15 U.S.C. § 1640 | Civil liability

(a)

Individual or class action for damages; amount of award; factors determining amount of award

section 1635 of this title section 1641 of this titleExcept as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part, including any requirement under , subsection (f) or (g) of , or part D or E of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—

(1)

any actual damage sustained by such person as a result of the failure;

(2)

(A)

(i)

1 So in original. The semicolon probably should be a comma.

in the case of an individual action twice the amount of any finance charge in connection with the transaction, (ii) in the case of an individual action relating to a consumer lease under part E of this subchapter, 25 per centum of the total amount of monthly payments under the lease, except that the liability under this subparagraph shall not be less than $200 nor greater than $2,000, (iii) in the case of an individual action relating to an open end consumer credit plan that is not secured by real property or a dwelling, twice the amount of any finance charge in connection with the transaction, with a minimum of $500 and a maximum of $5,000, or such higher amount as may be appropriate in the case of an established pattern or practice of such failures;  or (iv) in the case of an individual action relating to a credit transaction not under an open end credit plan that is secured by real property or a dwelling, not less than $400 or greater than $4,000; or

(B)

in the case of a class action, such amount as the court may allow, except that as to each member of the class no minimum recovery shall be applicable, and the total recovery under this subparagraph in any class action or series of class actions arising out of the same failure to comply by the same creditor shall not be more than the lesser of $1,000,000 or 1 per centum of the net worth of the creditor;

(3)

in the case of any successful action to enforce the foregoing liability or in any action in which a person is determined to have a right of rescission under section 1635 or 1638(e)(7) of this title, the costs of the action, together with a reasonable attorney’s fee as determined by the court; and

(4)

section 1639 of this title section 1639b(c) of this title section 1639c(a) of this title in the case of a failure to comply with any requirement under , paragraph (1) or (2) of , or , an amount equal to the sum of all finance charges and fees paid by the consumer, unless the creditor demonstrates that the failure to comply is not material.

section 1637 of this title section 1635 of this title 2

2 So in original. Probably should be preceded by “section”.

section 1637(b) of this title section 1610(a)(2) of this title section 1637(a) of this title section 1637(b) of this title section 1637 of this title section 1637(c)(4)(A)(i) of this title section 1638 of this title section 1635 of this title section 1638(a) of this title section 1638(b)(2)(C)(ii) of this title section 1638(e)(2) of this title section 1638(e) of this title section 1638(e) of this title section 1610(a)(2) of this title section 1638(a) of this title section 1638(b)(2)(C)(ii) of this title section 1641 of this titleIn determining the amount of award in any class action, the court shall consider, among other relevant factors, the amount of any actual damages awarded, the frequency and persistence of failures of compliance by the creditor, the resources of the creditor, the number of persons adversely affected, and the extent to which the creditor’s failure of compliance was intentional. In connection with the disclosures referred to in subsections (a) and (b) of , a creditor shall have a liability determined under paragraph (2) only for failing to comply with the requirements of , 1637(a)  of this title, or any of paragraphs (4) through (13) of , or for failing to comply with disclosure requirements under State law for any term or item that the Bureau has determined to be substantially the same in meaning under as any of the terms or items referred to in , or any of paragraphs (4) through (13) of . In connection with the disclosures referred to in subsection (c) or (d) of , a card issuer shall have a liability under this section only to a cardholder who pays a fee described in section 1637(c)(1)(A)(ii)(I) or or who uses the credit card or charge card. In connection with the disclosures referred to in , a creditor shall have a liability determined under paragraph (2) only for failing to comply with the requirements of , of paragraph (2) (insofar as it requires a disclosure of the “amount financed”), (3), (4), (5), (6), or (9) of , or , of subparagraphs (A), (B), (D), (F), or (J) of (for purposes of paragraph (2) or (4) of ), or paragraph (4)(C), (6), (7), or (8) of , or for failing to comply with disclosure requirements under State law for any term which the Bureau has determined to be substantially the same in meaning under as any of the terms referred to in any of those paragraphs of or . With respect to any failure to make disclosures required under this part or part D or E of this subchapter, liability shall be imposed only upon the creditor required to make disclosure, except as provided in .

