Colorado § 5-5-202 - Civil liability for violation of disclosure provisions.

§ 5-5-202. Civil liability for violation of disclosure provisions.

(1) Except as otherwise provided in this section, a creditor who, in violation of the provisions on disclosure contained in section 5-3-101, other than the provisions on advertising, fails to disclose information to a person entitled to the information under this code is liable to that person in an amount equal to the sum of:

(a) Twice the amount of the finance charge in connection with the transaction, but the liability pursuant to this paragraph (a) shall be not less than one hundred dollars nor more than one thousand dollars; and

(b) In the case of a successful action to enforce the liability under paragraph (a) of this subsection (1), the costs of the action together with reasonable attorney fees as determined by the court.

(2) A creditor has no liability under this section if, within sixty days after discovering an error and prior to the institution of an action under this section or the receipt of written notice of the error, the creditor 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 a finance charge in excess of the amount or percentage rate actually disclosed.

(3) A creditor may not be held liable in any action brought under this section for a violation of this code if the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid the error.

(4) Any action that may be brought under this section against the original creditor in any credit transaction involving a security interest in land may be maintained against any subsequent assignee of the original creditor where the assignee, its subsidiaries, or affiliates were in a continuing business relationship with the original creditor either at the time the credit was extended or at the time of the assignment unless the assignment was involuntary or the assignee shows by a preponderance of evidence that it did not have reasonable grounds to believe that the original creditor was engaged in violations of this code and that it maintained procedures reasonably adapted to apprise it of the existence of the violations.

(5) No action pursuant to this section may be brought more than one year after the date of the occurrence of the violation.

(6) In this section, creditor includes a person who in the ordinary course of business regularly extends or arranges for the extension of credit or offers to arrange for the extension of credit.

(7) No provision of this section or section 5-5-201 imposing any liability shall apply to any act done or omitted in good faith in conformity with any rule, regulation, interpretation, or written response to a person pursuant to a written request on behalf of such identified person by the administrator or the board of governors of the federal reserve system pursuant to the federal "Truth in Lending Act" or federal "Consumer Leasing Act", notwithstanding that, after such act or omission has occurred, such rule, regulation, interpretation, or written response is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.

(8) The multiple failure to disclose to any person any information required under this code to be disclosed in connection with a single account under a revolving credit account, other single consumer credit sale, consumer loan, or other extension of consumer credit shall entitle the person to a single recovery under this section, but continued failure to disclose after recovery has been granted shall give rise to rights to additional recoveries.

Source: L. 2000: Entire article R&RE, p. 1241, § 1, effective July 1.

Editor's note: This section is similar to former § 5-5-203, as it existed prior to 2000.

Cross references: For the definitions and federal statutory cites of the "Truth in Lending Act" and the "Consumer Leasing Act", see § 5-1-302.

ANNOTATION

Annotator's note. Since § 5-5-202 is similar to § 5-5-203 as it existed prior to the 2000 repeal and reenactment of articles 1 to 3 and 4 to 6 of this title, relevant cases construing that provision have been included in the annotations to this section.

This section specifically authorized the award of reasonable attorney's fees "as determined by the court". Rachbach v. Cogswell, 547 F.2d 502 (10th Cir. 1976).

In an action under the Truth in Lending Act (15 U.S.C. § 1601 et seq.), even if the Colorado law were applicable to the issue of attorney's fees, where the record contained no showing of what were reasonable fees, the federal circuit court could not determine whether the trial court abused its discretion in denying those fees. Rachbach v. Cogswell, 547 F.2d 502 (10th Cir. 1976).

Borrowers not barred in demand for attorneys' fees. Where, by its continued breach of its duty, even after being ordered to take corrective action by the Colorado uniform consumer credit code administration, a lender delayed the borrowers' knowledge of the true 19.07 percent interest rate on the loan for a period of five and one-half months, to permit the lender to raise the statute of limitations to bar the borrowers would be unjust, and, therefore, the borrowers were not barred by the statute of limitations in their demand for attorneys' fees. Strader v. Beneficial Fin. Co., 191 Colo. 206, 551 P.2d 720 (1976).

Applied in Hull v. Bowest Corp., 649 P.2d 334 (Colo. App. 1982).