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Section 18036.5 Of Chapter 5. Sales And Escrows From California Health And Safety Code >> Division 13. >> Part 2. >> Chapter 5.
18036.5
. (a) As used in this section:
(1) "Act" means the federal Truth in Lending Act, as amended (15 U.S.C., Sec. 1601, et seq.).
(2) "Regulation Z" means any rule, regulation, or interpretation promulgated by the Board of Governors of the Federal Reserve System under the act and any interpretation or approval issued by an official or employee of the Federal Reserve System duly authorized by the board under the act to issue these interpretations or approvals.
(b) A conditional sale contract relating to a new or used manufactured home or mobilehome subject to registration under this part shall contain all the disclosures required by Regulation Z if Regulation Z otherwise applies to the transaction. Any disclosure violation corrected pursuant to subdivision (d) shall not be the basis of any recovery by the buyer.
(c) With respect to a violation which is not corrected as provided in subdivision (d), the seller shall be liable to the buyer in an amount equal to the sum of:
(1) Any actual damage sustained by such person as a result of the failure;
(2) (A) In the case of an individual action twice the amount of any finance charge in connection with the transaction, except that the liability under this subparagraph shall not be less than one hundred dollars ($100) or greater than one thousand dollars ($1,000); or
(B) 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 shall be applicable, and the total recovery under this subparagraph in any class action or series of class actions arising out of the same failure to comply by the same seller shall not be more than the lesser of five hundred thousand dollars ($500,000) or 1 per cent of the net worth of the seller; and
(3) In the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court. 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 seller, the resources of the seller, the number of persons adversely affected, and the extent to which the seller's failure of compliance was intentional. In connection with the disclosures referred to in Section 128 of the act, a seller shall have a liability determined under paragraph (2) of this subdivision only for failing to comply with the requirements of paragraph (2) (insofar as it requires a disclosure of the "amount financed"), (3), (4), (5), (6), or (9) of Section 128(a) of the act. With respect to any failure to make disclosures required under this section, liability shall be imposed only upon the seller required to make disclosure, except as provided in subdivision (k).
(d) A seller or assignee has no liability under this section for any failure to comply with any requirement imposed under this section if within 60 days after discovering an error, whether through the seller's or assignee's own procedures or pursuant to procedures permissible under the act, and prior to the institution of an action under this section or the receipt of written notice of the error from the buyer, the seller or assignee notifies the buyer concerned of the error and makes whatever adjustments as are necessary to assure that the buyer 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.
(e) A seller or assignee may not be held liable in any action brought under this section if the seller or assignee 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 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 section is not a bona fide error.
(f) When there are multiple buyers in a transaction, there shall be no more than one recovery of damages under paragraph (2) of subdivision (c).
(g) Any action under this section may be brought within one year from the date of the occurrence of the violation. This subdivision does not bar a person from asserting a violation of this section 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, except as otherwise provided by law. No action may be brought under this section if an action relating to the transaction or a defense thereto has been brought or asserted under the act.
(h) No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any rule, regulation, or interpretation thereof by the Board of Governors of the Federal Reserve System or in conformity with any interpretation or approval by an official or employee of the Federal Reserve System duly authorized by the Board of Governors of the Federal Reserve System to issue such interpretations or approvals under such procedures as the Board of Governors of the Federal Reserve System may prescribe therefor, notwithstanding that after such act or omission has occurred, such rule, regulation, interpretation, or approval is amended, rescinded or determined by judicial or other authority to be invalid for any reason.
(i) The multiple failure to disclose to any person any information required under this section shall entitle the buyer to a single recovery.
(j) A buyer may not take any action to offset any amount for which a seller or assignee is potentially liable to such buyer under paragraph (2) of subdivision (c) against any amount owed by such buyer, unless the amount of the seller's or assignee's liability under this section has been determined by judgment of a court of competent jurisdiction in an action to which such buyer was a party. This subdivision does not bar a buyer then in default on the obligation from asserting a violation of this section as an original action, or as a defense or counterclaim to an action to collect amounts owed by the buyer brought by a person liable under this title.
(k) Except as otherwise specifically provided in this section, any civil action for a violation of this section which may be brought against a seller may be maintained against any assignee of such seller only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, provided, however, that no civil action may be brought against such assignee for such violation if the assignment was involuntary. For purposes of this section, a violation apparent on the face of the disclosure statement includes, but is not limited to, (1) a disclosure which can be determined to be incomplete or inaccurate from the face of the disclosure statement or other documents assigned, or (2) a disclosure which does not use the terms required to be used in Regulation Z.
( l) In any action or proceeding by or against any assignee of the seller without knowledge to the contrary by the assignee when the assignee acquires the obligation, written acknowledgment of receipt by a buyer to whom disclosures are required to be given pursuant to this section shall be conclusive proof of the delivery thereof and, except as provided in subdivision (k), of compliance with this section. This subdivision does not affect the rights of the buyer in any action against the original seller.
(m) No final judgment shall be entered in an action brought pursuant to this section in favor of a buyer until the later of (1) the expiration of one year after the occurrence of the violation, or (2) the entry of judgment in an action for the violation brought under Section 130 of the act and filed within such one-year period. A buyer who has recovered any amount by way of judgment, settlement, or otherwise under Section 130 or 131 of the act shall not be entitled to any damages or other relief for the violation under this section.
