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Truth in Lending: 12.3.2.2 Transactions Not Secured by Real Property: Identifying and Evaluating the Documents Assigned
For transactions not secured by real estate, section 1641(a) provides that the assignee is liable for violations that are apparent on the face of the disclosure statement and the “other documents assigned.”378 Thus, discovery is essential for determining what disclosures and other documents were provided to the assignee.
Truth in Lending: 12.3.2.3 Real-Property-Secured Transactions: Identifying and Evaluating the Relevant Documents
For real-estate-secured transactions, the statute makes assignees liable for claims that are “apparent on the face of the disclosure statement.”389 A violation is apparent if the disclosure can be determined to be incomplete or inaccurate by a comparison among the “disclosure statement provided in connection with such transaction” and “any itemization of the amount financed, the note, or any other disclosure of disbursements.”390 These special provisions for real-property-secured transa
Truth in Lending: 12.3.2.4 Types of Violations That Are Apparent on the Face of the Documents
Whether a violation is apparent on the face of the documents is an objective standard.397 The assignee’s degree of sophistication is irrelevant.398 The assignee is required to compare the assigned documents to each other.399 Missing information in the contract documents may also put the assignee on notice that the TILA disclosures are not accurate.400 One court held that the creditor did not have to r
Truth in Lending: 12.3.2.5 Impact of Assignee’s Actual Knowledge
Assignee liability for disclosure violations of which the assignee has actual knowledge but which are not apparent on the face of the documents is particularly relevant to cases involving hidden charges.
Truth in Lending: 12.3.2.6 What Is Apparent on the Face for Post-Consummation and Post-Assignment Violations
For both open-end and closed-end transactions, TILA imposes post-consummation requirements in some circumstances.435 Some courts have questioned how to apply TILA’s assignee-liability standard in these circumstances. In Evanto v.
Truth in Lending: 12.3.3 Right of Rescission Against Assignees
A consumer may exercise the right of rescission against an assignee whenever the consumer would have been able to exercise that right against the original creditor.454 This is true whether or not the TILA violation on which rescission is based was apparent on the face of the disclosure statement.
Truth in Lending: 12.3.4 Assignee’s Liability for TILA Defenses and Setoffs Raised in Recoupment
TILA’s limitation of assignee liability to violations apparent on the face of the documents should not apply if the violation is asserted as a defense in recoupment or as a setoff when an assignee sues on the debt.
Truth in Lending: 12.3.5.1 When a Judicial or Nonjudicial Foreclosure Has Been Initiated
As section 1640(k) makes unequivocally clear, homeowners can raise violations of the ability-to-repay or steering incentive rules against anyone—creditor, assignee, holder, or agent—who initiates a judicial or nonjudicial foreclosure against the homeowner.459 This is a powerful new right.
Truth in Lending: 12.3.5.2 Relationship Between § 1640(k) and § 1641
Where there is a conflict between the direct assignee liability imposed under section 1640(k) and the assignee limitations in section 1641, the provisions in section 1640(k) control. Congress made this clear by providing for assignee liability under section 1640(k) “[n]otwithstanding any other provision of law.” Even without this clear directive, however, standard canons of statutory interpretation mandate the priority of section 1640(k) over section 1641.
Truth in Lending: 12.3.5.3 When the Homeowner Brings an Affirmative Case Before a Judicial or Nonjudicial Foreclosure Has Been Initiated
Section 1640(k) only addresses assignee liability for ability-to-repay and steering incentive violations when a foreclosure has been initiated. Section 1640(k) is silent on the extent of assignee liability when the homeowner initiates a civil action outside the context of foreclosure. In that case, the general provisions of section 1641 control.468
Truth in Lending: 12.3.6 Involuntary Assignments
TILA provides that, except in real-estate-secured transactions, consumers can press TILA monetary claims not apparent from the face of the disclosure statement whenever there has been an “involuntary” assignment such as might occur through a creditor’s bankruptcy.474 One TILA commentator points out, however, that this result is the precise opposite of the rule under pre-Simplification TILA and suggests that it is the result of an error in the rewording of the statute rather than a deliberate legislative reversal of the rule.
Truth in Lending: 12.3.7 Servicer Liability
A servicer is not considered an assignee (or a creditor) for purposes of TILA liability unless it is or was the owner of the obligation and did not take the assignment “solely for administrative convenience.”479 Acting like a holder of the loan will not overcome this provision.480 But a servicer may be estopped from denying ownership of the note in some circumstances.481 In Meyer v.
