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Fair Credit Reporting: 18.4.1.9 Limits on Sharing Account Number Information for Marketing Purposes

The only category of information that the GLBA protects from disclosure outright, without any action on the consumer’s part, is the highly potent information of account numbers and similar forms of access codes. Financial institutions are prohibited from disclosing these numbers or codes to any nonaffiliated third party for marketing use other than to a consumer reporting agency, even if the financial institution has given the consumer a conforming opt-out notice.218

Fair Credit Reporting: 18.4.1.10 The Gramm-Leach-Bliley Act’s Data Safeguard Requirements

The GLBA requires agencies subject to the Act to establish standards “relating to administrative, technical, and physical safeguards” to ensure the security and confidentiality of customer information, protect against any anticipated threats or hazards to those records, and protect against unauthorized access to those records.224 The banking regulators have issued Interagency Guidelines Establishing Information Security Standards.225

Fair Credit Reporting: 18.4.1.11 Impact on Fair Credit Reporting Act

The GLBA specifically provides that it does not “modify, limit, or supersede the operation of the Fair Credit Reporting Act.”230 The CFPB has issued regulations that recognize that financial institutions will design information-sharing policies to simultaneously comply with the GLBA and the FCRA.231 As is discussed above,232 the GLBA specifically exempts disclosures made to a CRA in accordance with the FCRA, and from a consumer report issued by a C

Fair Credit Reporting: 18.4.1.13 Limited Preemption of State Law

The GLBA expressly preserves the right of states to protect the privacy of consumers’ financial information. The Act provides that it supersedes state laws only to the extent that such laws are inconsistent with the Act,242 and specifically grants states permission to enact greater protections.243

Fair Credit Reporting: 18.4.1.14 Weaknesses of the Gramm-Leach-Bliley Act

While any privacy protection is welcome, the GLBA blocks only a very few of the many channels through which financial institutions distribute consumers’ financial information. This becomes apparent if the focus shifts from what the GLBA prohibits to what it permits. A financial institution can always disclose any consumer financial information to any of its affiliates.

Fair Credit Reporting: 18.4.2.1 Protections Related to Computers and the Internet

The federal Computer Fraud and Abuse Act criminalizes various forms of unauthorized use of federal government and financial institution computers.248 Although the Act prohibits the unauthorized, intentional access of a computer to obtain the records of a financial institution, a card issuer, or a CRA, the Act’s limited private right of action provision provides relief for a violation only in unusual circumstances.249 As a practical matter, such a plaintiff will likely have to show that the acces

Fair Credit Reporting: 18.4.2.2 The Financial Information Privacy Act

The Financial Information Privacy Act imposes criminal penalties on those who obtain customer information from a financial institution by pretext or through the use of an illegitimate document.259 The statute covers both communications with a financial institution’s agents and employees and with a customer of the institution, and further prohibits the solicitation of someone to obtain such information—attempting to reach those who hire the information brokers.260 The statute exempts information

Fair Credit Reporting: 18.4.2.4 The Driver’s Privacy Protection Act

The Driver’s Privacy Protection Act (the “DPPA”)269 restricts state departments of motor vehicles from freely trading the information they gather for motor vehicle licensing purposes. This data often includes name, address, Social Security number, certain medical information, height, weight, date of birth, gender, and photograph.

Consumer Banking and Payments Law: 6.6.4.2a Bonds and Permissible Investments

In every state that has a money transmitter law, transmitters are required to post a surety bond or deliver a comparable form of security to the state.387 The amount of money that must be posted differs by state and varies depending on the number of locations, the financial strength of the licensee, and other factors. The median minimum bond obligation is $75,000 and the median maximum bond requirement is $500,000.388

Truth in Lending: 11.2.4.2.5 Failure to timely credit a payment

TILA requires servicers and creditors to timely credit payments on home loans, credit cards, and other forms of open-end credit.145 There are a number of possible analogues for the injuries resulting from this violation. The violation could easily result in monetary harm, such as late fees, interest, and other charges. The injury is also analogous to the harm resulting from the common law torts of conversion and trespass to chattels.

