Developments in credit card practices and related actions by the OCC to protect consumers

INTRODUCTION

(1) Credit card issuers have introduced new products, adopted new marketing strategies, and made changes in account management practices in reaction to these market forces. In some cases, product and marketing innovations have been designed to expand credit access by individuals who traditionally have had limited access to credit and other financial services. Other developments, however, have not been so positive.

Problems arise when credit card product, marketing, and servicing innovations carry costs, risks, and limitations that are detrimental to, and are not adequately disclosed to, consumers. Particular concerns have been identified in connection with: (i) the growth in secured credit card products

The Office of the Comptroller of the Currency (OCC), the federal agency responsible for examination, supervision, and regulation of nationally-chartered banks, has responded to these emerging issues through a combination of supervisory actions and formal guidance to the national banking industry. The OCC has supplemented its enforcement of the TILA with supervisory guidance that highlights objectionable practices as they surface in the marketplace, warning national banks of practices and product structures raising reputation and compliance risks that should be avoided by national banks. The OCC also has taken formal enforcement actions under Section 5 of the Federal Trade Commission Act (the “FTC Act”) where it has found credit card practices to be unfair or deceptive. (3)

This Article discusses the OCC’s implementation of this supervisory approach in a number of areas raising important consumer protection concerns in the credit card market. It discusses OCC actions with respect to particular credit card structures, marketing techniques, and other practices, including secured credit cards, promotional rate marketing, marketing of cards with a credit limit “up to” a stated dollar amount, and repricing practices. These actions, and the guidance the OCC has issued to national banks, reflect an important supervisory philosophy: technical compliance with regulations may not be sufficient to avoid significant reputation and compliance risks or to assure that customers are given adequate information and fair choices in their selection of credit card products.

SECURED CREDIT CARDS

In secured credit card programs, the credit extended by the issuer is wholly- or partially-secured by collateral of the borrower (typically a bank deposit). These cards are generally marketed to individuals with limited or blemished credit histories who may not be eligible for unsecured credit. In addition to functioning as a form of identification, these products can assist in establishing or improving credit histories, and may be less expensive than other available forms of credit. Traditionally, secured credit cards have required that borrowers transfer funds to the issuing bank at account opening. These funds are pledged as security for the amounts borrowed under the credit card account, and are placed on deposit (at the issuer or another institution) in the name or for the benefit of the consumer. If the consumer defaults on the credit card account, the deposited funds may be used to help satisfy the debt.

In recent years, however, some issuers began to offer secured credit cards that did not require the consumer to provide separate funds in order to establish a security deposit and open the credit card account. Instead, the security deposit for the account would be charged to the credit card itself, upon issuance. The result was that the consumer had little or no available credit (or card utility) at account opening. Unsecured credit card products also were offered with a similar structure, except that account opening fees, rather than a security deposit, were charged to the account and consumed the nominal credit line assigned by the issuer.

The structure of these credit card products–in combination with marketing programs that often did not adequately explain the structure or its likely consequences–produced a substantial risk of consumer confusion regarding the amount of initial available credit, the consumer’s ability to use the card in transactions, and the relative cost of the credit being made available to the consumer. The TILA and its implementing regulation, Regulation Z of the Board of Governors of the Federal Reserve System (FRB), (4) are focused primarily on cost disclosures rather than disclosures pertaining to credit limits and initial available credit. (5) Moreover, while account opening disclosures prescribed by Regulation Z require, if applicable, a general disclosure pertaining to security interests, there is no such requirement for credit card solicitations or advertisements. (6) Thus, these rules skip key information that would provide consumers a full understanding of the product’s cost and benefits, and offer little guidance to lenders that may have wished to present such information in a comprehensible manner. In two cases involving this type of secured credit card, the OCC found that solicitations and other marketing materials did not adequately inform consumers of the terms, risks, and limitations of the products being offered. (7) Most significantly, these materials failed to explain the likely effect of security deposits and fees on the low credit line that was typically extended, and the consequent impairment of available credit and card utility. These omissions were accompanied by potentially misleading representations concerning possible uses of the card, such as helping consumers to “be prepared for emergencies.” (8) Although these marketing practices generally complied with the specific credit cost disclosure requirements of the TILA and Regulation Z, the OCC determined that they constituted deceptive practices under the FTC Act. (9) The OCC’s enforcement actions required both changes in the issuer’s practices and monetary reimbursement to victims.

