Section 5-1A-10

Use of lender information or trade name in solicitations.

(a) For purposes of this section, the following terms shall have the following meanings:

(1) LENDER. A bank, industrial bank, savings and loan association, savings bank, credit union, finance company, mortgage bank, mortgage broker, loan originator or holder of the loan, or other person who makes loans in this state, and any affiliate thereof, or any third party operating with the consent of the lender. A person shall not be considered a lender based on the person's former employment with the lender.

(2) PERSON. Any individual, firm, corporation, partnership, organization, association, or other legal entity.

(b) A person other than the lender may not use the trade name or trademark of the lender or a trade name or trademark confusingly similar to that of the lender in a solicitation for the offering of services or products without the consent of the lender unless the solicitation clearly and conspicuously states in bold-face type on the front page of the correspondence containing the solicitation all of the following:

(1) The name, address, and telephone number of the person making the solicitation.

(2) That the person making the solicitation is not affiliated with the lender.

(3) That the solicitation is not authorized or sponsored by the lender.

(4) That the loan information referenced was not provided by the lender.

(c) A person may not use a loan number, loan amount, or other specific loan information that is not publicly available in a solicitation for the purchase of services or products. Notwithstanding the foregoing, the prohibition does not apply to communications by a lender or its affiliates with a current customer of the lender or with a person who was a customer of the lender.

(d)(1) A person other than the lender may not use a loan number, loan amount, or, other than the existence of the loan, any loan specific information that is publicly available in a solicitation for the purchase of services or products unless the communication clearly and conspicuously states in bold-faced type on the front page of the correspondence containing the solicitation all of the following:

a. The name, address, and telephone number of the person making the solicitation.

b. That the person making the solicitation is not affiliated with the lender.

c. That the solicitation is not authorized or sponsored by the lender.

d. That the loan information used was not provided by the lender.

(2) The prohibition in subdivision (1) does not apply to communications by a lender or its affiliates with a current customer of the lender or with a person who was a customer of the lender.

(e) Any reference to an existing lender without the consent of the lender and any reference to a loan number, loan amount, or, other than the existence of the loan, any loan specific information appearing on the outside of an envelope, visible through the envelope window, or on a postcard, in connection with any written communication that includes or contains a solicitation for services or products is prohibited.

(f) It is not a violation of this section for a person to use the trade name of another lender in an advertisement for services or products to compare the services or products offered by the other lender.

(g) A lender or owner of a trade name or trademark may seek an injunction against a person who violates this section to stop the unlawful use of the trade name, trademark, or loan information. The person seeking the injunction shall not be required to prove actual damage as a result of the violation. Irreparable harm to the lender or owner shall be presumed. The lender or owner seeking the injunction may seek to recover actual damages.

(Act 2009-148, p. 301, §§1, 2.)