9-A §8-208. Civil liability - Maine Statutes

Title 9-A: MAINE CONSUMER CREDIT CODE

Article 8: TRUTH-IN-LENDING

Part 2: DISCLOSURE REQUIREMENTS

§8-208. Civil liability

1. Except as otherwise provided in this section, and except for transactions subject to section 8-206-E, any creditor who fails to comply with any requirement imposed under this Article, including any requirement under section 8-204, with respect to any person is liable to that person in an amount equal to the sum of:

A. Any actual damage sustained by such person as a result of the failure; [1983, c. 720, §23 (AMD).]

B. In an individual action:

(i) Twice the amount of any finance charge in connection with the transaction; or

(ii) In the case of a consumer lease, 25% of the total amount of monthly payments under the lease.

Liability under this paragraph may not be less than $100 nor greater than $1,000; except that in the case of a credit transaction not under an open-end credit plan that is secured by real property or a dwelling, liability under this paragraph may not be less than $400 nor greater than $4,000; [2009, c. 362, Pt. A, §15 (AMD); 2009, c. 362, Pt. A, §16 (AFF).]

C. In the case of any successful action to enforce the foregoing liability or in any action in which a person is determined to have a right of recision under section 8-204, the costs of the action, together with a reasonable attorney's fee as determined by the court; and [1981, c. 698, §21 (AMD).]

D. In the case of a class action, such amount as the court may allow, except that as to each member of the class no minimum recovery is applicable, and the total recovery for any class action or series of class actions arising out of the same failure to comply by the same creditor shall not be more than the lesser of $500,000 or 1% of the net worth of the creditor. In determining the amount of award in any class action, the court shall consider, among other relevant factors, the amount of any actual damages awarded, the frequency and persistence of failures of compliance by the creditor, the resources of the creditor, the number of persons adversely affected and the extent to which the creditor's failure of compliance was intentional. [1981, c. 698, §22 (NEW).]

[ 2009, c. 362, Pt. A, §15 (AMD); 2009, c. 362, Pt. A, §16 (AFF) .]

2. A creditor or assignee has no liability under this section, section 8-108 or section 8-109 for any failure to comply with any requirement imposed under this Article, if within 60 days after discovering an error, whether pursuant to a final written examination report or notice issued under section 8-108, subsection 3, or through the creditor's or assignee's own procedures and prior to the institution of an action under this section or the receipt of written notice of the error from the obligor, the creditor or assignee notifies the person concerned of the error and makes whatever adjustments in the appropriate account are necessary to assure that the person will not be required to pay an amount in excess of the charge actually disclosed, or the dollar equivalent of the annual percentage rate actually disclosed, whichever is lower.

[ 1981, c. 243, §25 (NEW) .]

3. A creditor or assignee may not be held liable in any action brought under this section or section 8-204 for a violation of this Article if the creditor or assignee shows by a perponderance 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. Examples of a bona fide error include, but are not limited to, clerical, calculation, computer malfunction and programming and printing errors, except that an error of legal judgment with respect to a person's obligations under this Article is not a bona fide error.

[ 1981, c. 243, §25 (NEW) .]

4. When there are multiple obligors in a consumer credit transaction, there shall be not more than one recovery of damages under subsection 1, paragraph B, for a violation of this Article.

[ 1981, c. 243, §25 (NEW) .]

5. Any action under this section may be brought in any court of competent jurisdiction, within one year from the date of the occurrence of the violation. This subsection does not bar a person from asserting a violation of this Article in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action.

[ 1981, c. 243, §25 (NEW) .]

6. The multiple failure to disclose to any person any information required under this Article to be disclosed in connection with a single account under an open-end consumer credit plan, other single consumer credit sale, consumer loan, consumer lease or other extension of consumer credit shall entitle the person to a single recovery under this section, but continued failure to disclose after a recovery has been granted shall give rise to rights to additional recoveries. This subsection does not bar any remedy permitted by section 8-204.

[ 1981, c. 243, §25 (NEW) .]

7. A person may not take any action to offset any amount for which a creditor or assignee is potentially liable to such person under subsection 1, paragraph B, against any amount owed by that person, unless the amount of the creditor's or assignee's liability under this Article has been determined by judgment of a court of competent jurisdiction in an action of which that person was a party. This subsection does not bar a consumer then in default on the obligation from asserting a violation of this Article as an original action, or as a defense or counterclaim to an action to collect amounts owed by the consumer brought by a person liable under this Article.

[ 1981, c. 243, §25 (NEW) .]

8. With respect to disclosure under sections 8-205 and 8-206, a creditor is liable under subsection 1, paragraphs B or D, only for the failure to comply with certain disclosure requirements.

A. In connection with the disclosures of section 8-205, subsections 1 and 2 of a creditor's only liability under subsection 1, paragraphs B or D, is for failing to comply with the requirements of section 8-204, section 8-205, subsection 1 or subsection 2, paragraph D, E, F, G, H, I or J. [1989, c. 472, §3 (AMD).]

B. In connection with the disclosures of section 8-206, a creditor's only liability determined under subsection 1, paragraph B or D is for failing to comply with the requirements of section 8-204 or section 8-206, subsection 1, paragraph B, D, E, F, G or J. [1995, c. 614, Pt. C, §1 (AMD).]

C. With respect to any failure to make disclosures required by this Article, liability shall be imposed only upon the creditor required to make disclosures, except as provided in section 8-209. [1981, c. 243, §25 (NEW).]

D. [1981, c. 698, §23 (RP).]

[ 1995, c. 614, Pt. C, §1 (AMD) .]

9. In connection with the disclosures referred to in section 8-205, subsections 3 or 4, a card issuer shall have a liability under this section only to a card holder who uses a credit or charge card or pays a fee described in section 8-205, subsection 3, paragraph A, subparagraph (i), division (b), subdivision (1) or section 8-205, subsection 3, paragraph D, subparagraph (i), division (a).

[ 1989, c. 472, §4 (NEW) .]

SECTION HISTORY

1981, c. 243, §§25,26 (NEW). 1981, c. 551, §3 (AMD). 1981, c. 698, §§21-23 (AMD). 1983, c. 720, §23 (AMD). 1989, c. 472, §§3,4 (AMD). RR 1995, c. 2, §18 (COR). 1995, c. 614, §§A12,C1 (AMD). 2007, c. 471, §13 (AMD). 2007, c. 471, §18 (AFF). 2009, c. 362, Pt. A, §15 (AMD). 2009, c. 362, Pt. A, §16 (AFF).