1. Clear and conspicuous. The clear and conspicuous standard requires that disclosures be in a reasonably understandable form. Except where otherwise provided, the standard does not require that disclosures be segregated from other material or located in any particular place on the disclosure statement, or that numerical amounts or percentages be in any particular type size. (But see comments 5a(a)(2)–1 and –2 for special rules concerning §226.5a disclosures for credit card applications and solicitations.) The standard does not prohibit:
• Adding to the required disclosures such items as contractual provisions, explanations of contract terms, state disclosures, and translations.
• Sending promotional material with the required disclosures.
• Using commonly accepted or readily understandable abbreviations (such as mo. for month or TX for Texas ) in making any required disclosures.
• Using codes or symbols such as APR (for annual percentage rate), FC (for finance charge), or Cr (for credit balance), so long as a legend or description of the code or symbol is provided on the disclosure statement.
2. Integrated document. The creditor may make both the initial disclosures (§226.6) and the periodic statement disclosures (§226.7) on more than one page, and use both the front and the reverse sides, so long as the pages constitute an integrated document. An integrated document would not include disclosure pages provided to the consumer at different times or disclosures interspersed on the same page with promotional material. An integrated document would include, for example:
• Multiple pages provided in the same envelope that cover related material and are folded together, numbered consecutively, or clearly labelled to show that they relate to one another.
• A brochure that contains disclosures and explanatory material about a range of services the creditor offers, such as credit, checking account, and electronic fund transfer features.
Paragraph 5(a)(2).
1. When disclosures must be more conspicuous. The term finance charge and annual percentage rate, when required to be used with a number, must be disclosed more conspicuously than other required disclosures, except in the cases provided in footnote 9. At the creditor's option, finance charge and annual percentage rate may also be disclosed more conspicuously than the other required disclosures even when the regulation does not so require. The following examples illustrate these rules:
• In disclosing the annual percentage rate as required by §226.6(a)(2), the term annual percentage rate is subject to the more conspicuous rule.
• In disclosing the amount of the finance charge, required by §226.7(f), the term finance charge is subject to the more conspicuous rule.
• Although neither finance charge nor annual percentage rate need be emphasized when used as part of general informational material or in textual descriptions of other terms, emphasis is permissible in such cases. For example, when the terms appear as part of the explanations required under §226.6(a) (3) and (4), they may be equally conspicuous as the disclosures required under §§226.6(a)(2) and 226.7(g).
2. Making disclosures more conspicuous. In disclosing the terms finance charge and annual percentage rate more conspicuously, only the words finance charge and annual percentage rate should be accentuated. For example, if the term total finance charge is used, only finance charge should be emphasized. The disclosures may be made more conspicuous by, for example:
• Capitalizing the words when other disclosures are printed in lower case.
• Putting them in bold print or a contrasting color.
• Underlining them.
• Setting them off with asterisks.
• Printing them in larger type.
3. Disclosure of figures—exception to more conspicuous rule. The terms annual percentage rate and finance charge need not be more conspicuous than figures (including, for example, numbers, percentages, and dollar signs).
5(b) Time of disclosures.
5(b)(1) Initial disclosures.
1. Disclosure before the first transaction. The rule that the initial disclosure statement must be furnished “before the first transaction” requires delivery of the initial disclosure statement before the consumer becomes obligated on the plan. For example, the initial disclosures must be given before the consumer makes the first purchase (such as when a consumer opens a credit plan and makes purchases contemporaneously at a retail store), receives the first advance, or pays any fees or charges under the plan other than an application fee or refundable membership fee (see below). The prohibition on the payment of fees other than application or refundable membership fees before initial disclosures are provided does not apply to home equity plans subject to §226.5b. See the commentary to §226.5b(h) regarding the collection of fees for home equity plans covered by §226.5b.
• If the consumer pays a membership fee before receiving the Truth in Lending disclosures, or the consumer agrees to the imposition of a membership fee at the time of application and the Truth in Lending disclosure statement is not given at that time, disclosures are timely as long as the consumer, after receiving the disclosures, can reject the plan. The creditor must refund the membership fee if it has been paid, or clear the account if it has been debited to the consumer's account.
