| (ii) security agreements that describe the collateral
in detail sufficient to identify each individual item taken (including
any separate valuation sheets reporting the replacement value of the
personal property items);
(iii) loan applications and any other written or recorded
information used in evaluating the application;
(iv) financing statements;
(v) certificates of title for motor vehicles securing
the loan and applications for certificate of titles;
(vi) records of insurance policies issued by or through
the licensee in connection with the loan, including certificate of
insurances;
(vii) if a motor vehicle physical damage insurance
policy is required, a copy of the policy or insurance application
and other pertinent records relating to the rating of the policy as
finally issued;
(viii) supplemental insurance records;
(ix) supplemental gap waiver agreement records;
(x) any written or recorded records relating to repossessions,
legal actions, or foreclosure actions regarding the borrower or the
borrower's collateral securing the loan;
(xi) any record maintained under the Department of
Defense's Military Lending Act Rule, 32 C.F.R. §232.5, regarding
whether the borrower is a covered borrower; and
(xii) any separate disclosures that are required by
federal or state law, such as the notice to cosigner required by the
Federal Trade Commission's Credit Practices Rule, 16 C.F.R. §444.3,
or any mandatory disclosure to a covered borrower under the Department
of Defense's Military Lending Act Rule, 32 C.F.R. §232.6.
(B) Supplemental insurance records. Each licensee must
maintain in the borrower's file supplemental records supporting the
settlement or denials of claims reported in the registers. If the
reason for the denial of a credit life insurance or a credit accident
and health insurance claim is based upon the medical records of the
borrower, supplemental records supporting the denial of the claim
must be forwarded to the commissioner upon request.
(i) Credit life insurance claims. The supplemental
insurance records for credit life insurance claims must include the
death certificate or other written records relating to the death of
the borrower; proof of loss or claim form that discloses the amount
of indebtedness at the time of death; check copies or electronic payment
receipts that reflect the gross amount of the claim paid, including
the amount of insurance benefits paid to beneficiaries other than
the licensee which is in excess of the net amount necessary to pay
the indebtedness; and the amount that is paid to beneficiaries other
than the licensee.
(ii) Credit accident and health insurance claims. The
supplemental insurance records for credit accident and health insurance
claims must include any written records relating to the disability,
including statements from the physician, employer, and borrower; the
proof of loss or claim form filed by the borrower; and copies of the
checks or electronic payment receipts reflecting disability payments
paid by the insurance carrier.
(iii) Personal property insurance claims. The supplemental
insurance records for personal property insurance claims must include
the law enforcement report, fire department report, or other written
record reflecting the loss or destruction of any covered item; the
proof of loss or claim form filed by the borrower; copies of the checks
or electronic payment receipts reflecting the payment of the claim
by the insurance carrier; and any other pertinent written record relating
to the personal property insurance claim. In the case of property
insurance claims, these supplemental insurance records must clearly
indicate whether the amount of the settlement on each individual item
is based on the replacement value or based on the cost of repair.
(iv) Credit involuntary unemployment insurance claims.
The supplemental insurance records for credit involuntary unemployment
insurance claims must include any written document relating to the
termination, layoff, or dismissal of the borrower; the proof of loss
or claim form filed by the borrower; copies of the checks or electronic
payment receipts reflecting the payment of the claim by the insurance
carrier; and any other pertinent written record relating to the credit
involuntary unemployment insurance claim.
(v) Collateral protection insurance claims. The supplemental
insurance records for collateral protection insurance claims must
include the law enforcement report, fire department report, or other
written record reflecting the loss or destruction of any covered motor
vehicle; the proof of loss or claim form filed by the borrower; copies
of the checks or electronic payment receipts reflecting the payment
of the claim by the insurance carrier; and any other pertinent written
record relating to the collateral protection insurance claim.
(C) Supplemental gap waiver agreement records. Each
licensee must maintain in the borrower's individual file records supporting
the settlements or denials of gap waiver agreement claims reported
in the gap waiver agreement register. The records must include, if
applicable:
(i) the gap waiver agreement claim form;
(ii) proof of loss and settlement check from the borrower's
basic comprehensive, collision, or uninsured/underinsured policy or
other parties' liability insurance policy for the settlement of the
insured total loss of the motor vehicle;
(iii) documents that provide verification of the borrower's
primary insurance deductible;
(iv) if the accident was investigated by a law enforcement
officer, a copy of the offense or police report filed in connection
with the total loss of the motor vehicle;
(v) if the accident was not investigated by a law enforcement
officer, a copy of the Texas Department of Public Safety "Driver's
Crash Report" (Form CR-2) filed in connection with the total loss
of the motor vehicle; and
(vi) copies of the checks reflecting the settlement
amount paid by the licensee for the gap waiver agreement claim.
(11) Advertising records.
(A) Required information and record retention. Each
licensee must maintain, either at the licensed office or at a principal
Texas office, so designated to the commissioner, complete records
of all written and electronic communications soliciting loans (including
scripts of radio and television broadcasts, and reproductions of billboards
and signs not at the licensed place of business) for a period of not
less than one year from the date of use or until the next examination
by OCCC staff. The date or period of use of each solicitation or advertisement
must be indicated.
(B) Translation required for non-English advertisements.
If any language other than English is used in any advertising material,
a true and correct translation must appear along with the advertising
material.
(12) Adverse action records. Each licensee must maintain
adverse action records regarding all applications relating to Texas
Finance Code, Chapter 342 loans. Adverse action records must be maintained
according to the record retention requirements contained in Regulation
B, Equal Credit Opportunity Act, 12 C.F.R. §1002.12(b). The current
retention periods are 25 months for consumer credit and 12 months
for business credit. These records include the loan application; any
written or recorded information used in evaluating the application;
the adverse action notice, if required; notice of incompleteness,
if applicable; and counteroffer notice, if applicable.
(13) Compliance file. Each licensee must maintain a
separate file for all communications from the OCCC and for copies
of correspondence and reports addressed to the OCCC. This file must
include, at a minimum, electronic or paper copies of the current Texas
Finance Code, Chapter 342, the last three examination reports, correspondence
relating to compliance issued in the last two years, and current rules
issued by the commissioner. A licensee will be considered to have
maintained copies of the Texas Finance Code and current rules by having
access to the websites containing the official versions of the current
Texas Finance Code and the current Texas Administrative Code. A licensee
will be considered to have maintained copies of some or all of the
last three examination reports if those reports were issued electronically
by the OCCC.
(14) Retention and availability of records. All required
books and records must be available for inspection at any time by
OCCC staff, and must be retained for a period of four years from the
date of the loan, or two years from the date of the final entry made
thereon, whichever is later. All obligations authenticated by the
borrower, including promissory notes and security agreements, must
be kept at an office in the state designated by the licensee or made
available in the state, except when transferred under an agreement
that gives the OCCC access to the documents. Copies of loan documents,
financing statements, loan applications, records of insurance policies
issued by or through the licensee in connection with the loan, and
books and records required by this section must be maintained at the
licensed location or be made available at some location in the state
designated by the licensee in writing to the OCCC. Documents may be
maintained out of state if the licensee has in writing acknowledged
responsibility for either making the records available within the
state for examination or by acknowledging responsibility for additional
examination costs associated with examinations conducted out of state.
|
| Source Note: The provisions of this §83.828 adopted to be effective November 9, 2006, 31 TexReg 9006; amended to be effective November 4, 2010, 35 TexReg 9698; amended to be effective July 10, 2014, 39 TexReg 5142; amended to be effective September 8, 2016, 41 TexReg 6676; amended to be effective November 8, 2018, 43 TexReg 7338 |
