[Federal Register Volume 63, Number 173 (Tuesday, September 8, 1998)]
[Notices]
[Pages 47495-47498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24057]


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FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL


Administrative Enforcement of the Truth in Lending Act--
Restitution

ACTION: Notice and request for comment.

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SUMMARY: The Consumer Compliance Task Force of the Federal Financial 
Institutions Examination Council (FFIEC) is issuing a revised Joint 
Statement of Policy on the Administrative Enforcement of the Truth in 
Lending Act--Restitution (Policy Statement). The Policy Statement 
issued by the FFIEC on July 21, 1980 must be revised to reflect the 
statutory changes to certain provisions of the Truth in Lending Act 
(TILA)

[[Page 47496]]

made by the Congress in 1995 and 1996. The staffs of the Office of the 
Comptroller of the Currency (OCC), the Federal Reserve Board (FRB), the 
Federal Deposit Insurance Corporation (FDIC), the Office of Thrift 
Supervision (OTS) and the National Credit Union Administration (NCUA) 
have prepared this revised Policy Statement to reflect the changes made 
to the TILA.

DATES: Public comment is invited on a continuing basis.

ADDRESSES: Questions and comments may be sent to Keith J. Todd, Acting 
Executive Secretary, Federal Financial Institutions Examination 
Council, 2100 Pennsylvania Avenue NW, Suite 200, Washington, DC 20037, 
or by facsimile transmission to (202) 634-6556.

FOR FURTHER INFORMATION CONTACT:
    OCC: Gene Ullrich, National Bank Examiner, Community and Consumer 
Policy, (202) 874-4866, Office of the Comptroller of the Currency, 250 
E Street SW, Washington, DC 20219.
    FRB: Anthony Iwuji, Review Examiner, Division of Consumer and 
Community Affairs, (202) 452-3946, Board of Governors of the Federal 
Reserve System, 20th Street and Constitution Avenue NW, Washington, DC 
20551.
    FDIC: James K. Baebel, Senior Review Examiner, Division of 
Compliance and Consumer Affairs, (202) 942-3086, Federal Deposit 
Insurance Corporation, 550 17th Street NW, PA-1730-7048, Washington, DC 
20429.
    OTS: Gary Jackson, Program Analyst, Compliance Policy, (202) 906-
5653, Office of Thrift Supervision, 1700 G Street NW, Washington, D.C. 
20552.
    NCUA: Jodee Wuerker, Program Officer, Office of Examination and 
Insurance, (703) 518-6375, National Credit Union Administration, 1775 
Duke Street, Alexandria, VA 22314-3428.

SUPPLEMENTARY INFORMATION:

Background

    The Truth in Lending Act Amendments of 1995 and the Economic Growth 
and Regulatory Paperwork Reduction Act of 1996 amended the TILA to 
incorporate new tolerances for disclosures of the finance charge and 
other disclosures affected by the finance charge on certain types of 
loans. These amendments specify that in closed-end consumer credit 
transactions secured by real property or a dwelling, the disclosed 
finance charge and other disclosures affected by the disclosed finance 
charge shall be treated as accurate if the amount disclosed as the 
finance charge is overstated, or is understated by no more than $100 
for transactions consummated on or after September 30, 1995, or $200 
for loans made before that date. The Federal Reserve Board proposed and 
adopted amendments to Regulation Z in 1996 to implement the statutory 
changes (12 CFR 226.18(d)(1), 226.18(d)(2), 226.22(a)(4) and 
226.22(a)(5)).
    The Policy Statement originally issued in 1980 was directly 
affected by the amendments to the TILA and the changes to Regulation Z 
in several respects. First, the changes to the tolerances affect the 
definition for understated annual percentage rates (APR) contained in 
the Policy Statement. Second, the amendments enhanced the agencies' 
abilities to make modifications to the amount or timing of restitution 
in the event that payment of restitution would adversely affect the 
capital position of the financial institution. In the main, the 
revisions to the Policy Statement make only those changes necessary to 
accommodate statutory requirements. Some other editorial changes were 
made, however, to reflect that some provisions of the original Policy 
Statement were no longer needed due to the passage of time.