• If the consumer receives a cash advance check at the same time the Truth in Lending disclosures are provided, disclosures are still timely if the consumer can, after receiving the disclosures, return the cash advance check to the creditor without obligation (for example, without paying finance charges).
• Initial disclosures need not be given before the imposition of an application fee under §226.4(c)(1).
• If, after receiving the disclosures, the consumer uses the account, pays a fee, or negotiates a cash advance check, the creditor may consider the account not rejected for purposes of this section.
2. Reactivation of suspended account. If an account is temporarily suspended (for example, because the consumer has exceeded a credit limit, or because a credit card is reported lost or stolen) and then is reactivated, no new initial disclosures are required.
3. Reopening closed account. If an account has been closed (for example, due to inactivity, cancellation, or expiration) and then is reopened, new initial disclosures are required. No new initial disclosures are required, however, when the account is closed merely to assign it a new number (for example, when a credit card is reported lost or stolen) and the new account then continues on the same terms.
4. Converting closed-end to open-end credit. If a closed-end credit transaction is converted to an open-end credit account under a written agreement with the consumer, the initial disclosures under §226.6 must be given before the consumer becomes obligated on the open-end credit plan. (See the commentary to §226.17 on converting open-end credit to closed-end credit.)
5. Balance transfers. A creditor that solicits the transfer by a consumer of outstanding balances from an existing account to a new open-end plan must comply with §226.6 before the balance transfer occurs. Card issuers that are subject to the requirements of §226.5a may establish procedures that comply with both sections in a single disclosure statement.
5(b)(2) Periodic statements.
Paragraph 5(b)(2)(i).
1. Periodic statements not required. Periodic statements need not be sent in the following cases:
• If the creditor adjusts an account balance so that at the end of the cycle the balance is less than $1—so long as no finance charge has been imposed on the account for that cycle.
• If a statement was returned as undeliverable. If a new address is provided, however, within a reasonable time before the creditor must send a statement, the creditor must resume sending statements. Receiving the address at least 20 days before the end of a cycle would be a reasonable amount of time to prepare the statement for that cycle. For example, if an address is received 22 days before the end of the June cycle, the creditor must send the periodic statement for the June cycle. (See §226.13(a)(7).)
2. Termination of credit privileges. When an open-end account is terminated without being converted to closed-end credit under a written agreement, the creditor must continue to provide periodic statements to those consumers entitled to receive them under §226.5(b)(2)((i) (for example, when an open-end credit plan ends and consumers are paying off outstanding balances) and must continue to follow all of the other open-end credit requirements and procedures in subpart B.
Paragraph 5(b)(2)(ii).
1. Reasonable procedures. A creditor is not required to determine the specific
date on which periodic statements are mailed or delivered to each individual consumer.
A creditor complies with § 226.5(b)(2)(ii) if it has adopted reasonable procedures
designed to ensure that periodic statements are mailed or delivered to consumers no later
than a certain number of days after the closing date of the billing cycle and adds that
number of days to the 21-day period required by § 226.5(b)(2)(ii) when determining the
payment due date and the date on which any grace period expires. For example, if a
creditor has adopted reasonable procedures designed to ensure that periodic statements
are mailed or delivered to consumers no later than three days after the closing date of the
billing cycle, the payment due date and the date on which any grace period expires must
be no less than 24 days after the closing date of the billing cycle.
2. Treating a payment as late for any purpose. Treating a payment as late for any
purpose includes increasing the annual percentage rate as a penalty, reporting the
consumer as delinquent to a credit reporting agency, or assessing a late fee or any other
fee based on the consumer’s failure to make a payment within a specified amount of time
or by a specified date. When an account is not eligible or ceases to be eligible for a grace
period, imposing a finance charge due to a periodic interest rate does not constitute
treating a payment as late for purposes of § 226.5(b)(2)(ii).