(b)

Correction of errors

section 1607 of this title section 1611 of this title section 1607(e)(1) of this titleA creditor or assignee has no liability under this section or or for any failure to comply with any requirement imposed under this part or part E, if within sixty days after discovering an error, whether pursuant to a final written examination report or notice issued under or through the creditor’s or assignee’s own procedures, and prior to the institution of an action under this section or the receipt of written notice of the error from the obligor, the creditor or assignee notifies the person concerned of the error and makes whatever adjustments in the appropriate account are necessary to assure that the person will not be required to pay an amount in excess of the charge actually disclosed, or the dollar equivalent of the annual percentage rate actually disclosed, whichever is lower.

(c)

Unintentional violations; bona fide errors

section 1635 of this titleA creditor or assignee may not be held liable in any action brought under this section or for a violation of this subchapter if the creditor or assignee shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. Examples of a bona fide error include, but are not limited to, clerical, calculation, computer malfunction and programing, and printing errors, except that an error of legal judgment with respect to a person’s obligations under this subchapter is not a bona fide error.

(d)

Liability in transaction or lease involving multiple obligors

When there are multiple obligors in a consumer credit transaction or consumer lease, there shall be no more than one recovery of damages under subsection (a)(2) for a violation of this subchapter.

(e)

Jurisdiction of courts; limitations on actions; State attorney general enforcement

section 1650(a) of this title section 1607 of this titleExcept as provided in the subsequent sentence, any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation or, in the case of a violation involving a private education loan (as that term is defined in ), 1 year from the date on which the first regular payment of principal is due under the loan. Any action under this section with respect to any violation of section 1639, 1639b, or 1639c of this title may be brought in any United States district court, or in any other court of competent jurisdiction, before the end of the 3-year period beginning on the date of the occurrence of the violation. This subsection does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action, except as otherwise provided by State law. An action to enforce a violation of section 1639, 1639b, 1639c, 1639d, 1639e, 1639f, 1639g, or 1639h of this title may also be brought by the appropriate State attorney general in any appropriate United States district court, or any other court of competent jurisdiction, not later than 3 years after the date on which the violation occurs. The State attorney general shall provide prior written notice of any such civil action to the Federal agency responsible for enforcement under and shall provide the agency with a copy of the complaint. If prior notice is not feasible, the State attorney general shall provide notice to such agency immediately upon instituting the action. The Federal agency may—

(1)

intervene in the action;

(2)

upon intervening—

(A)

remove the action to the appropriate United States district court, if it was not originally brought there; and

(B)

be heard on all matters arising in the action; and

(3)

file a petition for appeal.

(f)

Good faith compliance with rule, regulation, or interpretation of Bureau or with interpretation or approval of duly authorized official or employee of Federal Reserve System

section 1607(b) of this title section 1607(c) of this title section 1607(e) of this title section 1611 of this titleNo provision of this section, , , , or imposing any liability shall apply to any act done or omitted in good faith in conformity with any rule, regulation, or interpretation thereof by the Bureau or in conformity with any interpretation or approval by an official or employee of the Federal Reserve System duly authorized by the Bureau to issue such interpretations or approvals under such procedures as the Bureau may prescribe therefor, notwithstanding that after such act or omission has occurred, such rule, regulation, interpretation, or approval is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.

(g)

Recovery for multiple failures to disclose

section 1635 of this titleThe multiple failure to disclose to any person any information required under this part or part D or E of this subchapter to be disclosed in connection with a single account under an open end consumer credit plan, other single consumer credit sale, consumer loan, consumer lease, or other extension of consumer credit, shall entitle the person to a single recovery under this section but continued failure to disclose after a recovery has been granted shall give rise to rights to additional recoveries. This subsection does not bar any remedy permitted by .

(h)

Offset from amount owed to creditor or assignee; rights of defaulting consumer

A person may not take any action to offset any amount for which a creditor or assignee is potentially liable to such person under subsection (a)(2) against any amount owed by such person, unless the amount of the creditor’s or assignee’s liability under this subchapter has been determined by judgment of a court of competent jurisdiction in an action of which such person was a party. This subsection does not bar a consumer then in default on the obligation from asserting a violation of this subchapter as an original action, or as a defense or counterclaim to an action to collect amounts owed by the consumer brought by a person liable under this subchapter.