Truth in Lending: 12.3.8 Assignees of HOEPA Obligations
Assignees of loans covered by HOEPA489 may be liable, up to the amount of the debt, for “all claims and defenses”—not just ones arising under TILA—which could have been asserted against the original creditor. Only if the lender can prove that it did not know the debt was subject to HOEPA, and further that a “reasonable person, exercising due diligence” could not have known from the transaction documents that it was, will it be protected from this expanded liability.
Truth in Lending: 12.3.9 Series of Assignments
Sometimes an obligation is assigned and re-assigned to a series of assignees. Since TILA provides that “any civil action . . . which may be brought against a creditor may be maintained against any assignee of such creditor” if the violation is apparent on the face of the documents,490 it appears that the action may be maintained against any one or more of a series of assignees, and all are liable if the violation is apparent on the face of the documents.
Truth in Lending: 12.3.10 Effect of Written Acknowledgment of Receipt in Suits Against Assignees
Except in a transaction subject to the right to rescind, innocent assignees are entitled to an irrebuttable presumption of delivery of disclosures where there is a written acknowledgment of receipt.496 If the assignee knew when it acquired the debt that there was no delivery, it is not entitled to this irrebuttable presumption.497 In cases involving rescission, written acknowledgment of receipt creates no more than a rebuttable presumption of delivery.498
Truth in Lending: 12.3.11 Effect of FTC Holder Rule and HOEPA Assignee Liability Provision
The Federal Trade Commission’s Trade Regulation Rule Concerning the Preservation of Defenses (hereinafter FTC Holder Rule) abrogates holder-in-due-course protection for assignees of consumer credit contracts.499 The FTC Holder Rule requires credit sellers to include in their consumer credit contracts a clause that subjects the holder to “all claims and defenses” that the debtor could assert against the original credit seller.
Truth in Lending: 12.4.1 Overview
The Truth in Lending Act creates nine defenses that a creditor may raise to avoid TILA liability. The first six of these special statutory defenses are:
Truth in Lending: 12.4.2.1 History and Scope of the Defense
TILA provides that creditors and lessors are not liable for acts done or omitted in good faith in conformity with any rule, regulation, or interpretation issued by the Consumer Financial Protection Bureau (CFPB) or the Federal Reserve Board (FRB) even if it is subsequently changed or held invalid.517 This narrow defense was created in 1974518 after a recommendation by the FRB,519 which was originally tasked with implementing TILA.
Truth in Lending: 12.4.2.2 Elements of the Defense
Whether a creditor acted in good faith is a question of fact, which cannot be determined on the pleadings.544 The Fifth Circuit has said that the good faith defense “should ordinarily be pleaded specially and proved.”545 Creditors are not liable if they rely in good faith on a provision described in section 1640(f) that a court later declares invalid.546 But the good faith defense does not apply to provisions that were invalidated prior to a credit
Truth in Lending: 12.4.3 Use of Model Forms
Creditors are also deemed to be in compliance with the disclosure requirements if they use the appropriate model forms or clauses558 promulgated as part of Regulation Z.559 There are important limitations on the model forms defense: it does not apply to numerical disclosures;560 the creditor must have selected the model form “appropriate” to the transaction;561 and, though deletions or changes may be
Truth in Lending: 12.4.4.1 Introduction; Scope
TILA’s “bona fide error” defense protects a creditor or assignee from liability where it “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.”569 The defense, sometimes called the clerical error defense, does not include errors of legal judgment.570
Truth in Lending: 12.4.4.2 Burden of Proof
TILA explicitly requires creditors to prove the bona fide error defense “by a preponderance of the evidence.”579 Consumers need not prove bad faith on the part of creditors in order to prevail.580
The creditor has the burden of establishing each of the three necessary elements of the bona fide error defense, each of which is discussed separately in the sections that follow.
Truth in Lending: 12.4.4.3 Unintentional Error
To satisfy the bona fide error defense, the creditor must show that the error was unintentional. The lack of intent goes not to an intent to violate TILA, but rather to an intent to do the “voluntary, deliberate acts and omissions” that may be the subject of a TILA violation.590 Thus, the bona fide error defense will not be available where the creditor had the intention to do the act or omission that resulted in an error, even if it had no intent to violate TILA.