3. Payment due date. For purposes of § 226.5(b)(2)(ii), “payment due date”
means the date by which the creditor requires the consumer to make the required
minimum periodic payment in order to avoid being treated as late for any purpose, except
as set forth in paragraphs i. and ii. below.
i. Courtesy period following payment due date. Although the terms of the
account agreement may require that payment be made by a certain date, some creditors
provide an additional period of time after that date during which a late payment fee will
not be assessed. In some cases, this period is set forth in the account agreement while in
others it is provided as an informal policy or practice. Regardless, for purposes of
§ 226.5(b)(2)(ii), the payment due date is the due date according to the legal obligation
between the parties, not the end of the additional period of time. For example, if an
account agreement for a home equity plan subject to the requirements of § 226.5b
provides that payment is due on the first day of the month but a late payment fee will not
be assessed if the payment is received by the fifteenth day of the month, the payment due
date for purposes of § 226.5(b)(2)(ii) is the first day of the month. Similarly, if a
cardholder agreement provides that payment is due on the fifteenth day of the month but,
under the creditor’s informal “courtesy” period, a late payment fee will not be assessed if
the payment is received by the eighteenth day of the month, the payment due date for
purposes of § 226.5(b)(2)(ii) is the fifteenth day of the month.
ii. Laws affecting assessment of late payment and other fees. Some state or other
laws require that a certain number of days must elapse following a due date before a late
payment or other fee may be imposed. For example, assume that the account agreement
provides that payment is due on the fifteenth day of the month but, under state law, the
creditor is prohibited from assessing a late payment fee until the twenty-sixth day of the
month. For purposes of § 226.5(b)(2)(ii), the payment due date is the due date according
to the legal obligation between the parties (the fifteenth day of the month), not the date
before which state law prohibits the imposition of a late payment fee (the twenty-sixth
day of the month).
4. Definition of grace period. For purposes of § 226.5(b)(2)(ii), “grace period”
means a period within which any credit extended may be repaid without incurring a
finance charge due to a periodic interest rate. A deferred interest or similar promotional
program under which the consumer is not obligated to pay interest that accrues on a
balance if that balance is paid in full prior to the expiration of a specified period of time is
not a grace period for purposes of § 226.5(b)(2)(ii). Similarly, a courtesy period
following the payment due date is not a grace period for purposes of § 226.5(b)(2)(ii).
See comment 5(b)(2)(ii)-3.i.
5. Consumer request to pick up periodic statements. When a consumer initiates a
request, the creditor may permit, but may not require, the consumer to pick up periodic
statements. If the consumer wishes to pick up a statement, the statement must be made
available in accordance with § 226.5(b)(2)(ii).
6. Deferred-payment transactions. See comment 7-3.iv.
5(c) Basis of disclosures and use of estimates.
1. Legal obligation. The disclosures should reflect the credit terms to which the parties are legally bound at the time of giving the disclosures.
• The legal obligation is determined by applicable state or other law.
• The fact that a term or contract may later be deemed unenforceable by a court on the basis of equity or other grounds does not, by itself, mean that disclosures based on that term or contract did not reflect the legal obligation.
• The legal obligation normally is presumed to be contained in the contract that evidences the agreement. But this may be rebutted if another agreement between the parties legally modifies that contract.
2. Estimates—obtaining information. Disclosures may be estimated when the exact information is unknown at the time disclosures are made. Information is unknown if it is not reasonably available to the creditor at the time disclosures are made. The reasonably available standard requires that the creditor, acting in good faith, exercise due diligence in obtaining information. In using estimates, the creditor is not required to disclose the basis for the estimated figures, but may include such explanations as additional information. The creditor normally may rely on the representations of other parties in obtaining information. For example, the creditor might look to insurance companies for the cost of insurance.
3. Estimates—redisclosure. If the creditor makes estimated disclosures, redisclosure is not required for that consumer, even though more accurate information becomes available before the first transaction. For example, in an open-end plan to be secured by real estate, the creditor may estimate the appraisal fees to be charged; such an estimate might reasonably be based on the prevailing market rates for similar appraisals. If the exact appraisal fee is determinable after the estimate is furnished but before the consumer receives the first advance under the plan, no new disclosure is necessary.
4. Deferred payment transactions. See comment 7–3(iv).
5(d) Multiple creditors; multiple consumers.
1. Multiple creditors. Under §226.5(d):
• Creditors must choose which of them will make the disclosures.
• A single, complete set of disclosures must be provided, rather than partial disclosures from several creditors.
• All disclosures for the open-end credit plan must be given, even if the disclosing creditor would not otherwise have been obligated to make a particular disclosure.