Summary of Changes

    The revised Policy Statement drops the definition of ``Irregular 
Mortgage Transaction.'' The term is used in the Truth in Lending 
Simplification and Reform Act in the definition of an understated APR 
for loans secured by dwellings consummated prior to March 31, 1982. 
There is no longer any need for maintaining a separate definition of 
this term in the Policy Statement. A footnote has been included in the 
revised Policy Statement to indicate that, should loans consummated 
prior to March 31, 1982 having understated APRs be found, the original 
Policy Statement should be consulted for guidance.
    The definition of the term ``Understated APR'' in the Policy 
Statement has been modified to reflect revised tolerances for certain 
real estate secured transactions. The Truth in Lending Amendments of 
1995 and the Economic Growth and Regulatory Paperwork Reduction Act of 
1996 mandated these revisions. The Policy Statement has also been 
revised to consolidate six separate sub-parts to the definition of an 
``Understated APR'' into two sub-parts; (1) Loans having an 
amortization schedule of 10 years or less, and (2) loans with an 
amortization schedule of more than 10 years.
     Loans having an amortization schedule of 10 years or less 
will be provided a tolerance of 25 basis points (one-quarter of one 
percent). Loans that are secured by real estate or a dwelling will be 
provided the tolerances permitted by 12 CFR 226.22(a)(4) and (5).
     Loans having an amortization schedule of more than 10 
years will be provided a tolerance of 12.5 basis points (one-eighth of 
one percent) in the case of a regular transaction and 25 basis points 
(one-quarter of one percent) in the case of an irregular transaction. 
Loans that are secured by real estate or a dwelling will be provided 
the tolerances permitted by 12 CFR 226.22(a)(4) and (5).
    References to 15 U.S.C. 1606(c) contained in the body of the 
definition of an understated APR in the original Policy Statement have 
now been moved to footnote 3 in the revised Policy Statement. The 
change was purely editorial in nature. A new footnote 4 has been added 
to more specifically identify the sections of Regulation Z (12 CFR 
226.14(a) and 226.22(a)) that define the requirements for annual 
percentage rate disclosures.
    The ``Corrective Action Period'' section of the original Policy 
Statement contains time frames for determining which loans are subject 
to adjustment when violations are discovered. Previously, the agencies 
have collectively taken the position that the phrase ``immediately 
preceding examination'' in subsection 2.b. means the most recent 
examination that precedes the current examination in which compliance 
with Regulation Z and the Act was reviewed. However, the United States 
Court of Appeals for the 8th Circuit (First National Bank of Council 
Bluffs v. Office of the Comptroller of the Currency, 956 F.2d 1456 (8th 
Cir. 1992)), and the United States Court of Appeals for the Eleventh 
Circuit, (Consolidated Bank, N.A. v. United States Department of the 
Treasury, 118 F.3d 1461 (11th Cir. 1997)) determined that the phrase 
``immediately preceding examination'' should be read as referring to an 
examination of any type conducted immediately prior to the current 
examination, including examinations in which no review of compliance 
with Regulation Z or the Act is conducted. Consequently, the agencies, 
as a matter of policy, will now apply the decisions reached by the 
Eighth and Eleventh Circuit Courts in carrying out their enforcement 
responsibilities with respect to the meaning of ``immediately preceding 
examination.'' No changes to the Policy Statement are necessary to 
effect this policy position made by the agencies. Additional guidance 
will be provided to the examination staff for

[[Page 47497]]

each agency to advise on the proper period for corrective action when 
violations requiring adjustments are discovered.
    In the section of the Policy Statement entitled ``Violations 
Involving the Improper Disclosure of Credit Life, Accident, Health, or 
Loss of Income Insurance,'' the original Policy Statement had a 
separate provision detailing how certain violations involving credit 
life insurance disclosures would be treated until March 31, 1982. Since 
this time period has now expired that portion of the section has been 
deleted.
    The Economic Growth and Regulatory Paperwork Reduction Act of 1996 
provided additional flexibility for the regulatory agencies to require 
partial or delayed payments for reimbursements by an institution if the 
payment would cause the institution to become undercapitalized as that 
term is defined in section 38 of the Federal Deposit Insurance Act. 
Those provisions are now reflected in the section of the Policy 
Statement entitled ``Safety and Soundness.'' That section states that 
if the results of a full and immediate adjustment required under the 
Policy Statement would have a significant adverse impact on the capital 
position of the creditor, the agencies can permit partial adjustments 
to be made or permit partial payments over an extended period of time.
    The text of the revised Policy Statement follows:

Administrative Enforcement of the Truth in Lending Act--Restitution

Joint Statement of Policy

    The Depository Institutions Deregulation and Monetary Control Act 
of 1980 (Pub. L. 96-221) was enacted on March 31, 1980. Title VI of 
that Act, the Truth in Lending Simplification and Reform Act, amends 
the Truth in Lending Act, 15 U.S.C. 1601, et seq. Section 608 of Title 
VI, effective March 31, 1980, authorizes the federal Truth in Lending 
enforcement agencies to order creditors to make monetary and other 
adjustments to the accounts of consumers where an annual percentage 
rate (APR) or finance charge was inaccurately disclosed. It generally 
requires the agencies to order restitution when such disclosure errors 
resulted from a clear and consistent pattern or practice of violations, 
gross negligence, or a willful violation which was intended to mislead 
the person to whom the credit was extended. However, the Act does not 
preclude the agencies from ordering restitution for isolated disclosure 
errors.
    This policy guide summarizes and explains the restitution 
provisions of the Truth in Lending Act (Act), as amended. The material 
also explains corrective actions the financial regulatory agencies 
believe will be appropriate and generally intend to take in those 
situations in which the Act gives the agencies the authority to take 
equitable remedial action.
    The agencies anticipate that most financial institutions will 
voluntarily comply with the restitution provisions of the Act as part 
of the normal regulatory process. If a creditor does not voluntarily 
act to correct violations, the agencies will use their cease and desist 
authority to require correction pursuant to: 15 U.S.C. 1607 and 12 
U.S.C. 1818(b) in the cases of the Board of Governors of the Federal 
Reserve System, the Federal Deposit Insurance Corporation, the Office 
of the Comptroller of the Currency, and the Office of Thrift 
Supervision; and 15 U.S.C. 1607 and 12 U.S.C. 1786(e)(1) in the case of 
the National Credit Union Administration.

