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United States Code (Last Updated: May 24, 2014) |
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Title 12. BANKS AND BANKING |
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Chapter 53. WALL STREET REFORM AND CONSUMER PROTECTION |
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SubChapter V. BUREAU OF CONSUMER FINANCIAL PROTECTION |
§ 5481. Definitions
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Except as otherwise provided in this title, Protection Act of 1998 (12 U.S.C. 4901 et seq.); (H) the Fair Debt Collection Practices Act (15 U.S.C. 1692 et seq.); (I) subsections (b) through (f) of section 43 of the Federal Deposit Insurance Act (12 U.S.C. 1831t(c)[(b)]–(f)); (J) sections 502 through 509 of the Gramm-Leach-Bliley Act (15 U.S.C. 6802–6809) except for section 505 [15 U.S.C. 6805] as it applies to section 501(b) [15 U.S.C. 6801(b)]; (K) the Home Mortgage Disclosure Act of 1975 (12 U.S.C. 2801 et seq.); (L) the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. 1601 note); (M) the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. 2601 et seq.); (N) the S.A.F.E. Mortgage Licensing Act of 2008 (12 U.S.C. 5101 et seq.); (O) the Truth in Lending Act (15 U.S.C. 1601 et seq.); (P) the Truth in Savings Act (12 U.S.C. 4301 et seq.); (Q) section 626 of the Omnibus Appropriations Act, 2009 (Public Law 111–8) [12 U.S.C. 5538]; and (R) the Interstate Land Sales Full Disclosure Act (15 U.S.C. 1701). (13) Fair lending The term “fair lending” means fair, equitable, and nondiscriminatory access to credit for consumers.
(14) Federal consumer financial law The term “Federal consumer financial law” means the provisions of this title,1 the enumerated consumer laws, the laws for which authorities are transferred under subtitles F and H, and any rule or order prescribed by the Bureau under this title,1 an enumerated consumer law, or pursuant to the authorities transferred under subtitles F and H. The term does not include the Federal Trade Commission Act [15 U.S.C. 41 et seq.].
(15) Financial product or service (A) In general The term “financial product or service” means— (i) extending credit and servicing loans, including acquiring, purchasing, selling, brokering, or other extensions of credit (other than solely extending commercial credit to a person who originates consumer credit transactions); (ii) extending or brokering leases of personal or real property that are the functional equivalent of purchase finance arrangements, if— (I) the lease is on a non-operating basis; (II) the initial term of the lease is at least 90 days; and (III) in the case of a lease involving real property, at the inception of the initial lease, the transaction is intended to result in ownership of the leased property to be transferred to the lessee, subject to standards prescribed by the Bureau; (iii) providing real estate settlement services, except such services excluded under subparagraph (C), or performing appraisals of real estate or personal property; (iv) engaging in deposit-taking activities, transmitting or exchanging funds, or otherwise acting as a custodian of funds or any financial instrument for use by or on behalf of a consumer; (v) selling, providing, or issuing stored value or payment instruments, except that, in the case of a sale of, or transaction to reload, stored value, only if the seller exercises substantial control over the terms or conditions of the stored value provided to the consumer where, for purposes of this clause— (I) a seller shall not be found to exercise substantial control over the terms or conditions of the stored value if the seller is not a party to the contract with the consumer for the stored value product, and another person is principally responsible for establishing the terms or conditions of the stored value; and (II) advertising the nonfinancial goods or services of the seller on the stored value card or device is not in itself an exercise of substantial control over the terms or conditions; (vi) providing check cashing, check collection, or check guaranty services; (vii) providing payments or other financial data processing products or services to a consumer by any technological means, including processing or storing financial or banking data for any payment instrument, or through any payments systems or network used for processing payments data, including payments made through an online banking system or mobile telecommunications network, except that a person shall not be deemed to be a covered person with respect to financial data processing solely because the person— (I) is a merchant, retailer, or seller of any nonfinancial good or service who engages in financial data processing by transmitting or storing payments data about a consumer exclusively for purpose of initiating payments instructions by the consumer to pay such person for the purchase of, or to complete a commercial transaction for, such nonfinancial good or service sold directly by such person to the consumer; or (II) provides access to a host server to a person for purposes of enabling that person to establish and maintain a website; (viii) providing financial advisory services (other than services relating to securities provided by a person regulated by the Commission or a person regulated by a State securities Commission, but only to the extent that such person acts in a regulated capacity) to consumers on individual financial matters or relating to proprietary financial products or services (other than by publishing any bona fide newspaper, news magazine, or business or financial publication of general and regular circulation, including publishing market data, news, or data analytics or investment information or recommendations that are not tailored to the individual needs of a particular consumer), including— (I) providing credit counseling to any consumer; and (II) providing services to assist a consumer with debt management or debt settlement, modifying the terms of any extension of credit, or avoiding foreclosure; (ix) collecting, analyzing, maintaining, or providing consumer report information or other account information, including information relating to the credit history of consumers, used or expected to be used in