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Substitute Senate Bill No. 313

PUBLIC ACT NO. 96-40

AN ACT CONCERNING CONFORMING AMENDMENTS TO THE TRUTH-IN-LENDING ACT.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 36a-683 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) Except as otherwise provided in this section, any creditor who fails to comply with any requirement of sections [36a-665 to] 36a-675 TO [4m36a-685 [0m, inclusive, AS AMENDED BY THIS ACT including Section 125 of the Consumer Credit Protection Act (15 USC 1635), or of section 36a-771 or 36a-774, with respect to any person is liable to that person in an amount equal to the sum of (1) any actual damage sustained by such person as a result of the failure; (2) (A) (i) in the case of an individual action OTHER THAN AS PROVIDED IN THIS SUBPARAGRAPH (A)(ii) AND (iii) 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 Chapter 5 of the Consumer Credit Protection Act (15 USC Sections 1667 to 1667E, inclusive) twenty-five per cent of the total amount of monthly payments under the lease, except that the liability under this subparagraph OR shall not be less than one hundred dollars nor greater than one thousand dollars OR (iii) IN THE CASE OF AN INDIVIDUAL ACTION RELATED TO A CREDIT TRANSACTION NOT UNDER AN OPEN END CREDIT PLAN THAT IS SECURED BY REAL PROPERTY OR A DWELLING, NOT LESS THAN TWO HUNDRED DOLLARS NOR MORE THAN TWO THOUSAND DOLLARS; (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 five hundred thousand dollars or one per cent of the net worth of the creditor; and (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 125 of the Consumer Credit Protection Act (15 USC 1635), the costs of the action, together with a reasonable attorney's fee 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 referred to in Section 127 of the Consumer Credit Protection Act (15 USC 1637) a creditor shall have a liability determined under subdivision (2) of this subsection only for failing to comply with the requirements of Section 125 or 127(a) of said act (15 USC 1635) or (15 USC 1637(a)) or of paragraph (4), (5), (6), (7), (8), (9) or (10) of Section 127(b) of said act (15 USC 1637(b)). In connection with the disclosures referred to in Section 128 of said act (15 USC 1638) a creditor shall have a liability determined under subdivision (2) of this subsection only for failing to comply with the requirements of Section 125 of said act (15 USC 1635) or of paragraph (2), insofar as it requires a disclosure of the "amount financed", or paragraph (3), (4), (5), (6) or (9) of Section 128 (a) of said act (15 USC 1638(a)). With respect to any failure to make disclosures required under Chapter 2, 4 or 5 of said act, liability shall be imposed only upon the creditor required to make disclosure, except as provided in Section 131 of said act (15 USC 1641).

(b) A creditor or assignee has no liability under this section or section 36a-681 or 36a-684 for any failure to comply with any requirement imposed under sections [36a-665 to] 36a-675 TO 36a-685, inclusive, AS AMENDED BY THIS ACT if within sixty days after discovering an error, whether pursuant to a final written examination report or notice issued under subsection [(g)] (d) of section 36a-684, 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 insure 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) A creditor or assignee may not be held liable in any action brought under this section for a violation of sections [36a-665 to] 36a-675 TO 36a-685, inclusive, AS AMENDED BY THIS ACT 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 programming, and printing errors, except that an error of legal judgment with respect to a person's obligations under said sections is not a bona fide error.

(d) When there are multiple obligors in a consumer credit transaction or consumer lease, there shall be no more than one recovery of damages under subdivision (2) of subsection (a) of this section for a violation of sections [36a-665 to] 36a-675 TO 36a-685, inclusive AS AMENDED BY THIS ACT.

(e) Any action under this section shall be brought in any 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 sections [36a-665 to] 36a-675 TO 36a-685, inclusive, AS AMENDED BY THIS ACT 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.