(i)

Class action moratorium

(1)

In general

May 18, 1995October 1, 1995During the period beginning on , and ending on , no court may enter any order certifying any class in any action under this subchapter—

(A)

which is brought in connection with any credit transaction not under an open end credit plan which is secured by a first lien on real property or a dwelling and constitutes a refinancing or consolidation of an existing extension of credit; and

(B)

which is based on the alleged failure of a creditor—

(i)

section 1638 of this title to include a charge actually incurred (in connection with the transaction) in the finance charge disclosed pursuant to ;

(ii)

section 1638 of this title to properly make any other disclosure required under as a result of the failure described in clause (i); or

(iii)

section 1635(a) of this title to provide proper notice of rescission rights under due to the selection by the creditor of the incorrect form from among the model forms prescribed by the Bureau or from among forms based on such model forms.

(2)

Exceptions for certain alleged violations

Paragraph (1) shall not apply with respect to any action—

(A)

section 1606(c) of this title described in clause (i) or (ii) of paragraph (1)(B), if the amount disclosed as the finance charge results in an annual percentage rate that exceeds the tolerance provided in ; or

(B)

described in paragraph (1)(B)(iii), if—

(i)

section 1635(a) of this title no notice relating to rescission rights under was provided in any form; or

(ii)

proper notice was not provided for any reason other than the reason described in such paragraph.

(j)

Private educational lender

section 1650(a) of this title section 1638(e)(3) of this title 3

3 So in original. The closing parenthesis probably should not appear.

A private educational lender (as that term is defined in ) has no liability under this section for failure to comply with ).

(k)

Defense to foreclosure

(1)

In general

section 1639b(c) of this title section 1639c(a) of this titleNotwithstanding any other provision of law, when a creditor, assignee, or other holder of a residential mortgage loan or anyone acting on behalf of such creditor, assignee, or holder, initiates a judicial or nonjudicial foreclosure of the residential mortgage loan, or any other action to collect the debt in connection with such loan, a consumer may assert a violation by a creditor of paragraph (1) or (2) of , or of , as a matter of defense by recoupment or set off without regard for the time limit on a private action for damages under subsection (e).

(2)

Amount of recoupment or setoff

(A)

In general

The amount of recoupment or set-off under paragraph (1) shall equal the amount to which the consumer would be entitled under subsection (a) for damages for a valid claim brought in an original action against the creditor, plus the costs to the consumer of the action, including a reasonable attorney’s fee.

(B)

Special rule

Where such judgment is rendered after the expiration of the applicable time limit on a private action for damages under subsection (e), the amount of recoupment or set-off under paragraph (1) derived from damages under subsection (a)(4) shall not exceed the amount to which the consumer would have been entitled under subsection (a)(4) for damages computed up to the day preceding the expiration of the applicable time limit.

(l)

Exemption from liability and rescission in case of borrower fraud or deception

In addition to any other remedy available by law or contract, no creditor or assignee shall be liable to an obligor under this section, if such obligor, or co-obligor has been convicted of obtaining by actual fraud such residential mortgage loan.

Pub. L. 90–321, title I, § 130May 29, 196882 Stat. 157 Pub. L. 93–495, title IVOct. 28, 197488 Stat. 1518 Pub. L. 94–222, § 3(b)Feb. 27, 197690 Stat. 197 Pub. L. 94–240, § 4Mar. 23, 197690 Stat. 260 Pub. L. 96–221, title VI, § 615Mar. 31, 198094 Stat. 180 Pub. L. 100–583, § 3Nov. 3, 1988102 Stat. 2966 Pub. L. 103–325, title I, § 153(a)Sept. 23, 1994108 Stat. 2195 Pub. L. 104–12, § 2May 18, 1995109 Stat. 161 Pub. L. 104–29, § 6Sept. 30, 1995109 Stat. 274 Pub. L. 110–289, div. B, title V, § 2502(b)July 30, 2008122 Stat. 2857 Pub. L. 110–315, title X, § 1012(a)Aug. 14, 2008122 Stat. 3482 Pub. L. 111–22, div. A, title IV, § 404(b)May 20, 2009123 Stat. 1658 Pub. L. 111–24, title I, § 107May 22, 2009123 Stat. 1743 Pub. L. 111–203, title X, § 1100A(2)July 21, 2010124 Stat. 2107(, , ; , §§ 406, 407, 408(a)–(d), , ; , , ; , , ; , , ; , , ; , (b), , ; , , ; , , ; , , ; , , ; , , ; , title II, § 201(b), , , 1745; , title XIV, §§ 1413, 1416, 1417, 1422, , , 2148, 2153, 2157.)