connection with any decision regarding the offering or provision of a consumer financial product or service, except to the extent that— (I) a person— (aa) collects, analyzes, or maintains information that relates solely to the transactions between a consumer and such person; (bb) provides the information described in item (aa) to an affiliate of such person; or (cc) provides information that is used or expected to be used solely in any decision regarding the offering or provision of a product or service that is not a consumer financial product or service, including a decision for employment, government licensing, or a residential lease or tenancy involving a consumer; and (II) the information described in subclause (I)(aa) is not used by such person or affiliate in connection with any decision regarding the offering or provision of a consumer financial product or service to the consumer, other than credit described in section 5517(a)(2)(A) of this title; (x) collecting debt related to any consumer financial product or service; and (xi) such other financial product or service as may be defined by the Bureau, by regulation, for purposes of this title,1 if the Bureau finds that such financial product or service is— (I) entered into or conducted as a subterfuge or with a purpose to evade any Federal consumer financial law; or (II) permissible for a bank or for a financial holding company to offer or to provide under any provision of a Federal law or regulation applicable to a bank or a financial holding company, and has, or likely will have, a material impact on consumers. (B) Rule of construction (i) In general For purposes of subparagraph (A)(xi)(II), and subject to clause (ii) of this subparagraph, the following activities provided to a covered person shall not, for purposes of this title,1 be considered incidental or complementary to a financial activity permissible for a financial holding company to engage in under any provision of a Federal law or regulation applicable to a financial holding company: (I) Providing information products or services to a covered person for identity authentication. (II) Providing information products or services for fraud or identify theft detection, prevention, or investigation. (III) Providing document retrieval or delivery services. (IV) Providing public records information retrieval. (V) Providing information products or services for anti-money laundering activities. (ii) Limitation Nothing in clause (i) may be construed as modifying or limiting the authority of the Bureau to exercise any— (I) examination or enforcement powers authority under this title 1 with respect to a covered person or service provider engaging in an activity described in subparagraph (A)(ix); or (II) powers authorized by this title 1 to prescribe rules, issue orders, or take other actions under any enumerated consumer law or law for which the authorities are transferred under subtitle F or H. (C) Exclusions The term “financial product or service” does not include— (i) the business of insurance; or (ii) electronic conduit services. (16) Foreign exchange The term “foreign exchange” means the exchange, for compensation, of currency of the United States or of a foreign government for currency of another government.
(17) Insured credit union The term “insured credit union” has the same meaning as in section 1752 of this title.
(18) Payment instrument The term “payment instrument” means a check, draft, warrant, money order, traveler’s check, electronic instrument, or other instrument, payment of funds, or monetary value (other than currency).
(19) Person The term “person” means an individual, partnership, company, corporation, association (incorporated or unincorporated), trust, estate, cooperative organization, or other entity.
(20) Person regulated by the Commodity Futures Trading Commission The term “person regulated by the Commodity Futures Trading Commission” means any person that is registered, or required by statute or regulation to be registered, with the Commodity Futures Trading Commission, but only to the extent that the activities of such person are subject to the jurisdiction of the Commodity Futures Trading Commission under the Commodity Exchange Act [7 U.S.C. 1 et seq.].
(21) Person regulated by the Commission The term “person regulated by the Commission” means a person who is— (A) a broker or dealer that is required to be registered under the Securities Exchange Act of 1934 [15 U.S.C. 78a et seq.]; (B) an investment adviser that is registered under the Investment Advisers Act of 1940 [15 U.S.C. 80b–1 et seq.]; (C) an investment company that is required to be registered under the Investment Company Act of 1940 [15 U.S.C. 80a–1 et seq.], and any company that has elected to be regulated as a business development company under that Act; (D) a national securities exchange that is required to be registered under the Securities Exchange Act of 1934; (E) a transfer agent that is required to be registered under the Securities Exchange Act of 1934; (F) a clearing corporation that is required to be registered under the Securities Exchange Act of 1934; (G) any self-regulatory organization that is required to be registered with the Commission; (H) any nationally recognized statistical rating organization that is required to be registered with the Commission; (I) any securities information processor that is required to be registered with the Commission; (J) any municipal securities dealer that is required to be registered with the Commission; (K) any other person that is required to be registered with the Commission under the Securities Exchange Act of 1934; and (L) any employee, agent, or contractor acting on behalf of, registered with, or providing services to, any person described in any of subparagraphs (A) through (K), but only to the extent that any person described in any of subparagraphs (A) through (K), or the employee, agent, or contractor of such person, acts in a regulated capacity. (22) Person regulated by a State insurance regulator The term “person regulated by a State insurance regulator” means any person that is engaged in the business of insurance and subject to regulation by any State insurance regulator, but only to the extent that such person acts in such capacity.
(23) Person that performs income tax preparation activities for consumers The term “person that performs income tax preparation activities for consumers” means— (A) any tax return preparer (as defined in section 7701(a)(36) of title 26), regardless of whether compensated, but only to the extent that the person acts in such capacity; (B) any person regulated by the Secretary under section 330 of title 31, but only to the extent that the person acts in such capacity; and (C) any authorized IRS e-file Providers (as defined for purposes of section 7216 of title 26), but only to the extent that the person acts in such capacity. (24) Prudential regulator The term “prudential regulator” means— (A) in the case of an insured depository institution or depository institution holding company (as defined in section 1813 of this title), or subsidiary of such institution or company, the appropriate Federal banking agency, as that term is defined in section 1813 of this title; and (B) in the case of an insured credit union, the National Credit Union Administration. (25) Related person The term “related person”— (A) shall apply only with respect to a covered person that is not a bank holding company (as that term is defined in section 1841 of this title), credit union, or depository institution; (B) shall be deemed to mean a covered person for all purposes of any provision of Federal consumer financial law; and (C) means— (i) any director, officer, or employee charged with managerial responsibility for, or controlling shareholder of, or agent for, such covered person; (ii) any shareholder, consultant, joint venture partner, or other person, as determined by the Bureau (by rule or on a case-by-case basis) who materially participates in the conduct of the affairs of such covered person; and (iii) any independent contractor (including any attorney, appraiser, or accountant) who knowingly or recklessly participates in any— (I) violation of any provision of law or regulation; or (II) breach of a fiduciary duty. (26) Service provider (A) In general The term “service provider” means any person that provides a material service to a covered person in connection with the offering or provision by such covered person of a consumer financial product or service, including a person that— (i) participates in designing, operating, or maintaining the consumer financial product or service; or (ii) processes transactions relating to the consumer financial product or service (other than unknowingly or incidentally transmitting or processing financial data in a manner that such data is undifferentiated from other types of data of the same form as the person transmits or processes). (B) Exceptions The term “service provider” does not include a person solely by virtue of such person offering or providing to a covered person— (i) a support service of a type provided to businesses generally or a similar ministerial service; or (ii) time or space for an advertisement for a consumer financial product or service through print, newspaper, or electronic media. (C) Rule of construction A person that is a service provider shall be deemed to be a covered person to the extent that such person engages in the offering or provision of its own consumer financial product or service.
(27) State The term “State” means any State, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, American Samoa, or the United States Virgin Islands or any federally recognized Indian tribe, as defined by the Secretary of the Interior under section 479a–1(a) of title 25.
(28) Stored value (A) In general The term “stored value” means funds or monetary value represented in any electronic format, whether or not specially encrypted, and stored or capable of storage on electronic media in such a way as to be retrievable and transferred electronically, and includes a prepaid debit card or product, or any other similar product, regardless of whether the amount of the funds or monetary value may be increased or reloaded.
(B) Exclusion Notwithstanding subparagraph (A), the term “stored value” does not include a special purpose card or certificate, which shall be defined for purposes of this paragraph as funds or monetary value represented in any electronic format, whether or not specially encrypted, that is— (i) issued by a merchant, retailer, or other seller of nonfinancial goods or services; (ii) redeemable only for transactions with the merchant, retailer, or seller of nonfinancial goods or services or with an affiliate of such person, which affiliate itself is a merchant, retailer, or seller of nonfinancial goods or services; (iii) issued in a specified amount that, except in the case of a card or product used solely for telephone services, may not be increased or reloaded; (iv) purchased on a prepaid basis in exchange for payment; and (v) honored upon presentation to such merchant, retailer, or seller of nonfinancial goods or services or an affiliate of such person, which affiliate itself is a merchant, retailer, or seller of nonfinancial goods or services, only for any nonfinancial goods or services. (29) Transmitting or exchanging funds The term “transmitting or exchanging funds” means receiving currency, monetary value, or payment instruments from a consumer for the purpose of exchanging or transmitting the same by any means, including transmission by wire, facsimile, electronic transfer, courier, the Internet, or through bill payment services or through other businesses that facilitate third-party transfers within the United States or to or from the United States.
References In Text
This title, where footnoted in text, is title X of Pub. L. 111–203,
Subtitle G, referred to in par. (12), is subtitle G (§§ 1071–1079A) of title X of Pub. L. 111–203,
Subtitle H, referred to in pars. (12) and (15)(B)(ii)(II), is subtitle H (§§ 1081–1100H) of title X of Pub. L. 111–203,
The Alternative Mortgage Transaction Parity Act of 1982, referred to in par. (12)(A), is title VIII of Pub. L. 97–320,
The Consumer Leasing Act of 1976, referred to in par. (12)(B), is Pub. L. 94–240,
The Electronic Fund Transfer Act, referred to in par. (12)(C), is title IX of Pub. L. 90–321, as added by Pub. L. 95–630, title XX, § 2001,
The Equal Credit Opportunity Act, referred to in par. (12)(D), is title VII of Pub. L. 90–321, as added by Pub. L. 93–495, title V, § 503,
The Fair Credit Billing Act, referred to in par. (12)(E), is title III of Pub. L. 93–495,
The Fair Credit Reporting Act, referred to in par. (12)(F), is title VI of Pub. L. 90–321, as added by Pub. L. 91–508, title VI, § 601,
The Homeowners Protection Act of 1998, referred to in par. (12)(G), is Pub. L. 105–216,
The Fair Debt Collection Practices Act, referred to in par. (12)(H), is title VIII of Pub. L. 90–321, as added by Pub. L. 95–109,
The Home Mortgage Disclosure Act of 1975, referred to in par. (12)(K), is title III of Pub. L. 94–200,
The Home Ownership and Equity Protection Act of 1994, referred to in par. (12)(L), is subtitle B (§§ 151–158) of title I of Pub. L. 103–325,
The Real Estate Settlement Procedures Act of 1974, referred to in par. (12)(M), is Pub. L. 93–533,
The S.A.F.E. Mortgage Licensing Act of 2008, referred to in par. (12)(N), is title V of div. A of Pub. L. 110–289,
The Truth in Lending Act, referred to in par. (12)(O), is title I of Pub. L. 90–321,
The Truth in Savings Act, referred to in par. (12)(P), is subtitle F (§§ 261–274) of title II of Pub. L. 102–242,
Section 626 of the Omnibus Appropriations Act, 2009, referred to in par. (12)(Q), is section 626 of div. D of Pub. L. 111–8. Subsecs. (a) and (b) of section 626 are classified to section 5538 of this title, and subsec. (c) of section 626 amended section 1639 of Title 15, Commerce and Trade.
The Interstate Land Sales Full Disclosure Act, referred to in par. (12)(R), is title XIV of Pub. L. 90–448,
Subtitle F, referred to in pars. (14) and (15)(B)(ii)(II), is subtitle F (§§ 1061–1067) of title X of Pub. L. 111–203,
The Federal Trade Commission Act, referred to in par. (14), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, which is classified generally to subchapter I (§ 41 et seq.) of chapter 2 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 58 of Title 15 and Tables.
The Commodity Exchange Act, referred to in par. (20), is act Sept. 21, 1922, ch. 369, 42 Stat. 998, which is classified generally to chapter 1 (§ 1 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see section 1 of Title 7 and Tables.
The Securities Exchange Act of 1934, referred to in par. (21)(A), (D) to (F), and (K), is act June 6, 1934, ch. 404, 48 Stat. 881, which is classified principally to chapter 2B (§ 78a et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables.
The Investment Advisers Act of 1940, referred to in par. (21)(B), is title II of act Aug. 22, 1940, ch. 686, 54 Stat. 847, which is classified generally to subchapter II (§ 80b–1 et seq.) of chapter 2D of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 80b–20 of Title 15 and Tables.
The Investment Company Act of 1940, referred to in par. (21)(C), is title I of act Aug. 22, 1940, ch. 686, 54 Stat. 789, which is classified generally to subchapter I (§ 80a–1 et seq.) of chapter 2D of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 80a–51 of Title 15 and Tables.
Effective Date
Section effective 1 day after
Miscellaneous
Pub. L. 111–203, title XIV, § 1400(b),