• In some open-end credit programs involving multiple creditors, the consumer has the option (for example, at the end of a billing cycle) to pay creditor A directly or to transfer to creditor B all or part of the amount owing. If the consumer elects the latter option, the consumer no longer is obligated to creditor A for the specific amount(s) transferred. In such a case, creditor A and creditor B may send separate periodic statements that reflect the separate obligations owed to each.
2. Multiple consumers. Disclosures may be made to either obligor on a joint account. Disclosure responsibilities are not satisfied by giving disclosures to only a surety or guarantor for a principal obligor or to an authorized user. In rescindable transactions, however, separate disclosures must be given to each consumer who has the right to rescind under §226.15.
5(e) Effect of subsequent events.
1. Events causing inaccuracies. Inaccuracies in disclosures are not violations if attributable to events occurring after disclosures are made. For example, when the consumer fails to fulfill a prior commitment to keep the collateral insured and the creditor then provides the coverage and charges the consumer for it, such a change does not make the original disclosures inaccurate. The creditor may, however, be required to provide a new disclosure(s) under §226.9(c).
2. Use of inserts. When changes in a creditor's plan affect required disclosures, the creditor may use inserts with outdated disclosure forms. Any insert:
• Should clearly refer to the disclosure provision it replaces.
• Need not be physically attached or affixed to the basic disclosure statement.
• May be used only until the supply of outdated forms is exhausted.
References
Statute: Sections 121 (a) through (c), 122 (a) and (b), 124, 127 (a) and (b), and 163(a).
Other sections: Sections 226.6, 226.7, and 226.9.
Previous regulation: Sections 226.6 (a) and (c) through (g), and 226.7 (a) through (c).
1981 changes: Section 226.5 implements amendments to the act and reflects several simplifying changes to the regulation. The use of required terminology, except for finance charge and annual percentage rate, is no longer required. Type size requirements have been deleted. Initial and periodic statement disclosures may be multi-page, so long as they constitute an integrated statement. New rules are provided for the basis of disclosures and for the use of estimates. The rules for credit plans involving multiple creditors or multiple consumers now provide that only one creditor need make the disclosures and that the disclosures need be made to only one primarily liable consumer.
The following is the revision to this section of the Official Staff Interpretations, effective 7/1/2010:
Subpart B—Open–End Credit
Section 226.5—General Disclosure Requirements
5(a) Form of disclosures .
5(a)(1) General .
1. Clear and conspicuous standard . The “clear and conspicuous” standard generally requires that disclosures be in a reasonably understandable form. Disclosures for credit card applications and solicitations under §226.5a, highlighted account-opening disclosures under §226.6(b)(1), highlighted disclosure on checks that access a credit card under §226.9(b)(3); highlighted change-in-terms disclosures under §226.9(c)(2)(iii)(B), and highlighted disclosures when a rate is increased due to delinquency, default or for a penalty under §226.9(g)(3)(ii) must also be readily noticeable to the consumer.
2. Clear and conspicuous—reasonably understandable form . Except where otherwise provided, the reasonably understandable form standard does not require that disclosures be segregated from other material or located in any particular place on the disclosure statement, or that numerical amounts or percentages be in any particular type size. For disclosures that are given orally, the standard requires that they be given at a speed and volume sufficient for a consumer to hear and comprehend them. (See comment 5(b)(1)(ii)–1.) Except where otherwise provided, the standard does not prohibit:
i. Pluralizing required terminology (“finance charge” and “annual percentage rate”).
ii. Adding to the required disclosures such items as contractual provisions, explanations of contract terms, state disclosures, and translations.
iii. Sending promotional material with the required disclosures.
iv. Using commonly accepted or readily understandable abbreviations (such as “mo.” for “month” or “Tx.” for “Texas”) in making any required disclosures.
v. Using codes or symbols such as “APR” (for annual percentage rate), “FC” (for finance charge), or “Cr” (for credit balance), so long as a legend or description of the code or symbol is provided on the disclosure statement.
