BILL ANALYSIS AB 377 Page 1 Date of Hearing: April 13, 2009 ASSEMBLY COMMITTEE ON BANKING AND FINANCE Pedro Nava, Chair AB 377 (Mendoza) - As Amended: April 2, 2009 SUBJECT : Deferred deposit transactions. SUMMARY : Makes various changes to the California deferred deposit transaction law (CDDTL). Specifically, this bill : 1)Authorizes a customer, who is unable to repay a deferred deposit transaction (DDT) to elect, once in any 12-month period, to repay the loan to the licensee pursuant to an extended payment plan. 2)Specifies that an applicant for licensure, or an existing licensee within 10 days of any change, shall include fingerprints and a completed statement of identity and questionnaire for the following: a) Each officer, director and controlling person, if the applicant is a corporation or trust; b) Each general partner and controlling person, if the applicant is a partnership; and, c) The individual who is the sole proprietor, if the applicant is a sole proprietorship. 3)Requires an applicant to disclose in its application whether any person named in the application has, during the last 20 years, conducted a DDT business or similar business in any other state, and if so, the time period in which that business was conducted. 4)Mandates that an applicant shall identify in their application, or an existing licensee must provide notice within 10 days, if the applicant or licensee intends to offer any product or service in addition to DDTs that will generate in excess of 5% of the gross monthly revenue of any office. 5)Provides that no licensee shall place an advertisement disseminated primarily in this state for a DDT, including internet advertising unless in the printed or oral text of the AB 377 Page 2 advertisement it makes the following disclosure, "[Insert licensee's name] is licensed by the Department of Corporations pursuant to the California Deferred Deposit Transaction Law." 6)Requires that the disclosure mentioned in #5 above shall be in the primary language of the advertisement. 7)Specifies that licensees must maintain a file of all advertising for a period of two years from the date of its first use. 8)Clarifies that it is a violation of the DDTL for a licensee to refer or deliver a check taken in a DDT to a prosecutor or other law enforcement official for purposes of collection or criminal prosecution, unless the prosecutor or law enforcement official requests the check as part of an investigation not initiated by the licensee. 9)Provides that the current notice required to be disclosed to the consumer under current law, must be disclosed to consumers in a distinct and separate form, from the DDT agreement. Additionally, requires that a copy of the notice must be initialed by the borrower and retained by the borrower. 10)Requires that a DDT customer must be informed of their right to rescind a transaction at no cost, no later than the end of the next business day. 11)Requires that a DDT customer must be informed of the right to request an extended payment plan, at least once in any 12 month period. 12)Provides that a notice regarding the ability to enter into a repayment plan must be posted clearly and conspicuously in an unobstructed view of the public. 13)Defines "controlling person" as any of the following: a) For a corporation, trust, or association, an individual that owns or controls, directly or indirectly, 1- percent or more of the equity securities of the corporation, trust or association. b) For a partnership, an individual that owns or control, directly or indirectly, 10 percent or more of an AB 377 Page 3 outstanding interest in the partnership. 14)Defines "supervising manager" as an individual who acts as a direct supervisor for any person or persons who manage or operate one or more of the licensee's office where DDT transactions are made. Also provides that a "supervising manager" may typically work under a title such as district manager, regional manager, or a similar title, and has the authority to interpret and apply policies and procedures of the applicant. EXISTING STATE LAW : 1)Establishes the CDDTL (also known as the Payday Loan Law, Financial Code Section 23000 et seq.). The CDDTL: a) Applies to any person that makes a transaction in which the payday lender defers depositing a customer's personal check until a specific date, pursuant to a written agreement; b) Does not apply to a state- or federally-chartered bank, thrift, savings association, or industrial loan company; c) Requires applicants who wish to become payday lenders to submit an application for each location, an application fee of $200, and to submit to various other requirements including a background check, and prohibits anyone from engaging in the business of payday lending without a license from the DOC; d) Allows lenders to defer the deposit of a customer's personal check for up to 31 days; limits the maximum value of the check to $300; limits the maximum fee to 15% of the face amount of the check; and requires payday lenders to distribute a notice to customers prior to entering into any payday loan transaction that includes information about the loan and loan charges and a listing of the borrower's rights; e) Requires each payday loan agreement to be in writing in a type size of 10 