Editorial Notes

Amendments

Pub. L. 111–203, § 1100A(2)2010—, substituted “Bureau” for “Board” wherever appearing.

Pub. L. 111–203, § 1416(a)(1)Subsec. (a)(2)(A)(ii). , substituted “$200” for “$100” and “$2,000” for “$1,000”.

Pub. L. 111–203, § 1416(a)(2)Subsec. (a)(2)(B). , substituted “$1,000,000” for “$500,000”.

Pub. L. 111–203, § 1416(a)(3)section 1639b(c) of this title section 1639c(a) of this title section 1639 of this titleSubsec. (a)(4). , inserted “, paragraph (1) or (2) of , or ” after “”.

Pub. L. 111–203, § 1422 section 1639 of this titleSubsec. (e). , substituted “section 1639, 1639b, 1639c, 1639d, 1639e, 1639f, 1639g, or 1639h of this title may also” for “ may also”.

Pub. L. 111–203, § 1416(b), in first sentence substituted “Except as provided in the subsequent sentence, any action” for “Any action” and inserted after first sentence “Any action under this section with respect to any violation of section 1639, 1639b, or 1639c of this title may be brought in any United States district court, or in any other court of competent jurisdiction, before the end of the 3-year period beginning on the date of the occurrence of the violation.”

Pub. L. 111–203, § 1413Subsec. (k). , added subsec. (k).

lPub. L. 111–203, § 1417lSubsec. (). , added subsec. ().

Pub. L. 111–24, § 201(b)section 1637 of this title section 1635 of this title section 1637(b) of this title section 1610(a)(2) of this title section 1637(a) of this title section 1637(b) of this title section 1637 of this title section 1635 of this title section 1637(a) of this title section 1637(b) of this title section 1610(a)(2) of this title section 1637(a) of this title section 1637(b) of this title2009—Subsec. (a). , in concluding provisions, substituted “In connection with the disclosures referred to in subsections (a) and (b) of , a creditor shall have a liability determined under paragraph (2) only for failing to comply with the requirements of , 1637(a) of this title, or any of paragraphs (4) through (13) of , or for failing to comply with disclosure requirements under State law for any term or item that the Board has determined to be substantially the same in meaning under as any of the terms or items referred to in , or any of paragraphs (4) through (13) of .” for “In connection with the disclosures referred to in subsections (a) and (b) of , a creditor shall have a liability determined under paragraph (2) only for failing to comply with the requirements of , , or of paragraph (4), (5), (6), (7), (8), (9), or (10) of or for failing to comply with disclosure requirements under State law for any term or item which the Board has determined to be substantially the same in meaning under as any of the terms or items referred to in or any of those paragraphs of .”

Pub. L. 111–22, § 404(b)section 1641 of this title section 1635 of this title, which directed insertion of “subsection (f) or (g) of ,” after “,”, was executed by making the insertion only in the introductory provisions to reflect the probable intent of Congress.

Pub. L. 111–24, § 107Subsec. (a)(2)(A)(iii), (iv). , added cl. (iii) and redesignated former cl. (iii) as (iv).

Pub. L. 110–315, § 1012(a)(1)(B)section 1638(e)(2) of this title section 1638(e) of this title section 1638(e) of this title2008—Subsec. (a). , in fourth sentence of concluding provisions, substituted “1635 of this title,” for “1635 of this title or” and inserted “of subparagraphs (A), (B), (D), (F), or (J) of (for purposes of paragraph (2) or (4) of ), or paragraph (4)(C), (6), (7), or (8) of ,” before “or for failing”.

Pub. L. 110–289, § 2502(b)(2)section 1638(b)(2)(C)(ii) of this title section 1638(b)(2)(C)(ii) of this title, in concluding provisions, inserted “or ,” before “or for failing to comply” and “or ” before “. With respect to”.