3. Clear and conspicuous—readily noticeable standard . To meet the readily noticeable standard, disclosures for credit card applications and solicitations under §226.5a, highlighted account-opening disclosures under §226.6(b)(1), highlighted disclosures on checks that access a credit card account under §226.9(b)(3), highlighted change-in-terms disclosures under §226.9(c)(2)(iii)(B), and highlighted disclosures when a rate is increased due to delinquency, default or penalty pricing under §226.9(g)(3)(ii) must be given in a minimum of 10-point font. (See special rule for font size requirements for the annual percentage rate for purchases under §§226.5a(b)(1) and 226.6(b)(2)(i).)
4. Integrated document . The creditor may make both the account-opening disclosures (§226.6) and the periodic-statement disclosures (§226.7) on more than one page, and use both the front and the reverse sides, except where otherwise indicated, so long as the pages constitute an integrated document. An integrated document would not include disclosure pages provided to the consumer at different times or disclosures interspersed on the same page with promotional material. An integrated document would include, for example:
i. Multiple pages provided in the same envelope that cover related material and are folded together, numbered consecutively, or clearly labeled to show that they relate to one another; or
ii. A brochure that contains disclosures and explanatory material about a range of services the creditor offers, such as credit, checking account, and electronic fund transfer features
5. Disclosures covered . Disclosures that must meet the “clear and conspicuous” standard include all required communications under this subpart. Therefore, disclosures made by a person other than the card issuer, such as disclosures of finance charges imposed at the time of honoring a consumer's credit card under §226.9(d), and notices, such as the correction notice required to be sent to the consumer under §226.13(e), must also be clear and conspicuous.
Paragraph 5(a)(1)(ii)(A) .
1. Electronic disclosures . Disclosures that need not be provided in writing under §226.5(a)(1)(ii)(A) may be provided in writing, orally, or in electronic form. If the consumer requests the service in electronic form, such as on the creditor's Web site, the specified disclosures may be provided in electronic form without regard to the consumer consent or other provisions of the Electronic Signatures in Global and National Commerce Act (E–Sign Act) (15 U.S.C. 7001 et seq. ).
Paragraph 5(a)(1)(iii) .
1. Disclosures not subject to E–Sign Act . See the commentary to §226.5(a)(1)(ii)(A) regarding disclosures (in addition to those specified under §226.5(a)(1)(iii)) that may be provided in electronic form without regard to the consumer consent or other provisions of the E–Sign Act.
5(a)(2) Terminology .
1. When disclosures must be more conspicuous . For home-equity plans subject to §226.5b, the terms finance charge and annual percentage rate , when required to be used with a number, must be disclosed more conspicuously than other required disclosures, except in the cases provided in §226.5(a)(2)(ii). At the creditor's option, finance charge and annual percentage rate may also be disclosed more conspicuously than the other required disclosures even when the regulation does not so require. The following examples illustrate these rules:
i. In disclosing the annual percentage rate as required by §226.6(a)(1)(ii), the term annual percentage rate is subject to the more conspicuous rule.
ii. In disclosing the amount of the finance charge, required by §226.7(a)(6)(i), the term finance charge is subject to the more conspicuous rule.
iii. Although neither finance charge nor annual percentage rate need be emphasized when used as part of general informational material or in textual descriptions of other terms, emphasis is permissible in such cases. For example, when the terms appear as part of the explanations required under §226.6(a)(1)(iii) and (a)(1)(iv), they may be equally conspicuous as the disclosures required under §§226.6(a)(1)(ii) and 226.7(a)(7).
2. Making disclosures more conspicuous . In disclosing the terms finance charge and annual percentage rate more conspicuously for home-equity plans subject to §226.5b, only the words finance charge and annual percentage rate should be accentuated. For example, if the term total finance charge is used, only finance charge should be emphasized. The disclosures may be made more conspicuous by, for example:
i. Capitalizing the words when other disclosures are printed in lower case.
ii. Putting them in bold print or a contrasting color.
iii. Underlining them.
iv. Setting them off with asterisks.
v. Printing them in larger type.
3. Disclosure of figures—exception to more conspicuous rule . For home-equity plans subject to §226.5b, the terms annual percentage rate and finance charge need not be more conspicuous than figures (including, for example, numbers, percentages, and dollar signs).
4. Consistent terminology . Language used in disclosures required in this subpart must be close enough in meaning to enable the consumer to relate the different disclosures; however, the language need not be identical.
5(b) Time of disclosures .
5(b)(1) Account-opening disclosures .
5(b)(1)(i) General rule .