point or greater, written in the same language that is used to advertise and negotiate the loan, signed by both the borrower and the lender's representative, and provided by the lender to the borrower, AB 377 Page 4 as specified; f) Allows payday lenders to grant borrowers an extension of time or a payment plan to repay an existing payday loan, but prohibits the lender from charging any additional fee in connection with the extension or payment plan; g) Requires each licensee to maintain a net worth of at least $25,000 at all times; and, h) Prohibits payday lenders from entering into a payday loan with a customer who already has a payday loan outstanding, and from doing any of the following: i) Accepting or using the same check for a subsequent transaction; ii) Permitting a customer to pay off all or a portion of one payday loan with the proceeds of another; iii) Entering into a deferred deposit transaction with a person lacking the capacity to contract; iv) Accepting any collateral or making any payday loan contingent on the purchase of insurance or any other goods or services; v) Altering the date or any other information on a check, accepting more than one check for a single payday loan, or taking any check on which blanks are left to be filled in after execution; vi) Engaging in any unfair, unlawful, or deceptive conduct or making any statement that is likely to mislead in connection with the business of DDTs; or, vii) Offering, arranging, acting as an agent for, or assisting a deferred deposit originator in any way in the making of a DDT unless the deferred deposit originator complies with all applicable federal and state laws and regulations. 2)Provides that licensees who violates the payday loan law are subject to suspension or revocation of their licenses, and that violations of the payday loan law are subject to civil AB 377 Page 5 penalties of $2,500 per violation; 3)Specifies that anyone that violates any provision of Section 670 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364) or any provision of Section 232 of Title 32 of the Code of Federal Regulations, as published on August 31, 2007, in Volume 72 of the Federal Register, violates the California payday loan law. [Financial Code, Section 22345] 4)Provides that a person that refuses to offer a payday to a member of the military is not in violation of the Military and Veterans Code provision relating to discrimination against members of the military. [Financial Code, Section 23038]. FISCAL EFFECT : unknown COMMENTS : According to the author, the intent of this bill is starting the conversation between industry, consumers and DOC regarding the future regulation of payday lending in the state. This bill incorporates several recommendations (discussed later in this analysis) that were included in two reports issued by DOC last year. Background : A payday loan, known more formally in California as a DDT, is a short-term loan in which a borrower writes a post-dated, personal check to a lender for a specified amount, which is capped by law. The date on the check is the date on which the parties agree that the borrower will repay the loan. The lender advances the borrower the amount on the check, less the fee, which is also capped by law. The lender does not cash the check at the time the loan is made. Both parties are aware that the borrower lacks sufficient funds to cover the check when the check is written. The assumption underlying the loan is that the borrower will repay the loan by the agreed-upon date, either by depositing sufficient funds in his or her checking account to cover the check, or by paying the lender in cash on the loan's due date, and having the lender return the original check to the borrower, without cashing it. California enacted its earliest version of a payday lending law in 1996, and gave jurisdiction over payday lenders to the AB 377 Page 6 Department of Justice (DOJ; SB 1959, Calderon, Chapter 682, Statutes of 1996). SB 898 (Perata, Chapter 777, Statutes of 2002), enacted the CDDTL; and shifted the responsibility for administering payday lending from DOJ to the DOC. Under the CDDTL, any lender who makes a payday loan must be licensed. Each licensee may defer the deposit of a customer's personal check for up to 31 days. The face amount of the check presented by a borrower may not exceed $300, and the fee charged by the licensee may not exceed 15% of the face amount of the check ($45 on a $300 check). Licensees may charge one non-sufficient funds fee, capped at $15, for checks that are returned by a customer's bank. Licensees may not directly, or indirectly charge any additional fees in conjunction with a payday loan. Licensees may not enter into a payday loan with a customer who already has a payday loan outstanding and may not allow a customer to use one loan to pay off another. Licensees are also forbidden from accepting any collateral for a payday loan or making any payday loan contingent on the purchase of any goods of services. Each payday loan must be made pursuant to a written agreement. Licensees must post their fees and charges prominently at their business locations. Costs for DOC to administer the payday loan law are borne by licensees. For fiscal year 2005-2006, licensees were each assessed $500 per location. DOC increased the assessment during the 2006-07 fiscal year to $941 per location. On March 10, 2008, the DOC released two reports to fulfill its requirements under Section 23057 of the Financial Code. The two reports are titled, "California Deferred Deposit Transaction Law, California Department of Corporations, December 2007" (DOC report) and "2007 Department of Corporations Payday Loan Study, December 2007, submitted to the California Department of Corporations by Applied Management Planning Group, in conjunction with Analytic Focus" (AMPG report). The key findings from the aforementioned reports: California is home to 447 licensed payday lenders, which operate 2,403 licensed payday lending stores. A total of 338 licensees indicated to AMPG that they were actively making loans during the study period of April 15, 2006 through September 11, 2007. AB 377 Page 7 Over two-thirds of all payday loans are made by only twelve licensees (AMPG). The largest 30 licensees made 82% of payday loans by dollar volume during 2006 (DOC). Over 61% of all licensees operate only one payday loan location (AMPG). Forty-nine of the state's 58 counties have at least one payday loan location. With 166 payday loan locations, the City of Los Angeles has the highest concentration of payday loan locations of any city in the state. The City of Sacramento is second, with 81 locations (AMPG). Sixteen licensees (3.5%) reported making over 115,000 payday loans over the Internet during 2006 (DOC). The average length of a payday loan is 16 days (DOC). Most payday lenders advertise using large, conspicuous signage on the outsides of their licensed locations (DOC). Many (70%) also advertise in local telephone directories; a smaller percentage advertise in local newspapers (29%) and Internet directories (27%; AMPG). Before agreeing to lend to a borrower, most licensees require the borrower to provide identification, proof of some form of income, a home address, employer's address, and checking account information. Licensees rarely conduct a credit check or verify whether the borrower has the ability to repay the loan, when their other debts and expenses are considered. Most payday loans can be obtained in under 15 minutes (DOC). Most lenders accept any kind of verifiable income as proof of income, other than unemployment checks or reports of self-employment (AMPG). Payroll checks, government assistance checks, retirement checks, disability checks, annuity and/or structured settlement checks are the most common forms of income verification accepted. Although all payday loan customers are required to have and show proof of an active checking account, only 5% of licensees require that borrowers have the qualifying income deposited directly into their checking accounts (AMPG). Most licensees require borrowers to complete an application for their first loan with that licensee. Future loans can be AB 377 Page 8 obtained without the need to complete another application, unless the applicant needs to update his or her information (DOC). Cash is the most common method of distributing loan proceeds to borrowers, although the option of electronically depositing the funds into customers' bank accounts is increasing in popularity among licensees (DOC). Eighty four percent of licensees' business is attributable to repeat customers (only sixteen percent comes from customers who take out only one loan). Nineteen percent of licensees' business is attributable to customers who took out more than 15 loans during the 18-month period studied by AMPG. Forty one percent of licensees offer some type of bonus (either cash or gifts) to customers who refer new business to the licensees. Cash is much more common than other types of gifts. Of those who offer cash bonuses, nearly one half offer $10 or less, and just under one third offer between $20 and $25 (AMPG). Very few licensees accept personal checks for repayment (this despite the fact that a post-dated check is required in order to obtain a payday loan). Customers commonly pay off their loans in cash. Nearly all lenders who do accept personal checks for repayment charge non-sufficient funds (NSF) fees for returned checks (DOC and AMPG). Fifty seven percent of licensees require customers to borrow at least $50. The majority of loans (63%) are between $200 and $255. Twenty lenders responded that the minimum amount they would lend was $255 (AMPG). Although lenders may charge up to $45 in loan fees to lend the maximum amount of $300, 14% of lenders charge less than $45 on $300 loans. The smallest amount charged on a $300 loan was $25, corresponding to a maximum loan amount of $275 (AMPG). Licensees reported making over $110 million in loans that were not repaid. Once loans have been in default for over 91 days, most lenders (72%) write the defaulted amount off as bad debt (AMPG). Licensees charge off approximately 3% of their checks as bad AB 377 Page 9 debt (DOC). This finding contrasts with AMPG's finding that 12% of all loans outstanding in an average month are over 91 days delinquent and in default. To prevent the loss of revenue due to defaulted loans, most lenders (87%) offer arrangements in which borrowers are allowed to pay back loans at a reduced rate or based on an agreed-upon