, and any administrative proceeding against a creditor, with respect to a consumer credit transaction secured by real property may be maintained against any assignee of such creditor only if:

(aa)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 title; and

(bb)the assignment to the assignee was voluntary.

(ii)For the purpose of this section, a violation is apparent on the face of the disclosure statement if:

(aa)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

(bb)the disclosure statement does not use the terms or format required to be used by this title.

(5)  Any person who has the right to rescind a transaction under Section 5-204 of this title may rescind the transaction as against any assignee of the obligation.

(6)  No action pursuant to this section may be brought more than one (1) year after the date of the occurrence of the violation or in the case of a private education loan, as the term is defined in Section 8 of this act, one (1) year from the date on which the first regular payment of principal is due under the loan.

(7)(a)              In this section, "creditor" includes sellers, lessors, lenders, persons who regularly offer to lease or arrange to lease under consumer leases and any other person required to make disclosures under Part 3 of either Article 2 or Article 3 of this title.

(b)(i)              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.

(ii)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.

(iii)For purposes of this subsection, the term "servicer" has the same meaning as in Section 6(i)(2) of the Real Estate Settlement Procedures Act of 1974.

(iv)This subsection shall apply to all consumer credit transactions in existence or consummated on or after September 30, 1995.

(8)  Where there are multiple obligors in a consumer credit transaction or consumer lease, there shall be no more than one recovery under paragraph (b) of subsection (1) of this section for a violation of this title.

(9)  The multiple failure to disclose to any person any information required under this title 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 Section 5-204 of this title.

(10)  A person may not take any action to offset any amount for which a creditor or assignee is potentially liable to that person under paragraph b of subsection (1) of this section against any amount owed by that person unless the amount of the creditor's or assignee's liability has been determined by judgment of a court of competent jurisdiction in an action to which the person was a party.  This subsection does not bar a person then in default on the obligation from asserting a violation of disclosure requirements as an original action or as a defense or counterclaim to an action to collect amounts owed by the person brought by another person liable under this title if the claim is not time barred, or as a setoff or defense in accordance with Section 5-205 of this title.

(11)(a)              Any person who purchases or is otherwise assigned a mortgage referred to in subsection (10) of Section 1-301 of this title shall be subject to all claims and defenses with respect to that mortgage that the consumer could assert against the creditor of the mortgage, unless the purchaser or assignee demonstrates, by a preponderance of the evidence, that a reasonable person exercising ordinary due diligence, could not determine, based on the documentation required by this title, the itemization of the amount financed, and other disclosure of disbursements that the mortgage was a mortgage referred to in subsection (10) of Section 1-301 of this title.  The preceding sentence does not affect rights of a consumer under paragraph (a) of subsection (4) or subsection (5) of this section or any other provision of this title.

(b)Notwithstanding any other provision of law, relief provided as a result of any action made permissible by paragraph (a) of this subsection may not exceed:

(i)with respect to actions based upon a violation of this title, the amount specified in subsection (1) of this section; and

(ii)with respect to all other causes of action, the sum of:

(aa)the amount of all remaining indebtedness; and

(bb)the total amount paid by the consumer in connection with the transaction.

(c)The amount of damages that may be awarded under subparagraph (ii) of paragraph (b) of this subsection shall be reduced by the amount of any damages awarded under subparagraph (i) of paragraph (b) of this subsection.

(d)Any person who sells or otherwise assigns a mortgage referred to in subsection (10) of Section 1-301 of this title shall include a prominent notice of the potential liability under this subsection as determined by the Administrator.

(12)  A private educational lender, as the term is defined in Section 8 of this act, has no liability under this section for failure to comply with subsection (3) of Section 11 of this act.

Added by Laws 1969, c. 352, § 5-203, eff. July 1, 1969.  Amended by Laws 1970, c. 282, § 10; Laws 1976, c. 263, § 5, emerg. eff. June 17, 1976; Laws 1982, c. 335, § 52, operative Oct. 1, 1982; Laws 1990, c. 260, § 29, operative July 1, 1990; Laws 2000, c. 217, § 19, eff. July 1, 2000; Laws 2003, c. 330, § 14, eff. Jan. 1, 2004; Laws 2012, c. 172, § 6, eff. July 1, 2012; Laws 2013, c. 99, § 6, eff. July 1, 2013.