1. Disclosure before the first transaction . When disclosures must be furnished “before the first transaction,” account-opening disclosures must be delivered before the consumer becomes obligated on the plan. Examples include:
i. Purchases . The consumer makes the first purchase, such as when a consumer opens a credit plan and makes purchases contemporaneously at a retail store, except when the consumer places a telephone call to make the purchase and opens the plan contemporaneously (see commentary to §226.5(b)(1)(iii) below).
ii. Advances . The consumer receives the first advance. If the consumer receives a cash advance check at the same time the account-opening disclosures are provided, disclosures are still timely if the consumer can, after receiving the disclosures, return the cash advance check to the creditor without obligation (for example, without paying finance charges).
2. Reactivation of suspended account . If an account is temporarily suspended (for example, because the consumer has exceeded a credit limit, or because a credit card is reported lost or stolen) and then is reactivated, no new account-opening disclosures are required.
3. Reopening closed account . If an account has been closed (for example, due to inactivity, cancellation, or expiration) and then is reopened, new account-opening disclosures are required. No new account-opening disclosures are required, however, when the account is closed merely to assign it a new number (for example, when a credit card is reported lost or stolen) and the “new” account then continues on the same terms.
4. Converting closed-end to open-end credit . If a closed-end credit transaction is converted to an open-end credit account under a written agreement with the consumer, account-opening disclosures under §226.6 must be given before the consumer becomes obligated on the open-end credit plan. (See the commentary to §226.17 on converting open-end credit to closed-end credit.)
5. Balance transfers . A creditor that solicits the transfer by a consumer of outstanding balances from an existing account to a new open-end plan must furnish the disclosures required by §226.6 so that the consumer has an opportunity, after receiving the disclosures, to contact the creditor before the balance is transferred and decline the transfer. For example, assume a consumer responds to a card issuer's solicitation for a credit card account subject to §226.5a that offers a range of balance transfer annual percentage rates, based on the consumer's creditworthiness. If the creditor opens an account for the consumer, the creditor would comply with the timing rules of this section by providing the consumer with the annual percentage rate (along with the fees and other required disclosures) that would apply to the balance transfer in time for the consumer to contact the creditor and withdraw the request. A creditor that permits consumers to withdraw the request by telephone has met this timing standard if the creditor does not effect the balance transfer until 10 days after the creditor has sent account-opening disclosures to the consumer, assuming the consumer has not contacted the creditor to withdraw the request. Card issuers that are subject to the requirements of §226.5a may establish procedures that comply with both §§226.5a and 226.6 in a single disclosure statement.
5(b)(1)(ii) Charges imposed as part of an open-end (not home-secured) plan .
1. Disclosing charges before the fee is imposed . Creditors may disclose charges imposed as part of an open-end (not home-secured) plan orally or in writing at any time before a consumer agrees to pay the fee or becomes obligated for the charge, unless the charge is specified under §226.6(b)(2). (Charges imposed as part of an open-end (not home-secured plan) that are not specified under §226.6(b)(2) may alternatively be disclosed in electronic form; see the commentary to §226.5(a)(1)(ii)(A).) Creditors must provide such disclosures at a time and in a manner that a consumer would be likely to notice them. For example, if a consumer telephones a card issuer to discuss a particular service, a creditor would meet the standard if the creditor clearly and conspicuously discloses the fee associated with the service that is the topic of the telephone call orally to the consumer. Similarly, a creditor providing marketing materials in writing to a consumer about a particular service would meet the standard if the creditor provided a clear and conspicuous written disclosure of the fee for that service in those same materials. A creditor that provides written materials to a consumer about a particular service but provides a fee disclosure for another service not promoted in such materials would not meet the standard. For example, if a creditor provided marketing materials promoting payment by Internet, but included the fee for a replacement card on such materials with no explanation, the creditor would not be disclosing the fee at a time and in a manner that the consumer would be likely to notice the fee.
5(b)(1)(iii) Telephone purchases .