Truth in Lending: 11.2.4.2.6 Violations related to the right to cancel a mortgage

Under TILA, certain mortgage borrowers are entitled to cancel their mortgage transaction within three days after receiving the material disclosures required by TILA and Regulation Z.153 If the disclosures—including notice of the right to cancel—are not timely provided, the right to cancel continues until they are provided, for up to three years.

Truth in Lending: 11.2.4.2.9 Confusion

Confusion is a likely downstream consequence of inaccurate disclosures. But the majority of courts have held that confusion is insufficient for standing.

Truth in Lending: 11.2.4.2.10 Emotional distress

Although the most common injuries from TILA violations will be monetary and informational, consumers may suffer emotional distress as well. There are strong reasons to treat emotional distress as a concrete harm that meets Article III’s requirements. The obvious common law analogue is the tort of intentional infliction of emotional distress.185 And the Restatement (Second) of Torts provides more generally: “Compensatory damages that may be awarded without proof of pecuniary loss include compensation . . .

Truth in Lending: 3.9.6.4.2 The CFPB TILA-RESPA Integrated Disclosure forms

In 2010, Congress directed the Consumer Financial Protection Bureau to create “a single, integrated disclosure” form combining the existing HUD-1 settlement statement and TILA disclosure form.1006 The CFPB finalized the forms and the accompanying regulations on December 31, 2013.1007 The new regime commenced on October 3, 2015 for loan applications received on or after that date.

Consumer Bankruptcy Law and Practice: 15.4.3.8.2.1 Loans related to government units and nonprofit institutions: § 523(a)(8)(A)(i)

The exception has had several different wordings and, as amended in 1990,528 covers an “educational benefit, overpayment or loan”529 that is “made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or a nonprofit institution.”530 This language covers most, if not all, student loans made or insured by nonprofit institutions or governmental units.

Consumer Bankruptcy Law and Practice: 15.4.3.8.2.2 Funds received as educational benefits, scholarships, or stipends; § 523(a)(8)(A)(ii)

The exception also applies to “an obligation to repay funds received as an educational benefit, scholarship, or stipend.”535 This language in subpart (A)(ii) is applicable to certain educational benefit grants involving funds received by the debtor or advanced on the debtor’s behalf.536 However, subpart (A)(ii) is not a “catch-all” provision designed to include every type of transaction that creates an educational benefit for a debtor.537 Important

Consumer Bankruptcy Law and Practice: 15.4.3.8.2.3 Private student loans; § 523(a)(8)(B)

The exception was broadened in 2005 to also include, in subpart (B), any other education loans from for-profit lenders if they are qualified education loans as defined in section 221(d)(1) of the Internal Revenue Code.541 The term “qualified education loan” is defined in section 221(d)(1) of the Internal Revenue Code to mean any indebtedness incurred by the taxpayer solely to pay qualified higher education expenses.542 Debtors who have incurred debt for education and other purposes may

Consumer Bankruptcy Law and Practice: Bibliography

Benjamin C. Ackerly, Tenants by the Entirety Property and the Bankruptcy Reform Act, 21 Wm. & Mary L. Rev. 701 (1980).

Alan M. Ahart, Whether to Grant a Hardship Discharge in Chapter 13, 87 Am. Bankr. L.J. 559 (2013).

Alan M. Ahart, The Liability of Property Exempted in Bankruptcy for Pre-Petition Domestic Support Obligations After BAPCPA: Debtors Beware, 81 Am. Bankr. L.J. 233 (2007).

Alan M. Ahart, The Inefficacy of the New Eviction Exceptions to the Automatic Stay, 80 Am. Bankr. L.J. 125 (2006).

Consumer Bankruptcy Law and Practice: 17.1.1.1 Current Status of Chapter 12

Chapter 12 has provided an opportunity for reorganization for a limited category of family farmers for almost forty years. In 2005, this opportunity was expanded to include a limited category of family fisherman. This chapter discusses chapter 12 reorganization, focusing primarily on the original focus of chapter 12—family farmers. This focus, however, can be applied as well to family fisherman.