In the wake of these enforcement actions, the OCC reviewed whether this type of secured credit card program–in which the security deposits and fees charged to the account severely reduced initial credit availability–could also be found to be unfair within the meaning of the FTC Act (for example, because the product received by most consumers failed to provide the card utility and credit availability for which consumers had applied and paid). (10) Evidence available to the OCC also indicated that charging the security deposit to the card, rather than requiring the consumer to deposit separate funds, increased the probability of default on the account. In addition to raising safety and soundness concerns, this evidence suggested the possibility that charging a security deposit to the account may encourage irresponsible credit behavior. Such behavior, in turn, would have an adverse effect on the consumer’s credit standing. Based on this review, the OCC concluded that this practice posed considerable compliance issues and other risks. (11)

In light of these considerations, the OCC issued Advisory Letter 2004-4 entitled “Secured Credit Cards” (“AL 2004-4”) to national banks and examiners advising that national banks should not offer secured credit card products in which security deposits (and fees) are charged to the credit card account if that practice will substantially reduce the amount of available credit and card utility for the consumer. (12) The OCC also advised that national banks should not offer unsecured credit cards that present similar concerns as a result of initial fees charged to the card. (13) AL 2004-4 also addresses programs in which consumers do receive considerable initial credit, but security deposits and fees are charged at account opening. (14) The OCC stated that it expects that national banks will not offer this type of product without first conducting a rigorous analysis to address the safety, soundness, and consumer protection concerns discussed above. (15)

Shortly after the issuance of this guidance, the OCC brought an enforcement action against a national bank offering this type of secured credit card product that required the bank to reimburse affected consumers and to cease offering products in which the security deposit is charged to the consumer’s credit card account. (16) The OCC determined that the bank’s offering of this product constituted an unfair practice within the meaning of the FTC Act. (17)

AL 2004-4 also offers guidance concerning marketing, structuring terms, and managing credit risk for more traditional secured credit cards and similar products. (18) With respect to marketing, the advisory provides that national banks should: adhere to the OCC’s guidance on unfair or deceptive acts or practices

PROMOTIONAL RATE MARKETING

One marketing tool common in the credit card industry is the promotional rate. (22) Frequently, promotional rates are used to induce new and existing customers to transfer balances from other credit cards. The promotional rate is usually in effect for a limited period, and this term is generally prominently displayed in advertising. There may be other important limitations on the availability of the promotional rate, however, or on the consumer’s ability to take advantage of that rate, and those may not be disclosed prominently. For instance, the lower, promotional rate may apply only to balances transferred and not to new purchases during the promotional period (or preexisting balances). New purchases (and preexisting balances) would therefore remain subject to a higher Annual Percentage Rate (APR). Moreover, the consumer’s payments during the promotional period may be applied first to the transferred balance, and only after this balance is paid off will payments be applied to balances that are accruing interest at a higher APR. There may also be other costs, such as balance transfer fees, that affect whether the consumer will benefit from accepting a promotional rate offer.

Standing alone, these costs and limitations are not unlawful or necessarily inappropriate, and promotional rate offers can help consumers lower their credit costs. When fees and limitations are not appropriately disclosed, however, a host of issues arise. Consumers may accept offers they would not have accepted had they known the true terms. This, in turn, can lead to increased complaints and increased exposure to claims of unfairness or deception, litigation, and harm to a bank’s reputation.

Regulation Z, while governing many aspects of promotional rate offers, does not provide a complete framework for preventing consumer confusion. Direct mail credit card solicitations must display prominently in a table format each APR that will apply to purchases and balance transfers. (23) Other information inserted in a direct mail envelope, however, might emphasize the promotional rate even more prominently, while failing to disclose limitations or doing so only in fine print. (24) Further, Regulation Z does not require creditors to specify the order that payments will be applied to various balances. (25) And although balance transfer fees must be disclosed in solicitations, they are not required to be disclosed in a “prominent location.” (26)

To assist national banks in responsibly using promotional rate offers, the OCC recently issued guidance in the form of Advisory Letter 2004-10 (“AL 2004-10”). (27) AL 2004-10 lists promotional practices that the OCC believes pose unacceptable compliance and reputation risks. (28) These practices include failing to disclose fully and prominently the categories of balances or charges to which the promotional rate will not apply. (29) AL 2004-10 also states that a national bank should not fail to disclose fully and prominently other material limitations, such as the time period the rate will be in effect and any circumstances that could shorten the promotional rate period. (30) Moreover, if applicable, a national bank should not omit full and prominent disclosure that payments will be applied to promotional rate balances first. (31) Other practices described in AL 2004-10 that pose unacceptable risks involve affirmatively creating the impression that material limitations on the applicability of the promotional rate do not exist and failing to disclose fees, such as balance transfer fees, fully and prominently. (32)