(1) "Act" means the federal Truth in Lending Act, as amended (15 U.S.C., Sec. 1601, et seq.).
(2) "Regulation Z" means any rule, regulation, or interpretation promulgated by the Board of Governors of the Federal Reserve System under the act and any interpretation or approval issued by an official or employee of the Federal Reserve System duly authorized by the board under the act to issue these interpretations or approvals.
(b) A conditional sale contract relating to a new or used manufactured home or mobilehome subject to registration under this part shall contain all the disclosures required by Regulation Z if Regulation Z otherwise applies to the transaction. Any disclosure violation corrected pursuant to subdivision (d) shall not be the basis of any recovery by the buyer.
(c) With respect to a violation which is not corrected as provided in subdivision (d), the seller shall be liable to the buyer in an amount equal to the sum of:
(1) Any actual damage sustained by such person as a result of the failure;
(2) (A) In the case of an individual action twice the amount of any finance charge in connection with the transaction, except that the liability under this subparagraph shall not be less than one hundred dollars ($100) or greater than one thousand dollars ($1,000); or
(B) 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 shall be applicable, and the total recovery under this subparagraph in any class action or series of class actions arising out of the same failure to comply by the same seller shall not be more than the lesser of five hundred thousand dollars ($500,000) or 1 per cent of the net worth of the seller; and
(3) In the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court. 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 seller, the resources of the seller, the number of persons adversely affected, and the extent to which the seller's failure of compliance was intentional. In connection with the disclosures referred to in Section 128 of the act, a seller shall have a liability determined under paragraph (2) of this subdivision only for failing to comply with the requirements of paragraph (2) (insofar as it requires a disclosure of the "amount financed"), (3), (4), (5), (6), or (9) of Section 128(a) of the act. With respect to any failure to make disclosures required under this section, liability shall be imposed only upon the seller required to make disclosure, except as provided in subdivision (k).
(d) A seller or assignee has no liability under this section for any failure to comply with any requirement imposed under this section if within 60 days after discovering an error, whether through the seller's or assignee's own procedures or pursuant to procedures permissible under the act, and prior to the institution of an action under this section or the receipt of written notice of the error from the buyer, the seller or assignee notifies the buyer concerned of the error and makes whatever adjustments as are necessary to assure that the buyer 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.
(e) A seller or assignee may not be held liable in any action brought under this section if the seller or assignee 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 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 section is not a bona fide error.
(f) When there are multiple buyers in a transaction, there shall be no more than one recovery of damages under paragraph (2) of subdivision (c).
(g) Any action under this section may be brought within one year from the date of the occurrence of the violation. This subdivision does not bar a person from asserting a violation of this section 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, except as otherwise provided by law. No action may be brought under this section if an action relating to the transaction or a defense thereto has been brought or asserted under the act.
(h) No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any rule, regulation, or interpretation thereof by the Board of Governors of the Federal Reserve System or in conformity with any interpretation or approval by an official or employee of the Federal Reserve System duly authorized by the Board of Governors of the Federal Reserve System to issue such interpretations or approvals under such procedures as the Board of Governors of the Federal Reserve System may prescribe therefor, notwithstanding that after such act or omission has occurred, such rule, regulation, interpretation, or approval is amended, rescinded or determined by judicial or other authority to be invalid for any reason.
(i) The multiple failure to disclose to any person any information required under this section shall entitle the buyer to a single recovery.
(j) A buyer may not take any action to offset any amount for which a seller or assignee is potentially liable to such buyer under paragraph (2) of subdivision (c) against any amount owed by such buyer, unless the amount of the seller's or assignee's liability under this section has been determined by judgment of a court of competent jurisdiction in an action to which such buyer was a party. This subdivision does not bar a buyer then in default on the obligation from asserting a violation of this section as an original action, or as a defense or counterclaim to an action to collect amounts owed by the buyer brought by a person liable under this title.
(k) Except as otherwise specifically provided in this section, any civil action for a violation of this section which may be brought against a seller may be maintained against any assignee of such seller only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, provided, however, that no civil action may be brought against such assignee for such violation if the assignment was involuntary. For purposes of this section, a violation apparent on the face of the disclosure statement includes, but is not limited to, (1) a disclosure which can be determined to be incomplete or inaccurate from the face of the disclosure statement or other documents assigned, or (2) a disclosure which does not use the terms required to be used in Regulation Z.
( l) In any action or proceeding by or against any assignee of the seller without knowledge to the contrary by the assignee when the assignee acquires the obligation, written acknowledgment of receipt by a buyer to whom disclosures are required to be given pursuant to this section shall be conclusive proof of the delivery thereof and, except as provided in subdivision (k), of compliance with this section. This subdivision does not affect the rights of the buyer in any action against the original seller.
(m) No final judgment shall be entered in an action brought pursuant to this section in favor of a buyer until the later of (1) the expiration of one year after the occurrence of the violation, or (2) the entry of judgment in an action for the violation brought under Section 130 of the act and filed within such one-year period. A buyer who has recovered any amount by way of judgment, settlement, or otherwise under Section 130 or 131 of the act shall not be entitled to any damages or other relief for the violation under this section.