1. Return policies . In order for creditors to provide disclosures in accordance with the timing requirements of this paragraph, consumers must be permitted to return merchandise purchased at the time the plan was established without paying mailing or return-shipment costs. Creditors may impose costs to return subsequent purchases of merchandise under the plan, or to return merchandise purchased by other means such as a credit card issued by another creditor. A reasonable return policy would be of sufficient duration that the consumer is likely to have received the disclosures and had sufficient time to make a decision about the financing plan before his or her right to return the goods expires. Return policies need not provide a right to return goods if the consumer consumes or damages the goods, or for installed appliances or fixtures, provided there is a reasonable repair or replacement policy to cover defective goods or installations. If the consumer chooses to reject the financing plan, creditors comply with the requirements of this paragraph by permitting the consumer to pay for the goods with another reasonable form of payment acceptable to the merchant and keep the goods although the creditor cannot require the consumer to do so.
5(b)(1)(iv) Membership fees .
1. Membership fees . See §226.5a(b)(2) and related commentary for guidance on fees for issuance or availability of a credit or charge card.
2. Rejecting the plan . If a consumer has paid or promised to pay a membership fee including an application fee excludable from the finance charge under §226.4(c)(1) before receiving account-opening disclosures, the consumer may, after receiving the disclosures, reject the plan and not be obligated for the membership fee, application fee, or any other fee or charge. A consumer who has received the disclosures and uses the account, or makes a payment on the account after receiving a billing statement, is deemed not to have rejected the plan.
3. Using the account . A consumer uses an account by obtaining an extension of credit after receiving the account-opening disclosures, such as by making a purchase or obtaining an advance. A consumer does not “use” the account by activating the account. A consumer also does not “use” the account when the creditor assesses fees on the account (such as start-up fees or fees associated with credit insurance or debt cancellation or suspension programs agreed to as a part of the application and before the consumer receives account-opening disclosures). For example, the consumer does not “use” the account when a creditor sends a billing statement with start-up fees, there is no other activity on the account, the consumer does not pay the fees, and the creditor subsequently assesses a late fee or interest on the unpaid fee balances. A consumer also does not “use” the account by paying an application fee excludable from the finance charge under §226.4(c)(1) prior to receiving the account-opening disclosures.
4. Home-equity plans . Creditors offering home-equity plans subject to the requirements of §226.5b are subject to the requirements of §226.5b(h) regarding the collection of fees.
5(b)(2) Periodic statements .
Paragraph 5(b)(2)(i) .
1. Periodic statements not required . Periodic statements need not be sent in the following cases:
i. If the creditor adjusts an account balance so that at the end of the cycle the balance is less than $1—so long as no finance charge has been imposed on the account for that cycle.
ii. If a statement was returned as undeliverable. If a new address is provided, however, within a reasonable time before the creditor must send a statement, the creditor must resume sending statements. Receiving the address at least 20 days before the end of a cycle would be a reasonable amount of time to prepare the statement for that cycle. For example, if an address is received 22 days before the end of the June cycle, the creditor must send the periodic statement for the June cycle. (See §226.13(a)(7).)
2. Termination of draw privileges . When a consumer's ability to draw on an open-end account is terminated without being converted to closed-end credit under a written agreement, the creditor must continue to provide periodic statements to those consumers entitled to receive them under §226.5(b)(2)(i), for example, when the draw period of an open-end credit plan ends and consumers are paying off outstanding balances according to the account agreement or under the terms of a workout agreement that is not converted to a closed-end transaction. In addition, creditors must continue to follow all of the other open-end credit requirements and procedures in subpart B.
3. Uncollectible accounts . An account is deemed uncollectible for purposes of §226.5(b)(2)(i) when a creditor has ceased collection efforts, either directly or through a third party.
4. Instituting collection proceedings . Creditors institute a delinquency collection proceeding by filing a court action or initiating an adjudicatory process with a third party. Assigning a debt to a debt collector or other third party would not constitute instituting a collection proceeding.
Paragraph 5(b)(2)(ii) .
1. 14-day rule . The 14-day rule for mailing or delivering periodic statements does not apply if charges (for example, transaction or activity charges) are imposed regardless of the timing of a periodic statement. The 14-day rule does apply, for example:
i. If current debits retroactively become subject to finance charges when the balance is not paid in full by a specified date.
ii. For open-end plans not subject to 12 CFR part 227, subpart C; 12 CFR part 535, subpart C; or 12 CFR part 706, subpart C, if charges other than finance charges will accrue when the consumer does not make timely payments (for example, late payment charges or charges for exceeding a credit limit). (For consumer credit card accounts subject to 12 CFR part 227, subpart C; 12 CFR part 535, subpart C; or 12 CFR part 706, subpart C, see 12 CFR 227.22, 12 CFR 535.22, or 12 CFR 706.22, as applicable.)
2. Deferred interest transactions. See comment 7(b)–1.iv.
Paragraph 5(b)(2)(iii).
1. Computer malfunction. The exceptions identified in §226.5(b)(2)(iii) of this section do not extend to the failure to provide a periodic statement because of computer malfunction.
2. Calling for periodic statements. When the consumer initiates a request, the creditor may permit, but may not require, consumers to pick up their periodic statements. If the consumer wishes to pick up the statement and the plan has a grace period, the statement must be made available in accordance with the 14-day rule.
5(c) Basis of disclosures and use of estimates.
1. Legal obligation. The disclosures should reflect the credit terms to which the parties are legally bound at the time of giving the disclosures.
i. The legal obligation is determined by applicable state or other law.
ii. The fact that a term or contract may later be deemed unenforceable by a court on the basis of equity or other grounds does not, by itself, mean that disclosures based on that term or contract did not reflect the legal obligation.
iii. The legal obligation normally is presumed to be contained in the contract that evidences the agreement. But this may be rebutted if another agreement between the parties legally modifies that contract.
2. Estimates—obtaining information. Disclosures may be estimated when the exact information is unknown at the time disclosures are made. Information is unknown if it is not reasonably available to the creditor at the time disclosures are made. The reasonably available standard requires that the creditor, acting in good faith, exercise due diligence in obtaining information. In using estimates, the creditor is not required to disclose the basis for the estimated figures, but may include such explanations as additional information. The creditor normally may rely on the representations of other parties in obtaining information. For example, the creditor might look to insurance companies for the cost of insurance.
3. Estimates—redisclosure. If the creditor makes estimated disclosures, redisclosure is not required for that consumer, even though more accurate information becomes available before the first transaction. For example, in an open-end plan to be secured by real estate, the creditor may estimate the appraisal fees to be charged; such an estimate might reasonably be based on the prevailing market rates for similar appraisals. If the exact appraisal fee is determinable after the estimate is furnished but before the consumer receives the first advance under the plan, no new disclosure is necessary.
5(d) Multiple creditors; multiple consumers.
1. Multiple creditors. Under §226.5(d):
i. Creditors must choose which of them will make the disclosures.
ii. A single, complete set of disclosures must be provided, rather than partial disclosures from several creditors.
iii. All disclosures for the open-end credit plan must be given, even if the disclosing creditor would not otherwise have been obligated to make a particular disclosure.
2. Multiple consumers. Disclosures may be made to either obligor on a joint account. Disclosure responsibilities are not satisfied by giving disclosures to only a surety or guarantor for a principal obligor or to an authorized user. In rescindable transactions, however, separate disclosures must be given to each consumer who has the right to rescind under §226.15.
3. Card issuer and person extending credit not the same person. Section 127(c)(4)(D) of the Truth in Lending Act (15 U.S.C. 1637(c)(4)(D)) contains rules pertaining to charge card issuers with plans that allow access to an open-end credit plan that is maintained by a person other than the charge card issuer. These rules are not implemented in Regulation Z (although they were formerly implemented in §226.5a(f)). However, the statutory provisions remain in effect and may be used by charge card issuers with plans meeting the specified criteria.
5(e) Effect of subsequent events.
1. Events causing inaccuracies. Inaccuracies in disclosures are not violations if attributable to events occurring after disclosures are made. For example, when the consumer fails to fulfill a prior commitment to keep the collateral insured and the creditor then provides the coverage and charges the consumer for it, such a change does not make the original disclosures inaccurate. The creditor may, however, be required to provide a new disclosure(s) under §226.9(c).
2. Use of inserts. When changes in a creditor's plan affect required disclosures, the creditor may use inserts with outdated disclosure forms. Any insert:
i. Should clearly refer to the disclosure provision it replaces.
ii. Need not be physically attached or affixed to the basic disclosure statement.
iii. May be used only until the supply of outdated forms is exhausted.
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