(f) No provision of this section, subsection [(g)] (d) of section 36a-684 or section 36a-681 imposing any liability shall apply to any act done or omitted in good faith in conformity with any provision of sections [36a-665 to] 36a-675 TO 36a-685 inclusive, AS AMENDED BY THIS ACT or with any rule, regulation, approval, or formal interpretation thereof by the commissioner, or in conformity with the Consumer Credit Protection Act (15 USC 1601 et seq.), including any rule or regulation adopted by the Federal Reserve Board pursuant to said act, or in conformity with any interpretation of said act by the Federal Reserve Board or in conformity with any interpretation or approval by an official or employee of the Federal Reserve System duly authorized by the Federal Reserve Board to issue such interpretations or approvals under such procedures as said board may prescribe therefor, notwithstanding that after such act or omission has occurred, such statute, rule, regulation, approval or interpretation is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.

(g) The multiple failure to disclose to any person any information required under sections [36a-665 to] 36a-675 TO 36a-685, inclusive, AS AMENDED BY THIS ACT, to be disclosed in connection with a single account under an open-end consumer credit plan, other single consumer credit sale, consumer loan, other extension of consumer credit or consumer lease, 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 subsection (j) of this section.

(h) A person may not take any action to offset any amount for which a creditor or assignee is potentially liable to such person under subdivision (2) of subsection (a) of this section against any amount owed by such person, unless the amount of the creditor's or assignee's liability under sections [36a-665 to] 36a-675 TO 36a-685, inclusive, AS AMENDED BY THIS ACT has been determined by judgment of a court of competent jurisdiction in an action to which such person was a party. This subsection does not bar a consumer then in default on the obligation from asserting a violation of said sections 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 said sections.

(i) Notwithstanding any other provision of sections [36a-665 to] 36a-675 TO 36a-685, inclusive, AS AMENDED BY THIS ACT, (1) no person shall be entitled in any action to a recovery under this section for the failure to disclose any information required under said sections if a recovery is awarded in the same action under Section 130 of the Consumer Credit Protection Act (15 USC 1640) for the failure to disclose any information required under said sections; and (2) no person shall be entitled in any action brought under this section to a recovery if, prior to an award in any such action, a recovery has been awarded to such person in any action brought under Section 130 of the Consumer Credit Protection Act (15 USC 1640) in which the same act or omission was the basis of that action.

(j) (1) When an obligor exercises his right to rescind under Section 125 of the Consumer Credit Protection Act (15 USC 1635), 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 twenty days after receipt of a notice of rescission, the creditor shall return to the obligor 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 subsection and Section 125 of the Consumer Credit Protection Act (15 USC 1635), 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 twenty 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 described by this subdivision shall apply except when otherwise ordered by a court. (2) Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under sections [36a-665 to] 36a-675 TO36a-685, inclusive, AS AMENDED BY THIS ACT by a person to whom information, forms and a statement is required to be given pursuant to this subsection and Section 125 of the Consumer Credit Protection Act (15 USC 1635), does no more than create a rebuttable presumption of delivery thereof. (3) 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 earlier, notwithstanding the fact that the information and forms required under this section and Section 125 of the Consumer Credit Protection Act (15 USC 1635), or any other disclosures required under sections [36a-665 to] 36a-675 TO 36a-685, inclusive, AS AMENDED BY THIS ACT have not been delivered to the obligor, except that if (A) the commissioner institutes a proceeding to enforce the provisions of this section, or Section 125 of the Consumer Credit Protection Act (15 USC 1635), made a part of said sections as provided in section 36a-678, within three years after the date of consummation of the transaction, (B) the commissioner finds a violation of this subsection or Section 125 of the Consumer Credit Protection Act (15 USC 1635), and (C) 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. (4) (A) In any credit transaction in which an obligor has the right to rescind under Section 125 of the Consumer Credit Protection Act (15 USC 1635), and the obligor does not exercise that right, a finance charge may not begin to accrue in connection with such transaction, until after midnight of the third business day following the consummation of the transaction. (B) Any obligor required to pay a finance charge, in violation of the provisions of this subdivision, may recover from the creditor twice the amount of such finance charge, costs and reasonable attorney's fees. (5) In any action in which it is determined that a creditor has violated subdivision (1), (2) or (3) of this subsection, in addition to rescission the court may award relief under other subsections of this section for violations of sections [36a-665 to] 36a-675 TO 36a-685, inclusive, AS AMENDED BY THIS ACT not relating to the right to rescind. (6) 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 SUBSECTION AND SECTION 125 OF THE CONSUMER CREDIT PROTECTION ACT (15 USC 1635), IF THE CREDITOR PROVIDED THE OBLIGOR THE APPROPRIATE FORM OF WRITTEN NOTICE PUBLISHED AND ADOPTED BY THE FEDERAL RESERVE 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 SUBSECTION AND SECTION 125 OF THE CONSUMER CREDIT PROTECTION ACT (15 USC 1635) REGARDING NOTICE. (7) NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (n) OF THIS SECTION, AND SUBJECT TO THE TIME PERIOD PROVIDED IN SUBDIVISION (3) OF THIS SUBSECTION, AN OBLIGOR SHALL HAVE THE RESCISSION RIGHTS IN FORECLOSURE SET FORTH IN SUBSECTION (i) OF SECTION 125 OF THE CONSUMER CREDIT PROTECTION ACT (15 USC 1635(i)). THIS SUBDIVISION SHALL APPLY TO ALL CONSUMER CREDIT TRANSACTIONS IN EXISTENCE OR CONSUMMATED ON OR AFTER SEPTEMBER 30, 1995.