schedule. Lenders reported that about 20% of loans issued during the eighteen-month study period required some type of workout arrangement (AMPG). However, less than 1% of all payday loan customers entered into formal, written payment plan arrangements during 2006 (DOC). Seventeen percent of payday loan customers received only one payday loan during 2006 (DOC). DOC also found that 57% of all payday loan customers received between two and five loans during 2006, 19% received between six and twelve loans, and 4% received between thirteen and eighteen loans during 2006. Customers who take out multiple loans in a year tend to do so in a consecutive fashion (with less than five days elapsing between paying the first one off and obtaining a second one). Of those with more than one loan, the average borrower had 2.8 loans outstanding. The most loans taken out by an individual in the last eighteen months is 26. The most loans taken out by a family during the last eighteen months is 47 (AMPG). Of those borrowers who obtained more than one payday loan in the last eighteen months, 28% used multiple locations of the same payday lender; 72% used multiple lenders (AMPG). Borrowers were asked whether the amount borrowed was the amount needed or the most the lender would loan. When asked in this way, 63% of borrowers said they borrowed the amount needed; 32% said they would have borrowed more, but the lender wouldn't loan it; and only 3% said that the lender offered more than the borrower needed. When borrowers were asked where they obtained the rest of the money they needed if they could not obtain all they needed from the payday lender, 8% said they borrowed the money from family or friends, 8% said they did not get the rest of the money they needed, 5% waited until their next payday, 3% went to another payday lender, and less than 1% borrowed money from AB 377 Page 10 a bank. Thirty-six percent of borrowers indicated they had used more than one payday lender. When asked why, 73% said they needed more money than one location would loan them at one time, 12% said they needed more money before the loan with the first company could be paid off, and 11% said they used one loan to pay off another. Report policy recommendations. 1)Clarify and confirm that licensees cannot refer delinquent payday loans to a local prosecutor for collection of returned checks 2)Enhance the regulation of electronic transactions. 3)Improve consumer disclosures by requiring that the notice provided to borrowers prior to entering into a payday loan agreement be a separate, distinct document from the written agreement; require the licensee to have the borrower initial a copy of the notice to acknowledge receipt; and require the licensee to retain a copy of the notice with the borrower's initials acknowledging receipt in the file. . 4)Require license applicants and existing licensees to notify DOC of other business that would be or is being conducted at the licensed location. 5)Expand consumer protections for payday lending conducted Over the Internet by requiring that notices and disclosures are provided to Internet borrowers, and that borrowers can download the agreement, notices, and disclosures. Alternately, if the borrower cannot download those documents, require the licensee to mail copies to the borrower within 24 hours. 6)Require that payment plans entered into between licensees and borrowers specify the payment dates and amounts of each payment, be in writing, and be signed by the borrower. 7)Require a written agreement signed by the borrower in order to extend the due date of a loan. Provide the licensee with an option to notify the borrower by mail of the approval to extend the due date of the loan, if the borrower elects not to AB 377 Page 11 sign the extension agreement. Like the recommendation above, this recommendation would help avoid misunderstandings between lenders and borrowers over repayment plan terms. 8)Require licensees to prominently disclose that borrowers have the right to request a written extension agreement and payment plan. 9)Require that specific language be used in payday loan advertising to disclose one's licensure by the Department of Corporations, and require that all advertising disclosures be in the same language as the advertising itself. 10)Require (rather than authorize) the use of a specific chart to compare payday loan fees and related cost information. Existing law requires licensees to post a schedule of all charges and fees, as specified, and provides an example of one way in which the information may be presented. 11)Require license applicants to list each person in charge of a payday lending location, and require that person to submit fingerprint information and a historical profile through a Statement of Identify and Questionnaire (SIQ). Require the licensee to notify DOC within ten days of a change in the person responsible for the location, and to submit new fingerprint information and an SIQ for that person. Require each licensee to notify DOC at least 60 days prior to a change of its officers, directors, or any other persons named in the application. 12)Confirm DOC's jurisdictional nexus over payday lending activities by stating that a payday lender is subject to the CDDTL when it conducts deferred deposit transaction business "in this state." 