SECTION 160:45-5-8. Advertising

(a)   Actually available terms. If 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.

(b)   Clear and conspicuous standard. Disclosures required by this section shall be made clearly and conspicuously.

(c)   Advertisement of rate of finance charge. If an advertisement states a rate of finance charge, it shall state the rate as an "annual percentage rate," using that term. If the annual percentage rate may be increased after consummation, the advertisement shall state that fact. If an advertisement is for credit not secured by a dwelling, the advertisement shall not state any other rate, except that a simple annual rate or periodic rate that is applied to an unpaid balance may be stated in conjunction with, but not more conspicuously than, the annual percentage rate. If an advertisement is for credit secured by a dwelling, the advertisement shall not state any other rate, except that a simple annual rate that is applied to an unpaid balance may be stated in conjunction with, but not more conspicuously than, the annual percentage rate.

(d)   Advertisement of terms that require additional disclosures.

(1)   Triggering terms. If any of the following terms is set forth in an advertisement, the advertisement shall meet the requirements of paragraph (d)(2) of this section:

(A)   The amount or percentage of any downpayment.

(B)   The number of payments or period of repayment.

(C)   The amount of any payment.

(D)   The amount of any finance charge.

(2)   Additional terms. An advertisement stating any of the terms in paragraph (d)(1) of this section shall state the following terms, 49/ as applicable (an example of one or more typical extensions of credit with a statement of all the terms applicable to each may be used):

(A)   The amount or percentage of the downpayment.

(B)   The terms of repayment, which reflect the repayment obligations over the full term of the loan, including any balloon payment.

(C)   The "annual percentage rate," using that term, and, if the rate may be increased after consummation, that fact.

(e)   Catalogs or other multiple-page advertisements; electronic advertisements.

(1)   If a catalog or other multiple-page advertisement, or an electronic advertisement (such as an advertisement appearing on an Internet Web site), gives information in a table or schedule in sufficient detail to permit determination of the disclosures required by paragraph (d)(2) of this section, it shall be considered a single advertisement if:

(A)   The table or schedule is clearly and conspicuously set forth; and

(B)   Any statement of the credit terms in paragraph (d)(1) of this section appearing anywhere else in the catalog or advertisement clearly refers to the page or location where the table or schedule begins.

(2)   A catalog or other multiple-page advertisement or an electronic advertisement (such as an advertisement appearing on an Internet Web site) complies with paragraph (d)(2) of this section if the table or schedule of terms includes all appropriate disclosures for a representative scale of amounts up to the level of the more commonly sold higher-priced property or services offered.

(f)   Disclosure of rates and payments in advertisements for credit secured by a dwelling.

(1)   Scope. The requirements of this paragraph apply to any advertisement for credit secured by a dwelling, other than television or radio advertisements, including promotional materials accompanying applications.

(2)   Disclosure of rates.

(A)   In general. If an advertisement for credit secured by a dwelling states a simple annual rate of interest and more than one simple annual rate of interest will apply over the term of the advertised loan, the advertisement shall disclose in a clear and conspicuous manner:

(i)   Each simple annual rate of interest that will apply. In variable-rate transactions, a rate determined by adding an index and margin shall be disclosed based on a reasonably current index and margin;

(ii)   The period of time during which each simple annual rate of interest will apply; and

(iii)   The annual percentage rate for the loan. If such rate is variable, the annual percentage rate shall comply with the accuracy standards in 160:45-5-1(c) and 160:45-5-6.

(B)   Clear and conspicuous requirement. For purposes of paragraph (f)(2)(A) of this section, clearly and conspicuously disclosed means that the required information in paragraphs (f)(2)(A)(i) through (iii) shall be disclosed with equal prominence and in close proximity to any advertised rate that triggered the required disclosures. The required information in paragraph (f)(2)(A)(iii) may be disclosed with greater prominence than the other information.

(3)   Disclosure of payments.

(A)   In general. In addition to the requirements of paragraph (c) of this section, if an advertisement for credit secured by a dwelling states the amount of any payment, the advertisement shall disclose in a clear and conspicuous manner:

(i)   The amount of each payment that will apply over the term of the loan, including any balloon payment. In variable-rate transactions, payments that will be determined based on the application of the sum of an index and margin shall be disclosed based on a reasonably current index and margin;

(ii)   The period of time during which each payment will apply; and

(iii)   In an advertisement for credit secured by a first lien on a dwelling, the fact that the payments do not include amounts for taxes and insurance premiums, if applicable, and that the actual payment obligation will be greater.

(B)   Clear and conspicuous requirement. For purposes of paragraph (f)(3)(A) of this section, a clear and conspicuous disclosure means that the required information in paragraphs (f)(3)(A)(i) and (ii) shall be disclosed with equal prominence and in close proximity to any advertised payment that triggered the required disclosures, and that the required information in paragraph (f)(3)(A)(iii) shall be disclosed with prominence and in close proximity to the advertised payments.

(4)   Envelope excluded. The requirements in paragraphs (f)(2) and (f)(3) of this section do not apply to an envelope in which an application or solicitation is mailed, or to a banner advertisement or pop-up advertisement linked to an application or solicitation provided electronically.

(g)   Alternative disclosures - television or radio advertisements. An advertisement made through television or radio stating any of the terms requiring additional disclosures under paragraph (d)(2) of this section may comply with paragraph (d)(2) of this section either by:

(1)   Stating clearly and conspicuously each of the additional disclosures required under paragraph (d)(2) of this section; or

(2)   Stating clearly and conspicuously the information required by paragraph (d)(2)(C) of this section and listing a toll-free telephone number, or any telephone number that allows a consumer to reverse the phone charges when calling for information, along with a reference that such number may be used by consumers to obtain additional cost information.

