By Marie Hogan and Jonathan Joseph
The President of the United States sent a wake-up call to the payday lending industry in his 2012 State of the Union speech that they are a target of federal enforcement action by the new Consumer Protection Financial Bureau or CFPB. President Obama exclaimed:
“If you’re a mortgage lender or payday lender or a credit card company, the days of signing people up for products they can’t afford with confusing forms and deceptive practices—those days are over.”
Almost a week before the speech, the Consumer Financial Protection Bureau, the newest federal agency whose name describes its mission, published its guidelines for examinations of short-term, small-dollar lenders (aka “payday lenders”). See www.consumerfinance.gov/guidance. Payday lenders and other non-bank financial service providers that have never been subject to direct federal regulation will now be under the jurisdiction of the CFPB.
The CFPB’s guidelines and the President’s call out indicate the payday lending industry has clearly been targeted due to perceived abuses. The initial guidelines for the payday lending industry consist of 17 pages and are a supplement to the CFBB’s 802 page examination handbook. The management and boards of directors of payday lenders that desire to comply with the CFPB’s regulations should familiarize themselves with the guidelines and implement expanded compliance systems.
WHAT is the CFPB’s purpose?
The CFPB will implement and enforce Federal consumer financial law consistently for the purpose of ensuring that all consumers have access to markets for consumer financial products and services and that the market for consumer financial products and services are fair, transparent, and competitive. They will especially target lenders engaging in unfair, deceptive or abusive acts or practices.
WHY payday lending?
Payday loans are supposed to be short term: 14 days. As the name implies, they’re supposed to provide emergency cash to enable consumers to cover short term necessities until the next pay day, when they theoretically should be able to repay the loan. Critics say this is typically not the case. Customers often roll-over their debt when they can’t repay it. They wind up living off that borrowed money at an annual interest rate of 400 to 600 percent or more.
Here’s how it works. Let’s say an individual needs $100 and the interest rate for that two week period is 15 percent. The customer writes a postdated check made out to the lender for $115. If the customer can’t pay that amount when the two weeks is up, the lender keeps $15, the loan is extended and another $15 fee is added on.
The CFPB is still in the fact gathering mode regarding the payday industry, holding hearings earlier this year in Birmingham, Alabama. However, the industry is number two in its list of priorities (see www.consumerfinance.gov/regulations/fall-2011-statement-of-regulatory-priorities). Richard Cordray, the CFPB’s executive director, said the agency will examine bank and non-bank institutions offering these short-term, small-dollar loans. At the Birmingham hearing, Cordray expressed this sentiment:
“We recognize that there is a need and a demand in the country for emergency credit. At the same time, it’s important that these products actually help consumers and not harm them. We know that some payday lenders are engaged in practices that present immediate risks to consumers and are illegal. Where we find these practices, we will take immediate steps to eliminate them.”
WHAT is the scope of CFPB’s responsibility?
CFPB has responsibility for specified federal consumer financial laws, such as Truth in Lending and the Fair Credit Reporting Act and certain Federal Trade Commission rules, such as the Credit Practices rule. The CFPB may also issue rules, and even without a rule, it may examine for unfair, deceptive or abusive acts or practices that cause significant financial injury to consumers, erode consumer confidence, and undermine the financial marketplace.
WHICH payday lenders can the CFPB examine?
Any payday lender, in any state, whether regulated or not, can be examined. The CFPB has the power to take enforcement actions against any payday lender. The first step for the CFPB is an examination of the company for compliance with federal consumer financial laws and unfair, deceptive or abusive acts or practices. An important point is that the examination guidelines merely provide a roadmap for what a company needs to do. The CFBP’s guidelines don’t provide detailed direction to a payday lender but the CFBP will provide notice through the examination process regarding the company’s demerits and legal violations. The CFPB has a scale of 1-5 (one being the best) that will be awarded in an examination. In general, all payday lenders should strive to earn 1 or 2 ratings in all sub-categories that are reviewed.
The CFPB may investigate and bring administrative enforcement proceedings or civil actions in Federal district court for violations of federal consumer financial laws. The CFPB additionally may obtain “any appropriate legal or equitable relief with respect to a violation of Federal consumer financial law” including: 1) rescission or reformation of contracts; 2) refund of money or return of real property; 3) restitution, disgorgement or compensation for unjust enrichment; 4) payment of damages or other monetary relief; 5) public notification regarding the violation; 6) limits on the activities or functions of the person against whom the action is brought; and 7) civil money penalties (which can go either to victims or to financial education).
The CFPB has no criminal enforcement authority; however, it may refer matters it believes may constitute criminal activity to the Department of Justice.
Payday Lender Examinations: What should management know?
The examination procedures are very much based on bank/financial institution formats. Here is our list of how this system works based on years of experience and working with the regulatory agencies:
First, policies and procedures must be in writing. That means the payday lender’s Board of Directors should establish detailed written procedures covering all significant compliance risks and processes.
Second, procedures must address compliance with federal consumer financial laws, as well as addressing other risks.
Third, the Board must be intimately involved in establishing policy, overseeing management and insisting that management comply with its policies.
Fourth, companies must train and monitor their employees.
Fifth, monitor audit procedures and processes and address all criticisms from internal and external auditors, state regulators and the CFPB.
Sixth, compliance must cover “soup to nuts”, meaning from product development to end of customer relationship and every significant step in between.
Seventh, appoint a compliance officer with real authority and responsibility. For smaller companies, this may be an employee who has other responsibilities, but take steps to assure that the compliance officer is qualified.
Eighth, the company must monitor any third party service providers for compliance with the above.
The CFBP examination objectives are:
1. To assess the quality of compliance risk management systems, including internal controls and policies;
2. To identify acts or practices that materially increases the risk of violations of federal consumer financial laws;
3. To gather facts that help determine whether the lender is engaged in acts or practices that violate the requirements of federal consumer financial laws;
4. To determine if a violation of a federal consumer financial law has occurred and whether enforcement actions are appropriate.
Which Federal Laws Are Applicable to Payday Lenders?
- TILA and Regulation Z—TILA is the Truth in Lending Act and Regulation Z require lenders to disclose loan terms and annual percentage rates. Regulation Z also covers advertising disclosures, proper crediting of payment, proper crediting of credit balances and periodic disclosures.
- EFTA and Regulation E—EFTA is the Electronic Funds Transfer Act which protects consumers engaging in electronic transfers, including that lenders may not require, as a condition of loan approval, the customer’s authorization for loan repayment through recurring electronic funds transfers.
- FDCPA—This is the Fair Debt Collection Practices Act which governs collection activities conducted by (a) third party collection agencies and (b) lenders collecting their own debt under an assumed name.
- FCRA— This is the Fair Credit Reporting Act which, with its regulations, governs furnishing information to credit agencies and the use of credit reports.
- GLBA – This is the Gramm-Leach-Bliley Act which, together with implementing regulations, requires that furnishers of information to consumer reporting agencies ensure the accuracy of data furnished to the consumer reporting system.
- ECOA—This is the Equal Credit Opportunity Act which, together with implementing Regulation B, sets requirements for accepting credit applications and providing notice of any adverse action. Discrimination against a borrower is prohibited, plus discrimination based on public assistance income or because the applicant has exercised any right under the Consumer Credit Protection Act is prohibited.
Some payday lenders do attempt to comply with applicable law. However, bad actors in the industry have contributed to the perception that widespread abuses exist. Companies in the “short term small dollar” lending business that desire to avoid potential CFPB enforcement sanctions should implement compliance systems and procedures modeled after those used in the banking industry designed specifically to comply with the laws listed above. This may entail adding risk and compliance officers to existing management teams, robust internal controls and better policies and procedures.
For additional information contact:
Jonathan Joseph at email@example.com; or
Marie Hogan at firstname.lastname@example.org.
By Marie Hogan*
Effective as of January 1, 2011, California’s sweeping new Money Transmission Act (the “MTAct”) became applicable to the money transmission business. The MTAct expanded the state’s regulation and license requirements for money transmitters by covering domestic money transmitters, including stored value device issuers and other businesses that offer new types of alternative payment and mobile applications. The new law assigns regulation and licensing authority to the California Department of Financial Institutions
The regulation of money transmission varies from state to state, but most states regulate domestic money transmission involving their residents. The MTAct now covers domestic money transmission by adding similar requirements and consolidates the regulatory and licensing mandates previously found in other California statutes. California’s regulation of money transmission had previously been of persons who help consumers transmit money overseas through the Transmission of Money Abroad Law, the issuance of traveler’s checks through the Travelers Checks Act and the issuance of payment instruments through the Payment Instruments Law.
Under the MTAct, it is a crime for a person to engage in the business of money transmission without a license or for a person to intentionally make a false statement, misrepresentation or false certification in a record filed or required to be maintained under the MTAct. Consequently, it is important that individuals and businesses planning to engage in money transmission activities comply with the MTAct and its licensing requirements. Due to rapid technological advances, many emerging, alternative or stored value payment businesses and their applications could be covered for the first time in California.
What is money transmission?
Money transmission is selling or issuing in California, or to or from persons located in California, payment instruments, stored value devices or receiving money or monetary value for transmission by electronic or other means.
“Payment instrument” means an instrument for the transmission or payment of money or monetary value, whether or not negotiable, such as, for example, a check, draft or money order. Excluded are issuers who also redeem the instrument for goods or services provided by the issuer or its affiliate, for example, a “rain check”.
“Stored value” involves monetary value representing a claim against the issuer that is stored on a digital or electronic medium and accepted as a means of redemption for money or as payment for goods or services. For example, Visa® gift cards. Excluded are cards issued by businesses that also redeem the card for goods or services provided by the issuer or an affiliate (“closed loop”), for example, cards issued by leading coffee chains.
“Receiving money for transmission” includes any transaction where money or monetary value is received for transmission within or outside the United States by electronic or other means. Thus, certain new mobile payment applications or emerging payment platforms not offered by banks or other regulated depository institutions could be within this category and subject to regulation and licensing.
Who can be a licensed money transmitter?
Only a corporation or limited liability company may be a California licensed money transmitter. Under limited circumstances, a licensee may have agents who are not licensed money transmitters. An example of a permissible non-licensed agent could include a local convenience grocery or liquor store that sells money orders as the agent for a bank.
- Anyone who sells a stored value instrument or creates stored value via a digital or electronic medium.
- Anyone who receives money for transmission, including by electronic means.
- Anyone who issues a payment instrument, for example, money orders.
Only licensed money transmitters or their permissible agents may issue or sell stored value instruments or payment instruments.
What does this law do?
The law does four things:
- Combines three existing licensing regimes into one. The three prior licenses were travelers check issuers, money order sellers and foreign money transmitters.
- Newly subjects domestic money transmission to licensing.
- Licenses certain stored value (i.e., open loop) issuers.
- Makes it a crime to engage in the money transmission business in California without a license.
What activities require a license?
Similar to most California licensing requirements, anyone who engages in, solicits, advertises or performs specified “money transmission” services in California or for California residents must be licensed.
Travelers check issuers, money order sellers and foreign money transmitters licensed in California prior to January 1, 2011, continue to be validly licensed. Any newly covered entity or business must file an application for a license by July 1, 2011.
Who is exempt from licensing?
All FDIC insured depository institutions are exempt, as are trust companies, credit unions, licensed broker dealers and payment systems serving exempt entities, such as an automated clearing house. Affiliates of a FDIC insured entity are not exempt, nor is any other entity holding another license from the California Department of Financial Institutions or the California Department of Corporations.
Due to rapid technological advances involving alternative payment platforms, mobile applications, smart phones and other communication devices, businesses planning to offer any type of service involving the electronic receipt and transmission of money (or other medium of exchange) or stored value devices or applications should carefully consider whether licensing is required in California pursuant to the MTAct.
For additional information related to the California Money Transmission Act or other financial services matters, please contact Marie Hogan or Jonathan Joseph at Joseph & Cohen, Professional Corporation.
*Marie Hogan is Of Counsel to Joseph & Cohen, Professional Corporation, San Francisco, CA.
© Joseph & Cohen, Professional Corporation. 2011. All Rights Reserved.
SAN FRANCISCO, CA – September 30, 2010. Joseph Law Corporation announced today that it has expanded its banking law expertise through the addition of Marie F. Hogan as Of Counsel to the firm. Ms. Hogan brings more than thirty years of high level banking experience to the firm with a core emphasis on representing commercial banks and financial service companies in connection with mortgage lending, bank operations, loan workouts, consumer law and compliance, credit and debit cards as well as bankruptcy and insolvency matters.
“We are extremely pleased that Marie Hogan is teaming up with Joseph Law. Her depth of industry knowledge as well as her hands-on experience in consumer compliance, loan workouts, regulatory and mortgage lending will benefit our clients in this post Dodd-Frank era. Marie really rounds out our ability to offer complete legal solutions to financial institutions,” said Jonathan Joseph, the firm’s chief executive officer.
Marie Hogan brings to Joseph Law Corporation many years of working hand in hand with the business people who develop necessary and useful financial products for their customers. In a regulated industry, Marie Hogan has the skills to navigate the many new regulations that will be enacted pursuant to the Dodd-Frank Act. The firm will now offer Ms. Hogan’s services to our banking clients to enable them to bring cutting edge products to the market and to help them comply with numerous new consumer, lending and other regulatory requirements.
Marie Hogan’s experience has included senior positions at Bank of America, World Savings and Schwab Bank. Ms. Hogan also served as chair of the Executive Committee of the Business Law Section of the California State Bar in 1998 and as a member or advisor to the Executive Committee from 1994 to the present. Marie Hogan is currently also a member of the Consumer Financial Services Committee of the State Bar’s Business Law Section.
Joseph Law Corporation is an AV® rated firm based in California that emphasizes complex banking, corporate, regulatory, securities and transactional matters for financial institutions, entrepreneurs, businesses, investors and venture capital firms. Joseph Law is known for sophisticated expertise, extraordinary commitment to clients, relationship-based services, and a range of specialized capabilities typically found only in the largest American law firms.
For additional information, please visit the firm’s website at www.josephlawcorp.com or call Jon Joseph at 415.817.9200.
This press release is provided as a general informational service to clients and friends of Joseph Law Corporation. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does this message create an attorney-client relationship. These materials may be considered Attorney Advertising in some states. Please note that prior results discussed in the material do not guarantee similar outcomes.