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Consumer Bankruptcy Law and Practice: 6.5.2.2a Improving Chances of Student Loan Discharge

As discussed elsewhere in this manual,168 the Department of Justice and Department of Education have recently adopted guidance intended to streamline and facilitate the discharge of student loans in bankruptcy. Debtors who believe that their student loans may be dischargeable should consider consolidation of their loans prior to filing a bankruptcy so that the consolidated loan will qualify for discharge.

Consumer Banking and Payments Law: 11.1.1 About This Chapter

This chapter considers two interrelated—but very separate—issues: (1) the validity of an electronic notice, disclosure, contract, or other record and (2) whether a consumer’s electronic signature is the legal equivalent of a handwritten signature.

Consumer Banking and Payments Law: 11.1.3 E-Sign

The Electronic Signatures in Global and National Commerce Act14 (E-Sign) establishes the enforceability of electronic records and signatures as a matter of federal law and preempts state laws to the contrary.15 The E-Sign Act provides that—subject to a number of important conditions—(1) an electronic signature is the legal equivalent of a signature on a piece of paper, and (2) a contract, disclosure, o

Consumer Banking and Payments Law: 11.1.4 UETA

The Uniform Law Commission (formerly known as the National Conference of Commissioners on Uniform State Laws) approved and recommended for enactment the Uniform Electronic Transactions Act (UETA) in 1999,21 and all but one state has enacted either a uniform version of UETA or UETA with amendments.22 The most notable amendments are those that add E-Sign’s special consumer consent requirements that are otherwise missing from the uniform version of UETA.

Consumer Banking and Payments Law: 11.1.5 Absence of a Writing Requirement Means Neither UETA nor E-Sign Is Implicated

There is confusion about when UETA and E-Sign apply and when they are triggered. These laws apply only when another law or rule requires a paper writing or a “wet” signature. So, for example, if one buys a book online and charges the purchase to a credit card, neither UETA nor E-Sign is implicated, because there is no underlying legal requirement that the agreement to purchase a book be signed or recorded in a writing.

Consumer Banking and Payments Law: 11.1.6 Agency Interpretations of E-Sign

E-Sign provides that federal and state agencies can issue regulations, orders, or guidance interpreting E-Sign section 7001, which validates the legality of electronic records.40 However, a federal or state agency is not permitted to adopt any regulation, order, or guidance unless several conditions are met:

Consumer Banking and Payments Law: 11.2.2 Definition of “Electronic Signature”

Both E-Sign and UETA provide for the validity of an “electronic signature.”55 An “electronic signature” is defined as an “electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.”56 “Electronic” is defined in both E-Sign and UETA as: “relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.”

Consumer Banking and Payments Law: 11.2.3 Definition of “Transaction”

E-Sign and UETA both apply only to communications that relate to a “transaction.” If the exchange does not meet that definition, that can be sufficient to remove it from coverage under UETA (or E-Sign).63 “Transaction” is defined under both statutes as any action relating to the conduct of business, consumer, or commercial affairs between two or more persons, including the sale, lease, or other disposition of personal property—including goods and intangibles, and real property—and of services.

Consumer Banking and Payments Law: 11.2.6.1 General

While E-Sign applies to all federal writing requirements (such as consumer disclosures),76 it specifically excludes certain writings from its coverage, including important notices that are required to alert consumers to potential losses of important rights (such as cancellation of utility services, default on a mortgage contract or an eviction, or cancellation of health or life insurance).77

Consumer Arbitration Agreements: 3.5.5a State Law When Defendant Refuses to Arbitrate

A California statute provides significant rights to consumers and employees when the business they are in arbitration with fails to pay initial arbitration fees, or other costs assessed on the business during the arbitration.261 The statute provides that if the business does not pay the required fees and costs to initiate an arbitration proceeding within thirty days after their due date, the business is in default and waives its right to compel arbitration.

Truth in Lending: 4.4.7.2.1.2 Timing rules for loans applied for on or after October 3, 2015

Effective October 3, 2015, for loans to which the TILA-RESPA integrated disclosure rules apply, the early disclosure (“loan estimate”) requirements generally track those applicable to loans applied for on or after July 30, 2009, with some exceptions.359 Like the good faith estimate, the creditor must deliver (in person or electronically) or place the loan estimate form in the mail not later than the third business day after the creditor receives the consumer’s application.360 If the loan estimat

Truth in Lending: 4.4.7.4 TILA-RESPA Integrated Closing Disclosure

Effective October 3, 2015, the creditor must ensure that the consumer receives the closing disclosures no later than three business days before consummation for mortgage loans to which the TILA-RESPA integrated disclosure rules apply.432 In the context of the closing disclosure, “business day” is defined to mean all calendar days except Sundays and the legal public holidays.433 In a rescindable transaction, each consumer who has a right to rescind must be given a

Truth in Lending: 8.1.1 Introduction

This chapter discusses TILA’s rules for open-end credit that is secured by a residence, more often called a home equity line of credit or HELOC. HELOCs are governed by the general TILA rules that apply to all consumer credit as well as rules limited to open-end credit, including some rules specific to just open-end credit secured by a consumer’s principal dwelling.

Truth in Lending: 8.1.2 History

HELOCs became increasingly common after Congress passed the Home Equity Loan Consumer Protection Act in 1988,8 covering any agreement to open a HELOC plan or any application to open a HELOC after 1989.9 At that time less than six percent of homeowners had a HELOC. But, by 2007, that number had more than tripled.10

Truth in Lending: 8.1.3 Scope of HELOC Rules

Regulation Z’s HELOC rules apply to open-end credit plans that are secured by the consumer’s dwelling.19 The official interpretations emphasize that section 1026.40, which contains the disclosure rules, “is not limited to plans secured by the consumer’s principal dwelling.”20 The Act contains a special definition of “principal dwelling,” defining it to include any second or vacation home of the consumer, but only for purposes of sections 1647 and 1665b, whic