(h)   Tax implications. If an advertisement distributed in paper form or through the Internet (rather than by radio or television) is for a loan secured by the consumer's principal dwelling, and the advertisement states that the advertised extension of credit may exceed the fair market value of the dwelling, the advertisement shall clearly and conspicuously state that:

(1)   The interest on the portion of the credit extension that is greater than the fair market value of the dwelling is not tax deductible for Federal income tax purposes: and

(2)   The consumer should consult a tax adviser for further information regarding the deductibility of interest and charges.

(i)   Prohibited acts or practices in advertisement for credit secured by a dwelling. The following acts or practices are prohibited in advertisements for credit secured by a dwelling:

(1)   Misleading advertising of "fixed" rates and payments. Using the word "fixed" to refer to rates, payments, or the credit transaction in an advertisement for variable-rate transactions or other transactions where the payment will increase, unless:

(A)   In the case of an advertisement solely for one or more variable-rate transactions,

(i)   The phrase "Adjustable-Rate Mortgage," "Variable-Rate Mortgage," or "ARM" appears in the advertisement before the first use of the word "fixed" and is at least as conspicuous as any use of the word "fixed" in the advertisement; and

(ii)   Each use of the word "fixed" to refer to a rate or payment is accompanied by an equally prominent and closely proximate statement of the time period for which the rate or payment is fixed, and the fact that the rate may vary or the payment may increase after that period;

(B)   In the case of an advertisement solely for non-variable-rate transactions where the payment will increase (e.g., a stepped-rate mortgage transaction with an initial lower payment), each use of the word "fixed" to refer to the payment is accompanied by an equally prominent and closely proximate statement of the time period for which the payment is fixed, and the fact that the payment will increase after that period; or

(C)   In the case of an advertisement for both variable-rate transactions and non-variable-rate transactions,

(i)   The phrase "Adjustable-Rate Mortgage," "Variable-Rate Mortgage," or "ARM" appears in the advertisement with equal prominence as any use of the term "fixed," "Fixed-Rate Mortgage," or similar terms; and

(ii)   Each use of the word "fixed" to refer to a rate, payment, or the credit transaction either refers solely to the transactions for which rates are fixed and complies with paragraph (i)(1)(B) of this section, if applicable, or, if it refers to the variable-rate transactions, is accompanied by an equally prominent and closely proximate statement of the time period for which the rate or payment is fixed, and the fact that the rate may vary or the payment may increase after that period.

(2)   Misleading comparisons in advertisements. Making any comparison in an advertisement between actual or hypothetical credit payments or rates and any payment or simple annual rate that will be available under the advertised product for a period less than the full term of the loan, unless:

(A)   In general. The advertisement includes a clear and conspicuous comparison to the information required to be disclosed under 160:45-5-8(f)(2) and (3); and

(B)   Application to variable-rate transactions. If the advertisement is for a variable-rate transaction, and the advertised payment or simple annual rate is based on the index and margin that will be used to make subsequent rate or payment adjustments over the term of the loan, the advertisement includes an equally prominent statement in close proximity to the payment or rate that the payment or rate is subject to adjustment and the time period when the first adjustment will occur.

(3)   Misrepresentations about government endorsement. Making any statement in an advertisement that the product offered is a "government loan program", "government supported loan", or is otherwise endorsed or sponsored by an federal, state, or local government entity, unless the advertisement is for an FHA loan, VA loan, or similar loan program that is, in fact, endorsed or sponsored by a federal, state, or local government entity.

(4)   Misleading use of the current lender's name. Using the name of the consumer's current lender in an advertisement that is not sent by or on behalf of the consumer's current lender, unless the advertisement:

(A)   Discloses with equal prominence the name of the person or creditor making the advertisement; and

(B)   Includes a clear and conspicuous statement that the person making the advertisement is not associated with, or acting on behalf of, the consumer's current lender.

(5)   Misleading claims of debt elimination. Making any misleading claim in an advertisement that the mortgage product offered will eliminate debt or result in a waiver or forgiveness of a consumer's existing loan terms with, or obligations to, another creditor.

(6)   Misleading use of the term "counselor". Using the term "counselor" in an advertisement to refer to a for-profit mortgage broker or mortgage creditor, its employees, or persons working for the broker or creditor that are involved in offering, originating or selling mortgages.

(7)   Misleading foreign-language advertisements. Providing information about some trigger terms or required disclosures, such as an initial rate or payment, only in a foreign language in an advertisement, but providing information about other trigger terms or required disclosures, such as information about the fully-indexed rate or fully amortizing payment, only in English in the same advertisement.

49/  [Reserved.].

[Source: Amended at 17 Ok Reg 1587, eff 5-25-00; Amended at 21 Ok Reg 2678, eff 7-12-04; Amended at 25 Ok Reg 2164, eff 7-11-08; Amended at 26 Ok Reg 2474, eff 7-11-09]

Note

EDITOR’S NOTE: Due to technical error, when the 7-12-04 amendments to this Section (160:45-5-8) were published in the 2004 OAC Supplement, footnote 49/ in the Section was not replaced, resulting in the publication of two footnotes with the same number in both the 2004 and 2005 OAC Supplements. Because the two footnotes were identical, the second footnote 49/ was editorially removed when the rule was published in the 2006 Edition of the OAC.