Restitution Provisions

Definitions

    Except as provided below, all definitions are those found in the 
Act and Regulation Z, 12 CFR part 226.
    1. ``Current examination'' means the most recent examination begun 
on or after March 31, 1980, in which compliance with Regulation Z was 
reviewed.
    2. ``Lump sum method'' means a method of reimbursement in which a 
cash payment equal to the total adjustment will be made to a consumer.
    3. ``Lump sum/payment reduction method'' means a method of 
reimbursement in which the total adjustment to a consumer will be made 
in two stages:
    a. A cash payment that fully adjusts the consumer's account up to 
the time of the cash payment; and,
    b. A reduction of the remaining payment amounts on the loan.
    4. ``Understated APR'' means a disclosed APR that is understated by 
more than the reimbursement tolerance provided in the Act,\1\ as 
follows:
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    \1\ 15 U.S.C. 1607(e)
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     For loans \2\ with an amortization schedule of 10 years or 
less, a disclosed APR which, when increased by the greater of the APR 
tolerance specified in the Act \3\ and Regulation Z \4\ or one-quarter 
of one percent, is less than the actual APR calculated under the 
Act.\5\
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    \2\ For loans consummated after March 31, 1982. For loans 
consummated prior to that date refer to the Policy Guide dated July 
21, 1980 (45 FR 48712) for additional guidance.
    \3\ 15 U.S.C. 1606(c)
    \4\ 12 CFR 226.14(a) and 226.22(a)
    \5\ If, however, the loan is closed-end credit secured by real 
estate or a dwelling and the APR is understated by more than one-
quarter of one percent, the APR will be considered accurate and not 
subject to reimbursement if: (1) The finance charge is understated 
but considered accurate in accordance with the Act and Regulation 
(i.e., the finance charge is not understated by more than $100 on 
loans made on or after 9/30/95, or $200 for loans made before that 
date); and (2) the APR is not understated by more than the dollar 
equivalent of the finance charge error and the understated APR 
resulted from the understated finance charge that is considered 
accurate.
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     For loans with an amortization schedule of more than 10 
years, a disclosed APR which, when increased by the APR tolerance 
specified in the Act and Regulation Z (i.e., one-quarter of one percent 
for irregular loans, one-eighth of one percent for all other closed-end 
loans) is less than the actual APR.\6\
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    \6\ If, however, the loan is closed-end credit secured by real 
estate or a dwelling and the APR is understated by more than one-
eighth of one percent if the transaction is not considered to be an 
irregular transaction as defined by the Regulation (12 CFR 
226.22(a)(3)) or one quarter of one percent if the transaction is 
irregular according to the definition, the APR will be considered 
accurate and no subject to reimbursement if: (1) The finance charge 
is understated but considered accurate according to the Actual 
Regulation (i.e., the finance charge is understated but considered 
accurate according to the Act and Regulation i.e., the finance 
charge is not understated by more than $100 on loans made on or 
after 9/30/95, or $200 for loans made before that date); and (2) the 
APR is not understated by more than the dollar equivalent of the 
finance charge error and the understated APR resulted from the 
understated finance charge that is considered accurate.
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    5. ``Understated finance charge'' means a disclosed finance charge 
which, when increased by the greater of the finance charge dollar 
tolerance specified in the Act and Regulation Z or a dollar tolerance 
that is generated by the corresponding APR reimbursement tolerance,\7\ 
is less than the finance charge calculated under the Act.
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    \7\ The finance charge tolerance for each loan will be generated 
by the corresponding APR tolerance applicable to that loan. For 
example, consider a single-payment loan with a one-year maturity 
that is subject to a one-quarter of one percent APR tolerance. If 
the amount financed is $5,000 and the finance charge is $912.50, the 
actual APR will be 18.25%. The finance charge generated by an APR of 
18% (applying the one-quarter of one percent APR tolerance to 
18.25%) for that loan would be $900. The difference between $912.50 
and $900 produces a numerical finance charge tolerance of $12.50. If 
the disclosed finance charge is not understated by more than $12.50, 
reimbursement would not be ordered.
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De Minimis Rule

    If the amount of adjustment on an account is less than $1.00, no 
restitution will be ordered. However, the agencies may require a 
creditor to make any adjustments of less than $1.00 by paying into the 
United States Treasury, if more than one year has elapsed since the 
date of the violation.

[[Page 47498]]

Corrective Action Period

    1. Open-end credit transactions will be subject to an adjustment if 
the violation occurred within the two-year period preceding the date of 
the current examination.
    2. Closed-end credit transactions will be subject to an adjustment 
if the violation resulted from a clear and consistent pattern or 
practice or gross negligence where:
    a. There is an understated APR on a loan which originated between 
January 1, 1977 and March 31, 1980.
    b. There is an understated APR or understated finance charge, and 
the practice giving rise to the violation is identified during the 
current examination. Loans containing the violation which were 
consummated since the date of the immediately preceding examination are 
subject to an adjustment.
    c. There is an understated APR or understated finance charge, the 
practice giving rise to the violation was identified during a prior 
examination and the practice is not corrected by the date of the 
current examination. Loans containing the violation which were 
consummated since the creditor was first notified in writing of the 
violation are subject to an adjustment. (Prior examinations include any 
examinations conducted since July 1, 1969).
    3. Each closed-end credit transaction, consummated since July 1, 
1969, and containing a willful violation intended to mislead the 
consumer is subject to an adjustment.
    4. For terminated loans subject to 2, above, an adjustment will not 
be ordered if the violation occurred in a transaction consummated more 
than two years prior to the date of the current examination.

Calculating the Adjustment

    Consumers will not be required to pay any amount in excess of the 
finance charge or dollar equivalent of the APR actually disclosed on 
transactions involving:
    1. Understated APR violations on transactions consummated between 
January 1, 1977 and March 31, 1980, or
    2. Willful violations which were intended to mislead the consumer.
    On all other transactions, applicable tolerances provided in the 
definitions of understated APR and understated finance charge may be 
applied in calculating the amount of adjustment to the consumer's 
account.

