§ 14A-6-105. Administrative enforcement powers with respect to supervised financial institutions.

(1)  With respect to supervised financial organizations, the powers of examination and investigation under Sections 3-506 and 6-106 of this title and administrative enforcement under Section 6-108 of this title shall be exercised by the official or agency to whose supervision the organization is subject.  All other powers of the Administrator under this title may be exercised by the Administrator with respect to a supervised financial organization.

(2)  If the Administrator receives a complaint or other information concerning noncompliance with this title by a supervised financial organization, the Administrator shall inform the official or agency having supervisory authority over the organization concerned.  The Administrator may request information about supervised financial organizations from the officials or agencies supervising them.

(3)  The Administrator and any official or agency of this state having supervisory authority over a supervised financial organization are authorized and directed to consult and assist one another in maintaining compliance with this title.  They may jointly pursue investigations, prosecute suits, and take other official action, as they deem appropriate, if either of them is otherwise empowered to take the action.

(4)(a)In carrying out their enforcement activities each agency having administrative responsibility with respect to persons subject to this title, including the Administrator, in cases where an annual percentage rate or finance charge was inaccurately disclosed, shall notify the creditor of such disclosure error and are 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:

(i)each agency shall apply:

(aa)              with respect to the annual percentage rate, a tolerance of one-quarter of one percent (1/4 of 1%) more or less than the actual rate, determined without regard to tolerance rules for other purposes, and

(bb)              with respect to the finance charge, a corresponding numerical tolerance as generated by the tolerance provided under this subsection for the annual percentage rate; except that:

(ii)with respect to transactions consummated after two (2) years following March 31, 1980, each agency shall apply:

(aa)              for transactions that have a scheduled amortization of ten (10) years or less, with respect to the annual percentage rate, a tolerance not to exceed one-quarter of one percent (1/4 of 1%) more or less than the actual rate, determined without regard to tolerance rules for other purposes, but in no event a tolerance of less than the tolerances allowed for other purposes,

(bb)              for transactions that have a scheduled amortization of more than ten (10) years, with respect to the annual percentage rate, only such tolerances as are allowed for other purposes, and

(cc)              for all transactions, with respect to the finance charge, a corresponding numerical tolerance as generated by the tolerances provided under this subsection for the annual percentage rate.

(iii)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:

(aa)              shall be treated as being accurate for purposes of this title if the amount disclosed as the finance charge:

(I)              does not vary from the actual finance charge by more than One Hundred Dollars ($100.00), or

(II)              is greater than the amount required to be disclosed under this title, and

(bb)              shall be treated as being accurate for purposes of Section 5-204 of this title if:

(I)              except as provided in subparagraph (ii) of this paragraph, 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 (1/2 of 1%) of the total amount of credit extended, or

(II)              in the case of a transaction, other than a subsection 10 mortgage referred to in subsection (10) of Section 1-301 of this title, which:

(A)              is a refinancing of the principal balance then due and any accrued and unpaid finance charges of a residential mortgage transaction as defined in subsection (17) of Section 1-301 of this title, or is any subsequent refinancing of such a transaction, and

(B)              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 (1%) of the total amount of credit extended.

(b)              Each agency shall require such an adjustment when it determines that such disclosure error resulted from:

(i)              a clear and consistent pattern or practice of violations,

(ii)              gross negligence, or

(iii)              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:

(aa)              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 concerning consumer credit insurance, property and liability insurance, and official fees, in which event the agency may require such remedial action as it determines to be equitable, except that for transactions consummated after two (2) years following March 31, 1980, such an adjustment shall be ordered for violations of disclosure of consumer credit insurance,

(bb)              involved a disclosed amount which was ten percent (10%) or less of the amount that should have been disclosed and in cases where the error involved a disclosed finance charge, the annual percentage rate was disclosed correctly, and 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,

(cc)              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

(dd)              resulted from any other unique circumstance involving clearly technical and nonsubstantive disclosure violations that do not adversely affect information provided to the buyer, debtor or lessee and that have not misled or otherwise deceived the buyer, debtor or lessee.

In the case of other such disclosure errors, each agency may require such an adjustment.

(c)              Notwithstanding the provisions of paragraph (b) of this subsection, no adjustment shall be ordered:

(i)              if it would have a significantly adverse impact upon the safety or soundness of the creditor, but in any such case, the agency may require a partial adjustment in an amount which does not have such an impact except that with respect to any transaction consummated after March 1, 1980, the agency shall 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,

(ii)              if the amount of the adjustment would be less than One Dollar ($1.00), except that if more than one (1) year has elapsed since the date of the violation, the agency may require that such amount be paid to the Administrator, or

(iii)              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 (2) years after the violation, or in the case of any other extension of credit, as follows:

(aa)              with respect to creditors that are subject to examination by the agencies referred to in 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 the examination in which such practices were first identified,

(bb)              with respect to creditors that are not subject to examination, except in connection with transactions that are consummated after May 10, 1978, and

(cc)              in no event after the later of the expiration of the life of the credit extension, or two (2) years after the agreement to extend credit was consummated.

(d)              Notwithstanding any other provision of this subsection, an adjustment under this subsection may be required by an agency only by an order issued in accordance with cease and desist procedures either as prescribed in a statute governing that agency or in Section 6-108 of this title.

(e)              Except as otherwise specifically provided in this subsection, no agency may require a creditor to make dollar adjustments for disclosure errors in any requirements under this title.

(f)              A creditor shall not be subject to an order to make an adjustment, if within sixty (60) 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.

(g)              Notwithstanding the second sentence of paragraph (a) of this subsection and divisions (aa) and (bb) of subparagraph (iii) of paragraph (c) of this subsection, each agency shall require an adjustment for an annual percentage rate disclosure error that exceeds a tolerance of one-quarter of one percent (1/4 of 1%) less than the actual rate, determined without regard to tolerance rules for other purposes, except in the case of an irregular mortgage lending transaction, with respect to any transaction consummated between January 1, 1977, and April 1, 1980.

(h)              The Administrator may prescribe guidelines and interpretations to govern agency action under this subsection.

Added by Laws 1969, c. 352, § 6-105, eff. July 1, 1969.  Amended by Laws 1982, c. 335, § 56, operative Oct. 1, 1982; Laws 2000, c. 217, § 23, eff. July 1, 2000.