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Is the plaintiff's disclosure pure hearsay? Unsolicited or solicited disclosure?


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15 USC § 1637 - Open end consumer credit plans

 

 

 

  ( c ) Disclosure in credit and charge card applications and solicitations

 

 

 

1632 ( c )of this title:
 

(1) Direct mail applications and solicitations

(A) Information in tabular format

Any application to open a credit card account for any person under an open end consumer credit plan, or a solicitation to open such an account without requiring an application, that is mailed to consumers shall disclose the following information, subject to subsection (e)

 

 
(i) Annual percentage rates
(I) Each annual percentage rate applicable to extensions of credit under such credit plan.
(II) Where an extension of credit is subject to a variable rate, the fact that the rate is variable, the annual percentage rate in effect at the time of the mailing, and how the rate is determined.
(III) Where more than one rate applies, the range of balances to which each rate applies.
(ii) Annual and other fees
(I) Any annual fee, other periodic fee, or membership fee imposed for the issuance or availability of a credit card, including any account maintenance fee or other charge imposed based on activity or inactivity for the account during the billing cycle.
(II) Any minimum finance charge imposed for each period during which any extension of credit which is subject to a finance charge is outstanding.
(III) Any transaction charge imposed in connection with use of the card to purchase goods or services.
(iii) Grace period
(I) The date by which or the period within which any credit extended under such credit plan for purchases of goods or services must be repaid to avoid incurring a finance charge, and, if no such period is offered, such fact shall be clearly stated.
(II) If the length of such “grace period” varies, the card issuer may disclose the range of days in the grace period, the minimum number of days in the grace period, or the average number of days in the grace period, if the disclosure is identified as such.
(iv) Balance calculation method
(I) The name of the balance calculation method used in determining the balance on which the finance charge is computed if the method used has been defined by the Bureau, or a detailed explanation of the balance calculation method used if the method has not been so defined.
(II) In prescribing regulations to carry out this clause, the Bureau shall define and name not more than the 5 balance calculation methods determined by the Bureau to be the most commonly used methods.
Other information
In addition to the information required to be disclosed under subparagraph (A), each application or solicitation to which such subparagraph applies shall disclose clearly and conspicuously the following information, subject to subsections (e) and (f) of this section:
(i) Cash advance fee Any fee imposed for an extension of credit in the form of cash.
(ii) Late fee Any fee imposed for a late payment.
(iii) Over-the-limit fee Any fee imposed in connection with an extension of credit in excess of the amount of credit authorized to be extended with respect to such account.

(2) Telephone solicitations

(A) In general
In any telephone solicitation to open a credit card account for any person under an open end consumer credit plan, the person making the solicitation shall orally disclose the information described in paragraph (1)(A).
 
 
 
Regulation Z Part 226 Truth in Lending, Subpart B—Open-End Credit, states in pertinent part: § 226.12 Special credit card provisions.
(a) Issuance of credit cards. Regardless of the purpose for which a credit card is to be used, including business, commercial, or agricultural use, no credit card shall be issued to any person except--
(1) In response to an oral or written request or application for the card or
(2) As a renewal of, or substitute for, an accepted credit card.

 

 

 This brigns us to an alleged written agreement sent. not sent, sent with unspecified dates  and amendments from time to time.

 

 

For instance...

 

 

The problem with that alleged agreement is that it begs its own conclusion. As explained in Citibank (South Dakota), N.A. v. Wilson (Mo.App.2005), 160 S.W.3d 810, 812-813.


 

Plaintiff's attempts to invoke use and acceptance that is from South Dakota..

If an alleged contract is created in South Dakota ,and the national bank is from South Dakota , then plaintiff is in fact using SDCL § 54-11-9. In contractual choice-of-law situations, the law of the chosen state is applied to resolve the substantive issues in the case, while the law of the forum state will govern procedural matters. There is no language that SDCL § 54-11-9 is exportable to any other state.

 

As indicated at 12 USC 85 , plaintiff may export their interest rate, but no other statues are permissible for export. Plaintiff here attempts to circumvent South Dakota law and indicate they are using use and acceptance creates the written agreement in a written contract.

 

Plaintiff is required by federal law to use the interest law of their home state, which just happens to require a written agreement. "SDCL 54-3-1.1" specifically states that a written agreement is required in order to charge more than the schedule F interest rate of 15%".


 

12 USC 85 the National Banking Act supported by the landmark Marquette case, says national banks

must use the interest laws of their home state . This has been upheld by the South Dakota Supreme

Court. Marquette Bank of Minneapolis v. First of Omaha Service Corp.

 

 

 

So they have hearsay all over the place don't they?

 

 

 

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