Methods of Adjustment

    The consumer's account will be adjusted using the lump sum method 
or the lump sum/payment reduction method, at the discretion of the 
creditor.

Violations Involving the Non-Disclosure of the APR or Finance Charge

    1. In cases where an APR was required to be disclosed but was not, 
the disclosed APR shall be considered to be the contract rate, if 
disclosed on the note or the Truth in Lending disclosure statement.
    2. In cases where an APR was required to be disclosed but was not, 
and no contract rate was disclosed, consumers will not be required to 
pay an amount greater than the actual APR reduced by one-quarter of one 
percentage point, in the case of first lien mortgage transactions, and 
by one percentage point in all other transactions.
    3. In cases where a finance charge was not disclosed, no adjustment 
will be ordered.

Violations Involving the Improper Disclosure of Credit Life, Accident, 
Health, or Loss of Income Insurance

    1. If the creditor has not disclosed to the consumer in writing 
that credit life, accident, health, or loss of income insurance is 
optional, the insurance shall be treated as having been required and 
improperly excluded from the finance charge. An adjustment will be 
ordered if it results in an understated APR or finance charge. The 
insurance will remain in effect for the remainder of its term.
    2. If the creditor has disclosed to the consumer in writing that 
credit life, accident, health, or loss of income insurance is optional, 
but there is either no signed insurance option or no disclosure of the 
cost of the insurance, the insurance shall be treated as having been 
required and improperly excluded from the finance charge. An adjustment 
will be ordered if it results in an understated APR or finance charge. 
The insurance will remain in effect for the remainder of its term.

Special Disclosures

    Adjustments will not be required for violations involving the 
disclosures required by sections 106(c) and (d) of the Act, (15 U.S.C. 
1605(c) and (d)).

Obvious Errors

    If an APR was disclosed correctly, but the finance charge required 
to be disclosed was understated, or if the finance charge was disclosed 
correctly, but the APR required to be disclosed was understated, no 
adjustment will be required if the error involved a disclosed value 
which was 10 percent or less of the amount that should have been 
disclosed.

Agency Discretion

    Adjustments will not be required if the agency determines that the 
disclosure error resulted from any unique circumstances involving a 
clearly technical and non-substantive disclosure violation which did 
not adversely affect information provided to the consumer and which did 
not mislead or otherwise deceive the consumer.

Safety and Soundness

    In some cases, an agency may order, in place of an immediate, full 
adjustment, either a partial adjustment, or a full adjustment in 
partial payments over an extended time period that the agency considers 
reasonable. The agency may do so if it determines that (1) the full, 
immediate adjustment would have a significantly adverse impact upon the 
safety and soundness of the creditor, and (2) a partial adjustment, or 
making partial payments over an extended period of time, is necessary 
to avoid causing the creditor to become undercapitalized.\8\
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    \8\ The term ``undercapitalized'' will have the meaning as 
defined in section 38 of the Federal Deposit Insurance Act (12 
U.S.C. 1831o).
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Exemption from Restitution Orders

    A creditor will not be subject to an order to make an adjustment if 
within 60 days after discovering a disclosure error, whether pursuant 
to a final written examination report or through the creditor's own 
procedures, the creditor notifies the person concerned of the error and 
adjusts the account to ensure that such person will not be required to 
pay a finance charge in excess of that actually disclosed or the dollar 
equivalent of the APR disclosed, whichever is lower. This 60-day period 
for correction of disclosure errors is unrelated to the provisions of 
the civil liability section of the Act.

    Dated: September 2, 1998.
Keith J. Todd,
Acting Executive Secretary, Federal Financial Institutions Examination 
Council.
[FR Doc. 98-24057 Filed 9-4-98; 8:45 am]
BILLING CODES FRB: 6210-01-P 20%, OTS: 6720-01-P 20%, FDIC: 6714-01-P 
20%, OCC: 4810-33-P 20%, NCUA: 7535-01-P 20%