Page:United States Statutes at Large Volume 92 Part 3.djvu/1104

 92 STAT. 3736

PUBLIC LAW 95-630—NOV. 10, 1978 I ^'

15 USC 16931.

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" (B) the funds are subject to legal process or other encumbrance restricting such transfer; "(C) such transfer would exceed an established credit limit; "(D) an electronic terminal has insufficient cash to complete the transaction; or " (E) as otherwise provided in regulations of the Board; "(2) the financial institution's failure to make an electronic fund transfer due to insufficient funds when the financal institution failed to credit, in accordance with the terms and conditions of an account, a deposit of funds to the consumer's account which would have provided sufficient funds to make the transfer, and "(3) the financial institution's failure to stop payment of a preauthorized transfer from a consumer's account when instructed to do so in accordance with the terms and conditions of the account. "(b) A financial institution shall not be liable under subsection (a)(1) or (2) if the financial institution shows by a preponderance of the evidence that its action or failure to act resulted from— "(1) an act of God or other circumstance beyond its control, that it exercised reasonable care to prevent such an occurrence, and that it exercised such diligence as the circumstances required; or " (2) a technical malfunction which was known to the consumer at the time he attempted to initiate an electronic fund transfer or, in the case of a preauthorized transfer, at the time such transfer should have occurred. "(c) In the case of a failure described in subsection (a) which was not intentional and which resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid any such error, the financial institution shall be liable for actual damages proved. «§ 911. Issuance of cards or other means of access "(a) No person may issue to a consumer any card, code, or other means of access to such consumer's account for the purpose of initiating an electronic fund transfer other than— "(1) in response to a request or application therefor; or "(2) as a renewal of, or in substitution for, an accepted card, code, or other means of access, whether issued by the initial issuer or a successor. "(b) Notwithstanding the provisions of subsection (a), a person may distribute to a consumer on an unsolicited basis a card, code, or other means of access for use. in initiating an electronic fund transfer from such consumer's account, if— "(1) such card, code, or other means of access is not validated; "(2) such distribution is accompanied by a complete disclosure, in accordance with section 905, of the consumer's rights and liabilities which will apply if such card, code, or other means of access is validated; "(3) such distribution is accompanied by a clear explanation, in accordance with regulations of the Board, that such card, code, or other means of access is not validated and how the consumer may dispose of such code, card, or other means of access if validation is not desired; and "(4) such card, code, or other means of access is validated only in response to a request or application from the consumer, upon verification of the consumer's identity.

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