(k) (1) Except as otherwise specifically provided in sections [36a-665 to] 36a-675 TO 36a-685, inclusive, AS AMENDED BY THIS ACT any civil action for a violation of said sections or proceeding by the commissioner which may be brought against a creditor, OTHER THAN WITH RESPECT TO A CONSUMER CREDIT TRANSACTION SECURED BY REAL PROPERTY may be maintained against any assignee of that creditor only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, except where the assignment was involuntary. For the purpose of this [section] SUBDIVISION, a violation apparent on the face of the disclosure statement includes, but is not limited to, (A) a disclosure which can be determined to be incomplete or inaccurate from the face of the disclosure statement or other documents assigned, or (B) a disclosure not made in the terms required to be used by said sections. (2) Except as provided in subdivision (2) of subsection (j) of this section, in any action or proceeding by or against any subsequent assignee of the original creditor without knowledge to the contrary by the assignee when he acquires the obligation, written acknowledgment of receipt by a person to whom a statement is required to be given pursuant to sections [36a-665 to] 36a-675 TO 36a-685, inclusive, AS AMENDED BY THIS ACT shall be conclusive proof of the delivery thereof and, except as provided in subdivision (1) of this subsection, of compliance with Chapter 2 of the Consumer Credit Protection Act. This subsection does not affect the rights of the obligor in any action against the original creditor. (3) Any consumer who has the right to rescind a transaction under subsection (j) of this section or Section 125 of the Consumer Credit Protection Act (15 [U.S.C.] USC 1635) may rescind the transaction as against any assignee of the obligation. (4) (A) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN SECTIONS 36a-675 TO 36a-685, INCLUSIVE, AS AMENDED BY THIS ACT, ANY CIVIL ACTION AGAINST A CREDITOR FOR A VIOLATION OF SECTIONS 36a-675 TO 36a-685, INCLUSIVE, AS AMENDED BY THIS ACT, AND ANY PROCEEDING BROUGHT BY THE COMMISSIONER 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 (i) THE VIOLATION FOR WHICH SUCH ACTION OR PROCEEDING WAS BROUGHT IS APPARENT ON THE FACE OF THE DISCLOSURE STATEMENT PROVIDED IN CONNECTION WITH SUCH TRANSACTION PURSUANT TO SECTIONS 36a-675 TO 36a-685, INCLUSIVE, AS AMENDED BY THIS ACT, AND THE CONSUMER CREDIT PROTECTION ACT (15 USC 1601 ET SEQ.), AND (ii) THE ASSIGNMENT TO THE ASSIGNEE WAS VOLUNTARY. (B) FOR PURPOSES OF THIS SUBDIVISION, A VIOLATION IS "APPARENT ON THE FACE OF THE DISCLOSURE STATEMENT" IF (i) 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 (ii) THE DISCLOSURE STATEMENT DOES NOT USE THE TERMS OR FORMAT REQUIRED TO BE USED BY SECTIONS 36a-675 TO 36a-685, INCLUSIVE, AS AMENDED BY THIS ACT, AND THE CONSUMER CREDIT PROTECTION ACT (15 USC 1601 ET SEQ.). (5) A SERVICER OF A CONSUMER OBLIGATION ARISING FROM A CONSUMER CREDIT TRANSACTION SHALL BE TREATED AS AN ASSIGNEE OF SUCH OBLIGATION TO THE EXTENT PROVIDED IN SUBSECTION (f) OF SECTION 131 OF THE CONSUMER CREDIT PROTECTION ACT (15 USC 1641 (f)). THIS SUBDIVISION APPLIES TO ALL CONSUMER CREDIT TRANSACTIONS IN EXISTENCE OR CONSUMMATED ON OR AFTER SEPTEMBER 30 1995.