“UP TO” MARKETING

AL 2004-10 also addresses another common marketing tool in the credit card industry–catching a consumer’s attention with an offer of a credit limit “up to” a specified amount. (33) While this practice has been used for some time, the OCC has become increasingly concerned that it could be unfair or deceptive in certain circumstances. (34) At one end of the spectrum are marketing programs that target individuals who have a sound history of managing credit. Most consumers who respond to such offers receive a significant credit line, even if well below the maximum amount advertised, and any initial fees are small in relation to the credit extended.

At the other end of the spectrum, however, are programs that target individuals who, because of impaired credit or limited credit history, are unlikely to qualify for the maximum credit amount advertised. Instead, they are likely to receive a “default credit line” (the minimum credit line) that is significantly lower than the maximum. The marketing materials may state that the recipient has been preapproved to receive credit “up to” a stated amount, and the possibility that a significantly lower credit line may be extended is either not disclosed, or disclosed only in fine print or in an obscure location. Moreover, when high initial fees are charged to the card in relation to the credit line extended, consumers who accept the offer end up with little initial available credit. (35) Such a marketing program is particularly problematic if accompanied by representations of possible uses of the card, such as renting a car, that will be unrealistic given the available credit for most cardholders. In such circumstances, the offer of credit “up to” a specified amount is essentially illusory. If an issuer makes it difficult or impossible for a consumer to cancel a card upon learning the true credit limit without incurring fees, such programs become even more harmful.

The OCC has taken enforcement action in three matters involving marketing of credit cards with limits “up to” a specified amount. (36) These enforcement actions involved products and marketing techniques like those described above

Between the two ends of the spectrum discussed above are cases in which marketing materials could be misleading, but mitigating factors (e.g., qualifying disclosures or lack of harm to consumers) are also present. AL 2004-10 clarifies the OCC’s expectations for national banks in such “gray areas.” (39) It states three general guidelines. First, national banks should not target consumers who have limited or poor credit histories with solicitations for credit cards with a maximum credit limit that is far greater than most applicants are likely to receive. (40) Second, national banks should not provide most applicants with a default credit line significantly lower than the “up to” amount advertised if they have not fully and prominently disclosed the amount of the default credit line and the possibility that the consumer will receive it. (41) Finally, national banks should not advertise the possible uses of the card when the initial available credit most consumers receive is unlikely to allow those uses. (42) The advisory also recommends that, to mitigate risks associated with “up to” marketing, national banks should strongly consider providing and disclosing readily exercisable mechanisms for consumers to cancel the card at little or no cost when they learn the actual credit limit granted to them. (43)

REPRICING PRACTICES

As the credit card industry has become increasingly competitive, fees, rather than interest revenues, have been a growing source of profit. (44) Additionally, many credit card issuers have turned to measures such as penalty pricing, rather than the up-front interest rate, to manage risk. (45) For instance, many credit card issuers raise the APR for consumers who do not make timely payments to the issuer, or even to another creditor. (46) According to a recent survey conducted by a consumer advocacy organization, eighty-five percent of forty-five credit card issuers imposed penalty rates for late payments to the issuer, with an average penalty rate of 22.91 percent. (47) Of those surveyed, forty-four percent increased interest rates due to poor payment performance with other creditors. (48) Card issuers may also raise the APR due to other behavior that reflects adversely on the consumer’s credit standing, such as the consumer’s increased use of credit or failure to make more than the minimum monthly payment. Additionally, card issuers may raise the cost of credit for some consumers in other ways, such as shortening due dates for payments and increasing cash advance, over-the-limit, late payment, or similar fees. (49)

Regulation Z does not restrict the ability of creditors to include repricing provisions, or provisions permitting unilateral changes in terms, in most open-end consumer credit contracts. (50) Although Regulation Z does require disclosure of penalty APRs in solicitations and in account opening materials, (51) the manner of disclosure may not effectively alert customers to these terms. For example, except in certain transactions, the disclosure of when penalty rates will apply is not required to be included in the “Schumer box” disclosures, and need not be as detailed as the explanation later provided in the initial account disclosures. (52) Moreover, Regulation Z does not require creditors to provide fifteen days advance notice before an interest rate increase, when the increase is due to a consumer’s “default” as defined in the credit agreement. (53) Further, Regulation Z contains no disclosure requirement pertaining to a creditor’s general reservation of rights to change, unilaterally, interest rates, fees, or other terms in the credit card agreement. (54) Thus, if marketing materials create misimpressions concerning credit card terms or the circumstances under which terms could change, materials mailed to a consumer after acceptance of a solicitation may not be sufficient to dispel the confusion or avoid surprise. (55)

