12 C.F.R. § 37.7

Affirmative election to purchase and acknowledgment of receipt of disclosures required

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(a) Affirmative election and acknowledgment of receipt of disclosures. Before entering into a contract the bank must obtain a customer's written affirmative election to purchase a contract and written acknowledgment of receipt of the disclosures required by § 37.6(b). The election and acknowledgment information must be conspicuous, simple, direct, readily understandable, and designed to call attention to their significance. The election and acknowledgment satisfy these standards if they conform with the requirements in § 37.6(d) of this part.

(b) Special rule for telephone solicitations. If the sale of a contract occurs by telephone, the customer's affirmative election to purchase may be made orally, provided the bank:

(1) Maintains sufficient documentation to show that the customer received the short form disclosures and then affirmatively elected to purchase the contract;

(2) Mails the affirmative written election and written acknowledgment, together with the long form disclosures required by § 37.6 of this part, to the customer within 3 business days after the telephone solicitation, and maintains sufficient documentation to show it made reasonable efforts to obtain the documents from the customer; and

(3) Permits the customer to cancel the purchase of the contract without penalty within 30 days after the bank has mailed the long form disclosures to the customer.

(c) Special rule for solicitations using written mail inserts or “take one” applications. If the contract is solicited through written materials such as mail inserts or “take one” applications and the bank provides only the short form disclosures in the written materials, then the bank shall mail the acknowledgment of receipt of disclosures, together with the long form disclosures required by § 37.6 of this part, to the customer within 3 business days, beginning on the first business day after the customer contacts the bank or otherwise responds to the solicitation. The bank may not obligate the customer to pay for the contract until after the bank has received the customer's written acknowledgment of receipt of disclosures unless the bank:

(1) Maintains sufficient documentation to show that the bank provided the acknowledgment of receipt of disclosures to the customer as required by this section;

(2) Maintains sufficient documentation to show that the bank made reasonable efforts to obtain from the customer a written acknowledgment of receipt of the long form disclosures; and

(3) Permits the customer to cancel the purchase of the contract without penalty within 30 days after the bank has mailed the long form disclosures to the customer.

(d) Special rule for electronic election. The affirmative election and acknowledgment may be made electronically in a manner consistent with the requirements of the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq.

[67 FR 58976, Sept. 19, 2002, as amended at 73 FR 22252, Apr. 24, 2008]

Notes of Decisions

Cited in 4 cases, 2009–2013 · leading case: Arevalo v. Bank of Am. Corp., 850 F. Supp. 2d 1008 (N.D. Cal. 2011).

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Arevalo v. Bank of Am. Corp., 850 F. Supp. 2d 1008 (N.D. Cal. 2011). “As Bank of America argues, “[t]hese OCC regulations govern how national banks must record a customer’s voluntary decision to enroll in a DCC.”

Thomas v. Bank of Am. Corp., 711 S.E.2d 371 (Ga. Ct. App. 2011). “6 ); and require national banks to obtain their customers’ written, affirmative election to purchase the product and written acknowledgment of receipt of the disclosures ( 12 CFR § 37.7 ). In spite of the explicit dictate that debt cancellation contracts are not governed by…”

Spinelli v. Capital One Bank, 265 F.R.D. 598 (M.D. Fla. 2009). “6 ); and requires that a national bank obtain and document the customer’s affirmative election to purchase the contract and the customer’s receipt of the disclosures ( 12 C.F.R. § 37.7 ). The Court agrees with Defendants that forcing national banks entering into Debt Agreements…”

New Mexico ex rel. King v. Capital One Bank (USA) N.A., 980 F. Supp. 2d 1314 (D.N.M. 2013). “12 C.F.R. § 37.7 . The disclosure regulations are subject to the same express preemption clause as the rest of Part 37.”

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