Pub. L. 110–289, § 2502(b)(1)Subsec. (a)(2)(A)(iii). , substituted “not less than $400 or greater than $4,000” for “not less than $200 or greater than $2,000”.

Pub. L. 110–315, § 1012(a)(1)(A)Subsec. (a)(3). , inserted “or 1638(e)(7)” after “section 1635”.

Pub. L. 110–315, § 1012(a)(2)section 1650(a) of this titleSubsec. (e). , inserted before period at end of first sentence “or, in the case of a violation involving a private education loan (as that term is defined in ), 1 year from the date on which the first regular payment of principal is due under the loan”.

Pub. L. 110–315, § 1012(a)(3)Subsec. (j). , added subsec. (j).

Pub. L. 104–291995—Subsec. (a)(2)(A)(iii). added cl. (iii).

Pub. L. 104–12Subsec. (i). added subsec. (i).

Pub. L. 103–325, § 153(a)1994—Subsec. (a)(4). , added par. (4).

Pub. L. 103–325, § 153(b)section 1639 of this title section 1607 of this titleSubsec. (e). , inserted at end “An action to enforce a violation of may also be brought by the appropriate State attorney general in any appropriate United States district court, or any other court of competent jurisdiction, not later than 3 years after the date on which the violation occurs. The State attorney general shall provide prior written notice of any such civil action to the Federal agency responsible for enforcement under and shall provide the agency with a copy of the complaint. If prior notice is not feasible, the State attorney general shall provide notice to such agency immediately upon instituting the action. The Federal agency may—

“(1) intervene in the action;

“(2) upon intervening—

“(A) remove the action to the appropriate United States district court, if it was not originally brought there; and

“(B) be heard on all matters arising in the action; and

“(3) file a petition for appeal.”

Pub. L. 100–5831988—Subsec. (a). substituted “in subsections (a) and (b) of section 1637” for “in section 1637” in third sentence and inserted provisions limiting liability of card issuer under this section to cardholders who pay fee or use credit card or charge card.

Pub. L. 96–221, § 615(b)section 1635 of this title1980—Subsec. (a). , in introductory text inserted provisions respecting applicability of , and in text following numbered pars. inserted provisions relating to disclosures required under sections 1637 and 1638 of this title.

Pub. L. 96–221, § 615(a)(1)Subsec. (a)(2)(B). , substituted provisions respecting recovery under this subparagraph in any class action or series of class actions, for provisions respecting recovery in a class action.

Pub. L. 96–221, § 615(a)(2)section 1635 of this titleSubsec. (a)(3). , inserted provisions relating to right of rescission under .

Pub. L. 96–221, § 615(a)(3)Subsec. (b). , substituted provisions relating to correction of errors within sixty days by a creditor or assignee, for provisions relating to correction of errors within fifteen days by a creditor.

Pub. L. 96–221, § 615(a)(3)section 1635 of this titleSubsec. (c). , substituted provisions relating to liability of a creditor or assignee in any action brought under this section or , for provisions relating to liability of a creditor in any action brought under this section.

Pub. L. 96–221, § 615(a)(3)Subsec. (d). , substituted provisions relating to liability in transaction or lease involving multiple obligors, for provisions relating to liability of subsequent assignees original creditor.

Pub. L. 96–221, § 615(a)(4)Subsec. (e). , inserted provisions relating to limitations on actions.

Pub. L. 96–221, § 615(a)(5)Subsec. (f). , inserted references to section 1607(b), (c), and (e) of this title.

Pub. L. 96–221, § 615(a)(6)section 1635 of this titleSubsec. (g). , inserted provisions relating to remedy under .

Pub. L. 96–221, § 615(a)(7)Subsec. (h). , substituted provisions relating to offset from amounts owed to the creditor or assignee, and rights of defaulting consumer, for provisions relating to offset from amounts owed to the creditor.

Pub. L. 94–240, § 4(1)1976—Subsec. (a). , inserted “or E” after “part D”.

Pub. L. 94–240, § 4(2)Subsec. (a)(2)(A). , designated existing provision as cl. (i) and added cl. (ii).