AL 2004-10 provides guidance to national banks to assist in avoiding compliance and reputation risks in this area and makes clear that the OCC expects more than mere technical compliance with Regulation Z. The OCC guidance states that national banks should disclose fully and prominently in promotional materials the specific circumstances under which the card agreement permits the bank to increase the consumer’s APR, fees, or other costs (such as for late payment to another creditor). (56) Additionally, if national banks reserve the right to change the APR, fees, or other credit terms, for any reason at the bank’s discretion, the OCC advisory provides that this fact should be disclosed fully and prominently in marketing materials and credit agreements. (57)

CONCLUSION

Strong competition, rapid innovation, and efforts to reach an ever-broader customer base have spurred the credit card industry to develop and employ new credit products, marketing strategies, and account management practices. Although some innovations can lead to more competitive pricing and better customer service, others can raise consumer protection concerns–concerns that may not be addressed directly by Regulation Z or other existing systems of specific rules. The FTC Act is broad enough to encompass an additional range of consumer protection concerns, and the OCC uses this law to respond to situations in which innovations and developments in loan products and marketing practices “cross over the line” into unfair or deceptive credit practices.

Another range of credit card practices exist that may not be covered by the particular requirements of Regulation Z and may not be easily established as violations of the FTC Act. The OCC has sought to highlight these practices through a combination of preventive guidance to national banks and, in appropriate circumstances, supervisory responses involving particular national banks. Both the OCC’s industry guidance and its enforcement actions help to protect consumers and provide direction to credit card issuers on how to avoid customer confusion and potential consumer abuse, and the corresponding compliance, reputation, and other risks.

(1.) According to one market research company, during the first quarter of 2004, an average of seventy-three percent of United States households received 5.3 credit card offers per month. See Synovate, U.S. Credit Card Companies Mailing Consumers More Offers, June 2, 2004, available at http:// www.synovate.com/en/news/index.php. Credit card mail volume was up eight percent over the same quarter of 2003. Id.

(2.) See 15 U.S.C. [subsection] 1601-1666j (2000). The TILA is implemented by Regulation Z of the Board of Governors of the Federal Reserve System (FRB). 12 C.F.R. pt. 226 (2004). The FRB recently issued an advance notice of proposed rulemaking initiating a review of portions of Regulation Z relating to credit cards. 69 Fed. Reg. 70,925 (2004).

(3.) 15 U.S.C [section] 45 (2000). This supervisory approach is analogous to the combination of industry guidance and FTC Act enforcement actions used by the OCC to address issues of predatory lending. See Guidelines for National Banks to Guard Against Predatory and Abusive Lending Practices, OCC Advisory Letter AL 2003-2 (Feb. 21, 2003), available at http://www.occ.treas.gov/ftp/advisory/2003-2 pdf

(4.) 12 C.F.R. pt. 226 (2004).

(5.) See, e.g., 12 C.F.R. [section] 226.5a (regarding required disclosures on credit and charge card applications and solicitations). See generally 12 C.F.R. [section] 226.16(a) (requiring that advertisements for credit stating specific credit terms state only those terms that actually are or will be offered or arranged by the creditor).

(6.) See 12 C.F.R. [section] 226.6(c). See generally 12 C.F.R. [subsection] 226.5a, 226.16.

(7). See Consent Order, In re First Nat’l Bank of Marin, Las Vegas, Nev., Enforcement Action 2001-97 (Dec. 3, 2001) [hereinafter FNB Marin Consent Order], available at http://www.occ.treas.gov/ftp/ eas/ea2001-97.pdf

The OCC also obtained a formal agreement in a similar case involving an unsecured credit card program. See Agreement by and between First Nat’l Bank, Ft. Pierre, S.D., and the Office of the Comptroller of the Currency, Enforcement Action 2002-61 (July 18, 2002) [hereinafter FNB Ft. Pierre Formal Agreement], available at http://www.occ.treas.gov/ftp/eas/ea2002-61.pdf. The Brookings case referenced above also involved, among other things, a number of unsecured credit card programs with a similar structure, in which account opening fees were charged to the credit card account and consumed most of the assigned credit line. Additionally, the OCC entered a consent order in a case involving findings of misleading practices in connection with “downselling” consumers from credit cards with no processing fee to credit cards with a significant processing fee, or from unsecured cards to less attractive, partially secured cards. Consent Order, In re Direct Merchants Credit Card Bank, N.A., Scottsdale, Ariz., Enforcement Action 2001-24 (May 3, 2001), available at http://www.occ. treas.gov/ftp/eas/ea2001-24.pdf

(8.) FNB Marin Fact Sheet, supra note 7, at 2.

(9.) See Letter from James C. Miller III, Chairman, Federal Trade Commission, to John D. Dingell, Chairman, House Committee on Energy and Commerce (Oct. 14, 1983), available at http://www.ftc. gov/bcp/policystmt/ad-decept.htm. The FTC has indicated that a practice is deceptive if it is material and likely to mislead a reasonable consumer. See id.

(10.) The FTC has indicated that a practice is unfair if (i) the practice causes substantial consumer injury

(11.) Secured Credit Cards, OCC Advisory Letter AL 2004-4 (Apr. 28, 2004), at 1, 4-5 [hereinafter AL 2004-04], available at http://www.occ.treas.gov/ftp/advisory/2004-4.doc.

(12.) See id. at 6.

(13.) Id.

(14.) Id.

(15.) Id.

(16.) See Consent Order, In re First Nat’l Bank of Mann, Las Vegas, Nev., Enforcement Action 200445 (May 21, 2004), available at http://www.occ.treas.gov/ftp/eas/ea2004-45.pdf.

(17.) Press Release, OCC, OCC Order Against First National Bank of Mann (May 24, 2004), available at http://www.occ.treas.gov/scripts/newsrelease.aspx?Doc = NIXU5YSI.xml.

(18.) See AL 2004-04, supra note 11, at 5-7.

(19.) Id. at 5. See generally Guidance on Unfair or Deceptive Acts or Practices, OCC Advisory Letter AL 2002-3 (Mar. 22, 2002), available at http://www.occ.treas.gov/ftp/advisory/2002-3.doc.

(20.) AL 2004-04, supra note 11, at 5-6.

(21.) Id. at7.

(22.) According to one market research company, nearly seventy percent of direct mail credit card offers sent to households during the first quarter of 2004 promoted an introductory rate for purchases, balance transfers, or both. See U.S. Credit Card Companies Mailing Consumers More Offers, supra note 1.

(23.) 12 C.F.R. [section] 226.5a(a)(1), (2), (b)(1) (2004)

(24.) One court has recently considered such additional materials in evaluating the adequacy of required TILA disclosures. See Roberts v Fleet Bank, 342 F.3d 260, 268 (3d Cir. 2003) (holding that court would consider marketing materials provided to consumer in addition to the table required for solicitations under Regulation Z in evaluating adequacy of bank’s TILA disclosures).

(25.) 12 C.F.R. pt. 226, supp. I, [section] 226.6(a)(3) cmt. 2.

(26.) 12 C.F.R. [section] 226.5a(a)(2)(ii)

(27.) Credit Card Practices, OCC Advisory Letter AL 2004-10 (Sept. 14, 2004) [hereinafter AL 200410], available at http://www.occ.treas.gov/ftp/advisory/2004-10.doc.

(28.) Id.

(29.) Id. at 3.

(30.) Id. at 2-3.

(31.) Id.

(32.) Id. at 3.

(33.) Id. at 1

(34.) The Regulation Z provision governing credit card solicitations does not speak to credit limits. See 12 C.F.R. [section] 226.5a. Regulation Z does, however, provide that “[i]f an advertisement for credit states specific credit terms, it shall state only those terms that actually are or will be arranged or offered by the creditor.” Id. [section] 226.16(a).

The Fair Credit Reporting Act (FCRA) allows credit card issuers, under certain circumstances, to extend a “firm offer of credit” to a consumer about whom it obtains information from a credit bureau when the transaction is not initiated by the consumer. 15 U.S.C. [subsection] 1681a(1), 1681b(c), 1681m(d) (2000 & Supp. 2004). While FCRA contains a detailed definition of “firm offer of credit” and contains other requirements concerning language that must be included in such offers, it does not address the disclosures needed to ensure that marketing materials sent to prescreened individuals are not misleading. See id. [subsection] 1681a(1), 1681m(d). In fact, FCRA states that its provisions addressing users of consumer reports making firm offers of credit do not affect the authority of any federal or state agency to enforce a prohibition against unfair or deceptive acts or practices. Id. [section] 1681m(d)(4).

(35.) As previously discussed, AL 2004-4 advised that national banks should not offer unsecured credit cards “if the amount of the fees charged to the card upon issuance substantially reduces the amount of initial available credit and card utility.” AL 2004-04, supra note 11, at 6.

(36.) See FNB Matin Consent Order, supra note 7

(37.) Julie L. Williams & Michael S. Bylsma, On the Same Page: Federal Banking Agency Enforcement of the FTC Act to Address Unfair and Deceptive Practices by Banks, 58 Bus. Law. 1243, 1255 (2003).

(38.) FNB Marin Consent Order, supra note 7, art. I

(39.) AL 2004-10, supra note 27.

(40.) Id. at 2.

(41.) Id.

(42.) Id.

(43.) Id.

(44.) Chris Baker, Fee-normous, WASH. TIMES, July 27, 2004, at C8

(45.) Growing Profit Source, supra note 44, at A1, AA.

(46.) Id. at A8

(47.) Consumer Action, New Credit Card Survey Uncovers Increases in Anti-Consumer Practices (May 25, 2004), available at http://www.consumer-action.org/English/PressReleases/2004_05_25_PR. php.

(48.) Id.

(49.) Regulation Z does not prohibit changing the terms of a credit agreement, although it does generally require a change in terms notice for terms covered in required initial disclosures. 12 C.F.R. [section] 226.9(c) (2004). Generally, changes in terms notices must be provided fifteen days prior to the effective date of the change. Id. The fifteen-day requirement does not apply, however, if the consumer has agreed to the change or if the periodic rate or other finance charge is increased because of the consumer’s delinquency or default. Id. Regulation Z requires simply that notice of such changes be provided “before the effective date of the change.” Id. Additionally, there may be no “change” in terms if the specific change was set forth initially See 12 C.F.R. pt. 226, supp. I, [section] 226.9(c) cmt. 1. Finally, a separate category of changes is exempt from subsequent disclosure requirements. This category includes, among other items, changes involving late payment charges, over-the-limit charges, or a consumer’s default or delinquency (other than an increase in the periodic rate or other finance charge). 12 C.F.R. [section] 226.9(c)(2).

(50.) The one exception to this principle relates to home equity lines of credit. If borrowings under a credit card or other open-end consumer credit plan are secured by the consumer’s dwelling, the creditor may not include a general reservation of rights clause that permits increases to rates or fees. The creditor may, however, provide in the initial agreement that a specific change in terms (for example, an increase in the interest rate to eighteen percent) will occur if a specific event takes place (for example, the consumer’s failure to make payments when due on the home equity line or any other debt secured by the dwelling). See 12 C.F.R. [section] 226.5b(f)(3)(i)

(51.) See 12 C.F.R. [section] 226.5a(b)(1)

(53.) See supra note 49. Legislation addressing certain changes in credit card terms was introduced in the Senate in the 108th Congress. The bill would have amended TILA to, inter alia, require advance notice of any increase in the APR (other than due to the expiration of an introductory rate or a variable rate feature), prohibit application of a changed rate to an outstanding balance, place a freeze on interest rate terms and fees on cancelled cards, and require conspicuous disclosure on periodic statements if one or more late payments would result in an increase in the APR. S. 2755, 108th Cong. [subsection] 111, 112, 213 (2004).

(54.) See generally 12 C.F.R. [section] 226.5a (relating to credit card solicitations)

(55.) Cf. Roberts v. Fleet Bank, 342 F.3d 260, 266-69 (3d Cir. 2003) (finding that where a bank increased an APR advertised as “fixed,” plaintiff stated a claim under TILA that bank had not clearly and conspicuously disclosed the APR, even though bank had reserved the right to change the rate in the cardholder agreement)

(56.) AL 2004-10, supra note 27, at 3.

(57.) Id.

Julie L. Williams, Michael S. Bylsma, Stephen G. Van Meter, and Kathryn D. Ray *

* Julie L. Williams is First Senior Deputy Comptroller and Chief Counsel, Office of the Comptroller of the Currency, Washington, D.C. Michael S. Bylsma is Director, Community and Consumer Law Division, Office of the Comptroller of the Currency, Washington, D.C. Stephen G. Van Meter is Assistant Director, Community and Consumer Law Division, Office of the Comptroller of the Currency, Washington, D.C. Kathryn D. Ray is Special Counsel, Community and Consumer Law Division, Office of the Comptroller of the Currency, Washington, D.C.