(l) (1) Subject to the limitation contained in subdivision (2) of this subsection, 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 (A) 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; (B) the amount of the transaction exceeds fifty dollars; and (C) the transaction took place wholly within this state, provided the mailing address previously provided by the cardholder was within this state and provided the state of billing of the transaction shall not be considered in determining where the transaction took place, or the transaction took place within one hundred miles from the mailing address within this state previously provided by the cardholder, except that the limitations set forth in SUBPARAGRAPHS (B) and (C) OF THIS SUBDIVISION 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 (i) is the same person as the card issuer, (ii) is controlled by the card issuer, (iii) is under direct or indirect common control with the card issuer, (iv) is a franchised dealer in the card issuer's products or services, or (v) 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. (2) 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 this subdivision, payments and credits to the cardholder's account are deemed to have been applied, in the order indicated, to the payment of: (A) Late charges in the order of their entry to the account; (B) finance charges in order of their entry to the account; and (C) debits to the account other than those set forth [above] IN SUBPARAGRAPHS (A) AND (B) OF THIS SUBDIVISION, in the order in which each debit entry to the account was made.

(m) (1) For the purpose of this subsection, the term "creditor" in this section shall include a lessor. (2) Any lessor who fails to comply with any requirement imposed under Section 182 or 183 of the Consumer Credit Protection Act (15 USC 1667a or 1667b) with respect to any person is liable to such person as provided in this section. (3) Any lessor who fails to comply with any requirement imposed under Section 184 of the Consumer Credit Protection Act (15 USC 1667c) with respect to any person who suffers actual damage from the violation is liable to such person as provided in this section.

IN THE CASE OF ANY CONSUMER CREDIT TRANSACTION SUBJECT TO THE PROVISIONS OF SECTIONS 36a-675 TO 36a-685, INCLUSIVE, AS AMENDED BY THIS ACT, THAT IS CONSUMMATED BEFORE SEPTEMBER 30, 1995, THE CIVIL, ADMINISTRATIVE AND CRIMINAL LIABILITY OF A CREDITOR OR ANY ASSIGNEE OF A CREDITOR UNDER SECTIONS 36a-675 TO 36a-685, INCLUSIVE, AS AMENDED BY THIS ACT, AND A CONSUMER'S EXTENDED RESCISSION RIGHTS UNDER SUBDIVISION (3) OF SUBSECTION (j) OF THIS SECTION, SHALL BE LIMITED TO THE EXTENT PROVIDED IN AND SUBJECT TO THE EXCEPTIONS CONTAINED IN SECTION 139 OF THE CONSUMER CREDIT PROTECTION ACT 15 USC (1649).

(a) Sec. 2. This act shall take effect from its passage.

Approved May 2, 1996. Effective May 2, 1996.

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