§14.2 Civil Liability

LibraryConsumer Law in Oregon (OSBar) (2013 Ed.)
§14.2 CIVIL LIABILITY

A lawyer who violates any provision of the Truth in Lending Act is liable to the aggrieved client in an amount equal to (1) any actual damages sustained; (2) for certain violations, statutory damages of twice the amount of the finance charge in connection with the transaction, with a minimum recovery of $100 and a maximum recovery of $1,000; and (3) costs and reasonable attorney fees. 15 USC §1640(a). The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 increases that minimum and maximum to $200 and $2,000. The increases take effect when regulations implementing the amendments take effect, or by January 21, 2013, if regulations have not been issued by that date. Pub L No 111-203, §§1400(c)(2)-(3), 1416(a)(1), 124 Stat 1376, 2136, 2153. If the violations involve a closed-end credit transaction that is secured by real property or a dwelling, statutory damages are increased to a minimum of $400 and a maximum of $4,000. 15 USC §1640(a)(2)(A)(iv). See Koons Buick Pontiac GMC, Inc. v. Nigh, 543 US 50, 62, 125 S Ct 460, 160 L Ed2d 389 (2004) (maximum available statutory damages are $1,000 in a transaction not involving a security interest in real property).

Multiple violations in a single transaction do not result in multiple recoveries of damages. 15 USC §1640(g). When there are multiple obligors, there may be only one recovery of statutory damages, although the limitation does not apply to the recovery of actual damages. 15 USC §1640(d).

§14.2-1 Closed-End Credit

In regard to the financial term disclosures for closed-end credit, a creditor is liable for statutory damages for the failure to disclose the finance charge, the annual percentage rate, the amount financed, and the total of payments, using those precise terms, the payment schedule, and a statement about the security interest taken, if any. 15 USC §1638(a)(2)-(6), (9), 15 USC §1640(a)(2). See Angelini v. Bank of Am., CIV 11-3011-CL, 2011 WL 2433485, at *5-7 (D Or Apr 27, 2011), adopted, 1:11-CV-03011-CL, 2011 WL 2415841 (D Or Jun 14, 2011); In re Ferrell, 358 BR 777 (BAP 9th Cir 2006), aff'd, 539 F3d 1186 (9th Cir 2008).

An issue that has arisen is whether the foregoing is a closed list of statutory damage disclosure violations, or whether statutory damages are also available for other disclosure violations, such as the failure to (1) disclose the finance charge and annual percentage rate more conspicuously (15 USC §1632(a)), (2) disclose any required disclosures...

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