§ 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 section
1635 of this title, subsection (f) or (g) of section
1641 of this title, or part D or E of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
(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,
(iii)
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 $500 and a maximum of $5,000, or such higher amount as may be appropriate in the case of an established pattern or practice of such failures; [1] 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 section
1635 or
1638
(e)(7) of this title, the costs of the action, together with a reasonable attorney’s fee as determined by the court; and
(4)
in the case of a failure to comply with any requirement under section
1639 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.
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 section
1637 of this title, a creditor shall have a liability determined under paragraph (2) only for failing to comply with the requirements of section
1635 of this title, 1637(a) [2] of this title, or any of paragraphs (4) through (13) of section
1637
(b) of this title, or for failing to comply with disclosure requirements under State law for any term or item that the Board has determined to be substantially the same in meaning under section
1610
(a)(2) of this title as any of the terms or items referred to in section
1637
(a) of this title, or any of paragraphs (4) through (13) of section
1637
(b) of this title. In connection with the disclosures referred to in subsection (c) or (d) of section
1637 of this title, a card issuer shall have a liability under this section only to a cardholder who pays a fee described in section
1637
(c)(1)(A)(ii)(I) or section
1637
(c)(4)(A)(i) of this title or who uses the credit card or charge card. In connection with the disclosures referred to in section
1638 of this title, a creditor shall have a liability determined under paragraph (2) only for failing to comply with the requirements of section
1635 of this title, of paragraph (2) (insofar as it requires a disclosure of the “amount financed”), (3), (4), (5), (6), or (9) of section
1638
(a) of this title, or section
1638
(b)(2)(C)(ii) of this title, of subparagraphs (A), (B), (D), (F), or (J) of section
1638
(e)(2) of this title (for purposes of paragraph (2) or (4) of section
1638
(e) of this title), or paragraph (4)(C), (6), (7), or (8) of section
1638
(e) of this title, or for failing to comply with disclosure requirements under State law for any term which the Board has determined to be substantially the same in meaning under section
1610
(a)(2) of this title as any of the terms referred to in any of those paragraphs of section
1638
(a) of this title or section
1638
(b)(2)(C)(ii) of this title. With respect to any failure to make disclosures required under this part or part D or E of this subchapter, liability shall be imposed only upon the creditor required to make disclosure, except as provided in section
1641 of this title.
(b)
Correction of errors
A creditor or assignee has no liability under this section or section
1607 of this title or section
1611 of this title for any failure to comply with any requirement imposed under this part or part E of this subchapter, if within sixty days after discovering an error, whether pursuant to a final written examination report or notice issued under section
1607
(e)(1) 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 an amount in excess of the charge actually disclosed, or the dollar equivalent of the annual percentage rate actually disclosed, whichever is lower.
(c)
Unintentional violations; bona fide errors
A creditor or assignee may not be held liable in any action brought under this section or section
1635 of this title for a violation of this subchapter 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 any such error. Examples of a bona fide error include, but are not limited to, clerical, calculation, computer malfunction and programing, and printing errors, except that an error of legal judgment with respect to a person’s obligations under this subchapter is not a bona fide error.
(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 or, in the case of a violation involving a private education loan (as that term is defined in section
1650
(a) of this title), 1 year from the date on which the first regular payment of principal is due under the loan. 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 section
1639 of this title may also be brought by the appropriate State attorney general in any appropriate United States district court, or any other court of competent jurisdiction, not later than 3 years after the date on which the violation occurs. The State attorney general shall provide prior written notice of any such civil action to the Federal agency responsible for enforcement under section
1607 of this title and shall provide the agency with a copy of the complaint. If prior notice is not feasible, the State attorney general shall provide notice to such agency immediately upon instituting the action. The Federal agency may—
(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, section
1607
(b) of this title, section
1607
(c) of this title, section
1607
(e) of this title, or section
1611 of this title imposing any liability shall apply to 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, 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.
(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 section
1635 of this title.
(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 section
1638 of this title;
(ii)
to properly make any other disclosure required under section
1638 of this title as a result of the failure described in clause (i); or
(2)
Exceptions for certain alleged violations
Paragraph (1) shall not apply with respect to any action—
[1] So in original. The semicolon probably should be a comma.
[2] So in original. Probably should be preceded by “section”.
[3] So in original. The closing parenthesis probably should not appear.