Pub. L. 94–240, § 4(3)Subsec. (a)(2)(B). , substituted “lesser of $500,000” for “lesser of $100,000”.

Pub. L. 94–240, § 4(4)Subsec. (b). , inserted “or part E of this subchapter” after “this part” and struck out “finance” after “required to pay a”.

Pub. L. 94–222Subsec. (f). inserted “or in conformity with any interpretation or approval by an official or employee of the Federal Reserve System duly authorized by the Board to issue such interpretations or approvals under such procedures as the Board may prescribe therefor” after “by the Board”, and substituted “interpretation, or approval” for “or interpretation” before “is amended”.

Pub. L. 94–240, § 4(5)Subsec. (g). , inserted “or part D or E of this subchapter” after “this part”, and “consumer lease” after “consumer loan”.

Pub. L. 93–495, § 408(a)1974—Subsec. (a). , substituted provisions setting forth determination of amount of liability of any creditor failing to comply with any requirement imposed under part D of this subchapter or this part, for provisions setting forth determination of amount of liability of any creditor failing to disclose in connection with any consumer credit transaction any information required under this part to be disclosed to specified persons.

Pub. L. 93–495, § 408(b)Subsec. (b). , inserted “for any failure to comply with any requirement imposed under this part,” before “if within”.

Pub. L. 93–495, § 408(c)Subsec. (c). , substituted “subchapter” for “part”.

Pub. L. 93–495, § 406Subsec. (f). , added subsec. (f).

Pub. L. 93–495, § 407Subsec. (g). , added subsec. (g).

Pub. L. 93–495, § 408(d)Subsec. (h). , added subsec. (h).

Statutory Notes and Related Subsidiaries

Effective Date of 2010 Amendment

section 1100A(2) of Pub. L. 111–203 section 1100H of Pub. L. 111–203 section 552a of Title 5Amendment by effective on the designated transfer date, see , set out as a note under , Government Organization and Employees.

Pub. L. 111–203 section 1400(c) of Pub. L. 111–203 section 1601 of this titleAmendment by sections 1413, 1416, 1417, and 1422 of effective on the date on which final regulations implementing that amendment take effect, or on the date that is 18 months after the designated transfer date, if such regulations have not been issued by that date, see , set out as a note under .

Effective Date of 2009 Amendment

Pub. L. 111–24May 22, 2009section 3 of Pub. L. 111–24 section 1602 of this titleAmendment by effective 9 months after , except as otherwise specifically provided, see , set out as a note under .

Effective Date of 2008 Amendment

Pub. L. 110–315, title X, § 1012(b)Aug. 14, 2008122 Stat. 3482

section 1638 of this title“The amendments made by this section [amending this section] shall have the same effective date as provisions referred to in section 1003(b) [set out as a note under ].”

, , , provided that:

Effective Date of 1980 Amendment

Pub. L. 96–221Mar. 31, 1980section 625 of Pub. L. 96–221 section 1602 of this titleAmendment by effective on expiration of two years and six months after , with all regulations, forms, and clauses required to be prescribed to be promulgated at least one year prior to such effective date, and allowing any creditor to comply with any amendments, in accordance with the regulations, forms, and clauses prescribed by the Board prior to such effective date, see , set out as a note under .

Effective Date of 1976 Amendment

Pub. L. 94–240Mar. 23, 1976section 6 of Pub. L. 94–240 section 1667 of this titleAmendment by effective on expiration of one year after , see , set out as an Effective Date note under .

Effective Date of 1974 Amendment

Pub. L. 93–495Oct. 28, 1974section 416 of Pub. L. 93–495 section 1665a of this titleAmendment by effective , see , set out as an Effective Date note under .

October 28, 1974Determination of Liability Prior to

Pub. L. 93–495, title IV, § 408(e)Oct. 28, 197488 Stat. 1519

Oct. 28, 1974“The amendments made by sections 406, 407, and 408 [amending this section] shall apply in determining the liability of any person under chapter 2 or 4 of the Truth in Lending Act [this part or part D of this subchapter], unless prior to the date of enactment of this Act [] such liability has been determined by final judgment of a court of competent jurisdiction and no further review of such judgment may be had by appeal or otherwise.”

, , , provided that: