This article sets out twenty-eight obligations of creditors, collectors, and merchants to either provide information to a consumer upon request or to retain consumer information for several years. These requirements assist consumer practitioners in developing the facts in a case and help consumers understand the nature of their transactions.
While consumer laws and regulations set out many affirmative disclosure requirements, lesser-known statutes and rules require companies to provide information only upon the consumer’s request. It is essential to be familiar with these provisions to utilize them when they prove useful.
In addition, a number of federal consumer laws require companies to retain information whose discovery can prove valuable in proving the consumer’s case. Typically, the retention requirements are coupled with a requirement that the retained information be provided on request to regulators, but not to consumers. Nevertheless, the fact that a company is required by law to retain information for a period of years will assist the consumer’s discovery of that information in a litigated case.
Statutes that require companies to provide information upon the consumer’s request often give consumers private remedies, including statutory damages, if the company does not properly respond to the request. Before filing such a suit in federal court, however, carefully review the circuit’s holdings regarding Article III standing, and investigate any harm that the non-disclosure caused the consumer. For example, if the consumer would have exercised a right if the business had provided the required information or would have been able to protect against a loss, this should be carefully documented and alleged. Extra time and expense that the consumer had to expend to get the information may also be sufficient to establish standing. See the discussions at NCLC’s Fair Debt Collection §§ 184.108.40.206.7, 220.127.116.11.2, 18.104.22.168.
1. Payoff Amount for Precomputed Credit Accounts
For any precomputed credit account (e.g., auto loans and other retail installment sales transactions), the Truth in Lending Act, 15 U.S.C. § 1615(c), gives consumers the right to obtain, within five days of an oral or written request, the amount due and the amount necessary to prepay the account in full, including the amount of prepaid interest which the creditor must refund. One statement a year is free and there can be a charge for additional requests only if the fee is reasonable and disclosed in advance.
2. Payoff Statement for Mortgage and Manufactured Home Loans
A request for a mortgage payoff statement can be an effective tool for discovering whether a servicer has imposed improper fees and charges on the borrower’s mortgage account. Truth in Lending requires a mortgage holder or servicer on written request to provide an accurate payoff statement to the borrower within seven business days. 15 U.S.C. § 1639g; Reg. Z, 12 C.F.R. § 1026.36(c)(3). This right applies to manufactured home credit as well. See Reg. Z § 1026.2(a)(19). Many states have enacted similar laws that may include additional consumer rights. These state laws are summarized at NCLC’s Mortgage Servicing and Loan Modifications Appx. D.2.
3. Credit Card Agreements and Pricing
Truth in Lending Regulation Z, 12 C.F.R. § 1026.58(e) requires credit card issuers, within thirty days of a consumer’s request, to provide a copy of the cardholder agreement applicable to the consumer's account. Alternatively, the card issuer can post and maintain the cardholder agreement on its website. The agreement must contain an addendum with key pricing information. Card issuers must also submit agreements and pricing information of credit cards currently offered to the public to the CFPB, which maintains a registry of credit card agreements at https://www.consumerfinance.gov/credit-cards/agreements/. See Reg. Z § 1026.58(c). See also NCLC’s Truth in Lending § 6.4.4.
4. Information on Mortgage or Manufactured Home Loans
RESPA gives consumers important rights to obtain information on a mortgage loan. 12 U.S.C. § 2605(e); Reg. X, 12 C.F.R. § 1024.36. See also NCLC’s Mortgage Servicing and Loan Modifications § 3.3. This right applies to manufacture home credit as well. See 12 C.F.R. § 1024.2(b). RESPA does not preempt stronger state servicing laws, enacted in several states, that apply to a broader spectrum of loans or give greater consumer rights to obtain information; these laws are summarized at NCLC’s Mortgage Servicing and Loan Modifications Appx. D.
Written requests for information to the mortgage servicer under RESPA need not be in any special form and should be sent to the address the servicer identifies for such requests, usually listed on a transfer of servicing statement, an annual escrow statement, the consumer’s monthly billing statement, and the servicer’s website. A servicer may not charge a fee to the borrower for responding to a request.
Within five business days after receipt of the request, the servicer must acknowledge receipt of the request and, within thirty business days provide the information requested or explain why it is not available, including the name and phone number of an employee of the servicer who can provide further information. The consumer can also dispute information on the account with a similar process and with similar response rights. See Reg. X, 12 C.F.R. § 1024.35.
RESPA remedies for failure to comply with these rights include actual damages plus $2,000 additional statutory damages if there is a pattern or practice of non-compliance, plus attorney fees and costs. 12 U.S.C. § 2605(f). If violations lead eventually to foreclosure damages, including damages for emotional distress, those damages can be significant.
5. An Accounting of Credit Secured by Personal Property—Auto Title Loans, Auto Loans, etc.
For any credit where a good is taken as collateral on a loan, U.C.C. § 9-210, a version of which is adopted in every state, gives consumers the right to an accounting of the amount due. This right applies not just to motor vehicle or manufactured home loans, but to non-purchase money credit as well, such as auto title loans or high-rate credit taking personal property as collateral. The creditor has fourteen days to respond, identifying the components of the obligation in reasonable detail. A creditor that no longer holds the loan has fourteen days to identify the assignee. The consumer is entitled to one free statement a year, and fees for additional statements are capped at $25. Failure to comply with these rights without reasonable cause creates liability for actual damages plus $500 (some states alter the $500 amount). See U.C.C. § 9-625(f); NCLC’s Repossessions §§ 22.214.171.124, 10.4.11.5.
6. A Listing of Personal Property Collateral Securing a Credit Obligation
Consumers can confirm or even limit the personal property collateral securing an obligation by sending the creditor a list of what the consumer believes is the collateral on a credit account. U.C.C. § 9-210. The creditor has fourteen days to either approve or correct the information. A creditor that no longer holds the loan has fourteen days to identify the assignee. The consumer is entitled to this procedure free once a year, and the fee for additional requests is capped at $25.
If a creditor fails to respond to the consumer’s list, and the failure would reasonably mislead the consumer, the creditor can only claim as collateral items found on the consumer’s list. See U.C.C. § 9-625(g). The consumer also has an action for actual damages plus $500 (some states alter the $500 amount). U.C.C. § 9-625(f).
7. Accounting of the Deficiency after a Repossession Sale
After a creditor repossesses and sells the consumer’s vehicle or other personal property collateral, the creditor must give the consumer an explanation of the amount of any deficiency it is seeking. The consumer also has the right to obtain this explanation once every six months, at no charge and within fourteen days. U.C.C. § 9-616. See also NCLC’s Repossessions § 11.2. The explanation must state how the deficiency was calculated, any rebates of unearned interest, the sale proceeds, and the types and total amount of expenses charged to the consumer. Remedies for non-compliance are actual damages plus, if the creditor’s non-compliance is part of a pattern or a consistent practice of non-compliance, $500. U.C.C. § 9-625(e).
8. Identity of a Credit Account’s Owner
Consumers may not know the owner of their own credit account where the account has been assigned to another entity and the consumer’s contact on the account is with a servicer and not the account owner. Upon a consumer’s written request, an account’s servicer must provide the name, address, and telephone number of the account owner (or the account’s master servicer where the consumer’s request is made to a sub-servicer). See 15 U.S.C. § 1641(f)(2). See also NCLC’s Truth in Lending § 9.9a.3.3.
9. Information on Debts Collected by Third Parties
When a third party that qualifies as a debt collector under the Fair Debt Collection Practices Act (FDCPA) is collecting on a consumer debt, 15 U.S.C. § 1692g and Reg. F, 12 C.F.R. § 1006.34, provide information rights to the consumer. FDCPA debt collectors include debt collection agencies, collection attorneys, debt buyers, and servicers that take on an account after default.
Regulation F requires debt collectors to provide detailed “validation” information about a debt in collection at or shortly after the debt collector’s first contact with the consumer. See NCLC’s Fair Debt Collection Ch. 9. Consumers then have two rights that they can exercise within thirty days of receiving this validation information from the debt collector.
One right is to dispute the debt. While a consumer may dispute a debt at any time, if the consumer disputes within thirty days of receiving the validation information, the debt collector must cease any collection until it obtains verification of the debt and provides it to the consumer. The second right is to request the name and address of the original creditor, which also triggers a collection pause until the debt collector provides the information to the consumer. Either request must be in writing (or electronically if the collector receives electronic communications from consumers). See NCLC’s Fair Debt Collection Ch. 9.
If the debt collector fails to respond properly to either type of request or to provide the validation outlined in Regulation F, the consumer may seek damages for violation of their rights under the FDCPA, including statutory damages up to $1,000, plus any actual damages and attorney fees. See NCLC’s Fair Debt Collection Ch. 11. Consumers filing FDCPA lawsuits in federal court will need to establish Article III standing including demonstrating a concrete injury, as described at the beginning of this article.
10. Itemization of the Gross Capitalized Cost on an Automobile Lease
A key component of the cost of a lease is the “gross capitalized cost,” the rough equivalent of the amount financed in a credit transaction. While the Consumer Leasing Act’s Regulation M requires disclosure of the value of the vehicle as a component of the gross capitalized cost, other items that the consumer pays for as part of the lease need not be itemized. Nevertheless, if the lessor does not provide such an itemization, the consumer has the right on request to receive a written itemization of the gross capitalized cost by type and amount. Reg. M, 12 C.F.R. § 1013.4(f)(1). While it can be requested later, a consumer can also require the itemization prior to the lease signing. Reg. M Official Interpretations § 1013.4(f)(1)-2. See generally NCLC’s Truth in Lending § 126.96.36.199.3.
11. Information on Federal Student Loans
The Department of Education's Federal Student Aid website provides information to student loan borrowers about their federal student loans at studentaid.gov. Borrowers can create an account and then login to check their loan balances, loan types, and the status of their federal student loans. If the borrower cannot login online, they can call the Federal Student Aid Information Center at 1-800-4-FED-AID (1-800-433-3243) or 1-800-730-8913 (TTY) for assistance. See NCLC’s Student Loan Law § 1.9.
12. Information on Questionable Charges on Credit Card, Other Open-End Accounts
When a consumer wants more information about a charge on a credit card statement or other open-end credit account, the creditor may provide that information voluntarily. But the consumer can also raise an inquiry pursuant to the Fair Credit Billing Act, 15 U.S.C. § 1666. See NCLC’s Truth in Lending § 7.9. The inquiry must be written in the form of a written dispute, sent within sixty days after the first billing statement containing the questioned charges, and specify the dollar amount and reason for the dispute, which could include a request for clarification. The letter must be sent to the address the creditor provides for this purpose, found on the monthly statement.
Once the consumer raises a dispute, the creditor must investigate and report back in writing within two complete billing cycles or ninety days, whichever comes first. If the credit card company does not resolve the dispute in the consumer’s favor, it must send a written explanation and give the consumer any supporting documentation upon request.
13. Information on Questionable Electronic Fund Transfers or Charges on Debit Cards
The Electronic Fund Transfers Act (EFTA) provides consumer error correction rights applicable to debit card transactions, direct deposits, automatic bill payment plans, and other forms of electronic transfers withdrawn directly out of a consumer’s bank account. 15 U.S.C. § 1693; Reg. E, 12 C.F.R. pt. 205. See also NCLC’s Consumer Banking and Payment Law § 5.6. While EFTA protections do not apply to check payments, they do apply where the merchant takes a consumer’s check not for deposit, but to use as a source document for the checking account and bank routing numbers to initiate an electronic transfer. The consumer’s monthly statement should note these electronic check conversions differently than check transactions.
The EFTA provides consumers with the right to obtain more information about a questioned credit or debit. The consumer must send a notice within sixty days of receipt of the bank statement displaying the charge. While this notice can be made orally, the bank can require a confirming notice in writing. If the bank does not credit the consumer’s account immediately to correct the error, it must promptly institute an investigation, complete it within ten business days, and send notice of the results to the consumer within three days. If the bank denies the consumer’s claim, it must provide a written explanation and offer the consumer the opportunity to see the documents, in an “understandable form,” upon which the bank relied.
For certain forms of non-compliance with these error resolution requirements, the bank is liable under the EFTA for treble damages, and in any event, it is liable for actual damages plus statutory damages of not less than $100 nor more than $1,000, plus attorney fees.
14. Information in Consumer’s Credit Report
Consumers have the right both to see the entries in their credit report and to seek additional information on a specific entry. Consumers are entitled to a free credit report once every twelve months from each of the three major "nationwide" consumer reporting agencies (CRAs), i.e., Equifax, Experian, and TransUnion. There are three ways to order:
- Online at www.annualcreditreport.com;
- Call (877) 322-8228; or
- Go to www.annualcreditreport.com/gettingReports.action and click on “request form” under the mail heading. Then print out and complete the Annual Credit Report Request Form and mail it to Annual Credit Report Request Service, P.O. Box 105281, Atlanta, GA 30348-5281.
Consumers may order a free report from all three CRAs at once or they can order from only one agency, saving their right to a free report from the other two until later in the year. Consumers should not contact CRAs directly to obtain this free annual report, but go through annualcreditreport.com.
Consumers also have the right to additional free reports if a company denies the consumer’s application for credit, insurance, or employment, and the applicant requests a copy of their credit report within sixty days after receiving the denial notice. One free report is also available once in any twelve-month period for consumers who certify in writing to the CRA that they:
- Are unemployed and intend to apply for a job in the next sixty days;
- Have been denied credit within the past sixty days;
- Are receiving public benefits assistance;
- Believe that a credit report is inaccurate due to fraud; or
- Have requested a fraud alert.
For free reports based on these reasons, the consumer should contact a CRA directly:
- Equifax, 800-685-1111, www.equifax.com;
- Experian, 888-397-3742, www.experian.com;
- TransUnion, 888-916-8800, www.transunion.com.
Consumers can purchase a credit report for a maximum price of $13 per report, and in Colorado, Georgia, Maryland, Massachusetts, New Jersey, and Vermont residents can get an additional free report each year. See generally NCLC’s Fair Credit Reporting § 3.3.
Once the consumer obtains a report, the best way to obtain additional information about a questioned entry is to file a dispute with the CRA, pursuant to the FCRA, 15 U.S.C. § 1681i(a)(1)(A). See also NCLC’s Fair Credit Reporting § 4.5. The consumer should inform the CRA in writing what information is in dispute. The CRA must investigate the entries in question—usually within thirty days—unless it considered the consumer’s dispute frivolous. The CRA must also forward to the creditor or other entity that provided the questioned entries all relevant data the consumer provided to the CRA.
The entity providing the questioned entries must then investigate, review all relevant information provided by the CRA, and report the results to the CRA. When the investigation is complete, the CRA must give the consumer the written results, and a free copy of the report, if the dispute results in a change. Upon the consumer's request, the CRA must also provide a description of the investigation procedures, as well as the name and address of the information provider. 15 U.S.C. § 1681i(a)(6). See NCLC’s Fair Credit Reporting § 188.8.131.52.
Violations can lead to claims for attorney fees and actual damages and, if willful, the higher of actual damages or statutory damages from $100 to $1,000. Punitive damages are also available for willful violations. These remedies may be available not just against the CRA, but also against the entity providing the questioned entries if it fails to correct the inaccurate information it had furnished to the CRA.
15. Right to Obtain a Consumer’s Credit Score
Creditors that use a credit score in connection with a mortgage application, or that reject a credit application or impose an increased price based on a score ("risk-based pricing"), must provide the applicant with that credit score and with the associated key factors affecting the score. In addition, CRAs are required to provide consumers with their credit scores upon request for a fee, although this score could be an "educational score" not used by any lenders. Consumers are entitled to receive the following:
- Their current credit score or most recent score that was calculated by the consumer reporting agency relating to an extension of credit.
- A statement indicating that the information and credit scoring model used may be different from the credit score used by the lender.
- The range of credit scores (lowest and highest) of the model used to generate the credit score so the consumer can check where their score fits into the range.
- The key factors that adversely affected a credit score, listed in order of impact. The agency cannot list more than four key factors, unless one of the factors is the number of inquiries, in which case that factor must be included.
- The date on which the credit score was created.
- The name of the provider of the credit score or the credit file used to generate the credit score.
See 15 U.S.C. §§ 1681g(f) and (g), 1681m(a) and (h); NCLC’s Fair Credit Reporting § 16.4.
16. Information on Identity Theft Charges
A consumer has the right to obtain information from any business that engaged in transactions with an identity thief in the victim’s name. 15 U.S.C. § 1681g(e). See also NCLC’s Fair Credit Reporting § 184.108.40.206. The consumer can obtain from that business the thief’s application for credit and any business records relating to the transaction. The consumer should make a written request to the business and must prove the consumer’s identification and the validity of the identity theft claim, by providing information as requested by the business.
Similarly, if a consumer notifies a debt collector that a debt involves identity theft, the collector must give the consumer the same information about the debt that the consumer would have been entitled to receive had the consumer actually incurred the debt. 15 U.S.C. § 1681m(g). See also NCLC’s Fair Credit Reporting § 220.127.116.11.
17. Auto Title Retention Requirements for Dealers, Wholesalers, Insurers and Creditors
Motor vehicle dealers and distributors that buy or sell vehicles—including insurance companies that purchase and sell damaged vehicles, and auto creditors that sell repossessed vehicles—must retain at their primary place of business for five years a print or electronic copy of each title, reassignment form, and power of attorney they receive or issue, in an order that is appropriate to business requirements and that permits systematic retrieval.49 C.F.R. § 580.8(a), (c). Lessors must retain odometer disclosure statements they receive from a lessee.49 C.F.R. § 580.8(b). See generally NCLC’s Automobile Fraud § 18.104.22.168.
These records must be available for retrieval and inspection when law enforcement officials request them from dealers, distributors, and lessors. Dealers, distributors, and lessors are under no requirement to keep copies of such disclosures made on an electronic title or power of attorney but may do so. For states using electronic titling, odometer disclosures made on electronic titles or electronic powers of attorney must be retained by the state for a minimum of five years.
18. Mortgage Servicer Record Retention Requirements
Regulation X, 12 C.F.R. § 1024.38(c) (1), requires a servicer to retain records that document actions taken with respect to a borrower's mortgage loan account until one year after the date a mortgage loan is discharged, or servicing of a mortgage loan is transferred to a transferee servicer. Reg. X § 1024.38(c)(2) requires that the servicer also must maintain: a schedule of all transactions credited or debited to the mortgage loan account, including any escrow or suspense account; a copy of the mortgage; notes created by servicer personnel reflecting communications with the borrower; a report of the data fields relating to the borrower’s mortgage loan account; and information the borrower has provided to the servicer. See NCLC’s Mortgage Servicing and Loan Modifications § 3.10.6. This information must be stored in a manner that facilitates compiling such documents and data into a servicing file. The information may be obtained by the borrower through a request for information as described at # 4, supra. See Reg. X Official Interpretations § 38(c)(2)-2.
In addition, Reg. X § 1024.10(e) requires that a lender retain completed HUD-1 or HUD-1A and related documents for five years after settlement. If a lender disposes its interest in the mortgage and does not service the mortgage, then the lender must provide these records to the new HUD-1A to the owner or servicer where they will be retained for the remainder of the five-year period. Reg. X § 1024.15(d) requires retention for five years of certain records regarding affiliated business arrangements. Reg. X § 1024.14(h) requires retention for five years of records concerning the Regulation X provision concerning kickbacks and unearned fees.
19. All Creditors Must Retain Credit Applications and Actions Taken on Credit Accounts
All creditors must retain for twenty-five months the consumer’s application for credit, any information used in evaluating the application, and the written notification to the applicant of the action taken and the reasons for any adverse action. See Reg. B, 12 C.F.R. § 1002.12(b). The creditor must also retain an adverse action notice if a creditor later cancels or changes the terms of a credit account. See Reg. B, 12 C.F.R. § 1002.12(b)(2). Creditors must also retain the text of any pre-screened solicitation, the list of criteria the creditor used to select potential recipients of the solicitation, and any correspondence related to complaints (formal or informal) about the solicitation.15 U.S.C. § 1681(m); Reg. B, 12 C.F.R. § 1002.12(b)(7). All this information need not be retained in paper format, and it can be retained digitally if it can be generated in a timely manner. See generally NCLC’s Credit Discrimination § 10.12.
20. All Creditors and Lessors Must Retain Records Regarding TILA and CLA Compliance
Reg. Z, 12 C.F.R. § 1026.25, and Reg. Z Official Interpretations § 1026.25 require creditors to retain evidence of compliance with Regulation Z for two years after making a disclosure or other action required under TILA. Certain mortgage records must be retained for three years, including compliance with ability-to-pay requirements. If a creditor must verify and document information used in underwriting a transaction, the creditor must retain evidence sufficient to demonstrate compliance with the rule’s documentation requirements. Reg. Z § 1026.25(c)(1)(i).
For most mortgages that have a prepayment penalty, the creditor must maintain records that document that the creditor offered the consumer an alternative transaction that does not include a prepayment penalty. If the offer was through a mortgage broker, the creditor should retain evidence of the alternative offer presented to the mortgage broker, such as a rate sheet, and the agreement with the mortgage broker. See Reg. Z Official Interpretations § 1026.25(c)(3)-2.
Reg. Z § 1026.25(c)(1)(ii) requires that mortgage closing disclosures must be kept for five years. Records of mortgage closing disclosures must be transferred to a servicer or assignee and such entity shall retain the records for the remainder of the five years.
The evidence may be retained by any method that reproduces records accurately (including computer programs). Unless otherwise required, the creditor need retain only enough information to reconstruct the required disclosures or other records. For example, a creditor need not retain each periodic statement, if the specific information on each statement can be retrieved.
The Consumer Leasing Act’s Reg. M, 12 C.F.R. § 1013.8, requires lessors to retain evidence of compliance with Regulation M, other than the advertising requirements, for at least two years after the date the disclosures are required to be made or an action is required to be taken.
21. Record Retention Requirements for Mortgage Loan Originator Compensation
Reg. Z, 12 C.F.R. § 1026.25(c)(2)(i) requires a creditor to maintain records sufficient to evidence all compensation it pays to a loan originator, as well as the compensation agreements that govern those payments. The records must be kept for three years after the date of the payments. Reg. Z § 1026.25(c)(2)(ii) requires that a loan originator maintain records sufficient to evidence all compensation it receives from a creditor, a consumer, or another person and all compensation it pays to any individual loan originators, as well as the compensation agreements that govern those payments or receipts. These must be retained for three years after the date of the receipts or payments. Reg. Z Official Interpretations § 1026.25(c)(2) sets out examples of records that should be kept and the definition of a compensation agreement.
22. Debt Collector Record Retention Requirements—for Collection Agencies, Collection Attorneys, Debt Buyers, Mortgage Servicers
Reg. F, 12 C.F.R. § 1006.100(a), creates a record retention requirement for “debt collectors.” See also Reg. F Official Interpretations § § 1006.100(a); NCLC’s Fair Debt Collection § 22.214.171.124. Since the retention requirement applies to entities that qualify as “debt collectors” under the Fair Debt Collection Practices Act (FDCPA), it applies to debt collection agencies, collection attorneys, debt buyers whose principal business is collection of debts, mortgage servicers that take on an account after default, and even originating creditors that collect under a different name.
A debt collector must retain records that evidence that the debt collector performed the actions and made the disclosures required by the FDCPA and Regulation F, as well as records that evidence that the debt collector refrained from conduct prohibited by the FDCPA and Regulation F. For example, a debt collector must retain call logs and copies of documents provided to consumers.
However, a debt collector is not required to create or maintain additional records to evidence compliance, but only has to retain applicable records that are already created in the ordinary course of its business. Likewise, Regulation F does not require debt collectors to record calls with consumers, but if they do, they must retain the recording for each call.
The records must be retained for three years since the last collection activity. A transfer of ownership or collection responsibility could be a last collection activity. If a debt collector records telephone calls made in connection with the collection of a debt, the debt collector must retain the recording of each such telephone call for three years after the date of the call.
Records may be retained by any method that reproduces the records accurately (including computer programs) and that ensures that the debt collector can easily access the records (including a contractual right to access records possessed by another entity). Regulation F § 1006.100 is finalized pursuant to title X of the Dodd-Frank Act and does not provide a private right of action if a debt collector fails to comply.
23. Seller and Telemarketer Record Retention Requirements for Telemarketing
The FTC Telemarketing Sales Rule (TSR), 16 C.F.R. § 310.5, requires both sellers and telemarketers to keep records relating to telemarketing activities for twenty-four months from when the record is produced and in the same manner, format, or place as they keep such records in the ordinary course of business:
- All substantially different advertising, brochures, telemarketing scripts, and promotional materials;
- The name and last known address of each customer, the goods or services purchased, the date such goods or services were shipped or provided, and the amount paid for the goods or services;
- Certain information about prizes awarded;
- The name, fictitious name used, last known home address and telephone number, and job title for all current and former employees directly involved in telephone sales; and
- All records of express informed consent or agreement required under the TSR.
The seller and the telemarketer calling on behalf of the seller may, by written agreement, allocate responsibility between themselves for the required recordkeeping. In the event of any dissolution or termination of the seller's or telemarketer's business, the principal of that seller or telemarketer must maintain all required records. In the event of any sale, assignment, or other change in ownership of the seller's or telemarketer's business, the successor business must maintain all required records.
The FTC has initiated a rulemaking proceeding to consider strengthening these requirements. See 87 Fed. Reg. 33,677 (June 3, 2022). See also comments on the proposal by the Electronic Privacy and Information Center, NCLC, and other organizations.
24. Remittance Transfer Providers’ Retention of Notices of Error
Reg. E, 12 C.F.R. § 1005.33(g)(2) requires that remittance transfer providers must retain any notices of error submitted by a sender, documentation provided by the sender to the provider with respect to the alleged error, and the findings of the remittance transfer provider regarding the investigation of the alleged error. Remittance transfer providers are subject to the record retention requirements set out in #25, infra.
25. Record Retention Regarding Compliance with the EFTA and Regulation E
Reg. E, 12 C.F.R. § 1005.13(b) requires that any person subject to the EFTA and Regulation E must retain evidence of compliance with EFTA and Regulation E requirements imposed for at two years from the date disclosures are required to be made or action is required to be taken.
26. Retention of Mortgage Originators’ Criminal Record Reports
Reg. G, 12 C.F.R. § 1007.104(h), requires covered financial institutions that hire mortgage originators to maintain records of employee criminal history background reports and actions taken with respect to applicable employees.
27. Substantiation of Accuracy of Disputed Information Sent to Consumer Reporting Agencies
Reg. V, 12 C.F.R. 1022 app. E, requires those furnishing information to consumer reporting agencies to maintain records for a reasonable period of time, not less than any applicable recordkeeping requirement, in order to substantiate the accuracy of any information about consumers it furnishes that is subject to a direct dispute.
28. Mortgage Assistance Relief Provider Record Retention
Reg. O, 12 C.F.R. § 1015.9, sets out detailed record retention requirements for mortgage assistance relief providers, including contracts, written communications, telephone recordings with consumers, consumer files, documents disclosed to consumers, sales scripts, training and marketing materials. Providers must keep these records for two years from the date the record was created, and they can be kept in the same manner, format, or place as they keep such records in the ordinary course of business.