13)Expand the grounds for barring, suspending, or censuring persons managing or controlling payday lenders, and for denying, suspending, or revoking licenses 14)Allow DOC to issue administrative orders to prevent unsafe and injurious practices, and make these orders effective within 30 days, if no hearing is requested by the person(s) accused. Allow DOC to suspend or revoke a license for failing to maintain a surety bond, as required by law, through more expedient administrative orders. AB 377 Page 12 15)Increase the civil penalty for violating the payday loan law from $2,500 to $10,000 per violation. Allow administrative penalties of up to $2,500 per violation to be levied and collected through specified administrative hearing procedures. 16)Require the preparation and retention of accurate records and reports by licensees. 17)Authorize the Commissioner to subpoena all books and records of payday lenders. 18)Allow DOC to seek a court order to enforce any administrative decision awarding restitution, administrative penalties other than citations, and cost recovery, without having to file a civil suit and motion for summary judgment. 19)Provide that a citation is deemed final if the cited licensee fails to request a hearing within 30 days of receiving the citation. Allow DOC to issue a citation to assess an administrative penalty, not to exceed $2,500 per violation (rather than $2,500 per citation). 20)Streamline DOC's ability to void loans and order fees forfeited. Clarify that DOC has the authority to order the voiding of loans and the forfeiture of fees by administrative order, rather than by pursuing a civil suit. 21)Change the payday loan origination fee from a percentage of the face value of the check to a flat fee. 22)Increase the maximum amount of a payday loan from $300 to another amount, such as $500 or $750. 23)Adjust fees based on the loan amount, with a sliding scale that reduces the fee as the amount borrowed goes up. 24)Prohibit a licensee from entering into a deferred deposit transaction with a customer during the period-of-time that the customer has an outstanding deferred deposit transaction with another licensee. 25)Restrict a customer from having a payday loan outstanding with any payday lender for more than three months during a AB 377 Page 13 twelve-month period. 26)Require licensees to offer a payment plan with a minimum of six equal, monthly installment payments to all borrowers who have had continuous (consecutive) loans for three months, and prohibit licensees from charging customers any additional fees or interest in connection with the payment plan. 27)Require all licensees to use a uniform database to record all transactions in real time. As mentioned earlier, the bill currently under consideration implements several recommendations from the aforementioned reports. The committee may wish to consider inquiring with the author as to other possible recommendations that may be added to the bill, or those recommendations that have already been reviewed and subsequently not included in the bill. Certainly, payday lending has become a subject of some controversy, as several states have implemented 36% APR caps on payday loans, which in effect, eliminates the product because the costs of lending exceed the amounts that can be collected in fees. Another issue complicating small dollars loans is the virtual non-existence of consumer loans between the $300 payday limit, and $2500. Some credit unions have started short term loan programs very similar to payday loans, but are only open to members of the credit union, and often require direct deposit into a checking account. Obviously, a need exists for small consumer loans, and this issue will continue to need policy guidance and potential legislation. Current Federal Legislation. HR 1424 authored U.S. Rep. Luis Gutierrez would establish federal regulations and parameters for payday lending nationwide. Under this bill a payday loan is defined as a closed-end credit transaction, unsecured by any interest in the consumer's personal property and excluding any credit card transaction under an open end consumer credit plan, with a term of 91 or fewer days in which the amount financed does not exceed $2,000 with a finance charge exceeding an annual percentage rate of 36%. Additionally, this legislation requires pay day lenders to offer repayment plans S. 500 (Durbin), the Protecting Consumers from Unreasonable AB 377 Page 14 Credit Rates Act, would impose a federal usury cap of 36 percent Annual Percentage Rate (APR) on all consumer credit transactions. Prior State Legislation AB 2845 (Jones, Bass & Feuer). At one point, would have capped the APR on payday loans at 36%. Was amended in Assembly Banking & Finance committee to state the intent of the Legislature to enact changes recommended in the DOC reports. Held in Assembly Rules Committee. SB 1959 (Calderon, Chapter 682, Statutes of 1996): Enacted the earliest version of a payday lending law in California. Gave regulatory authority to the California Department of Justice. SB 898 (Perata, Chapter 777, Statutes of 2002). Enacted the Deferred Deposit Transaction Law and shifted the responsibility for administering the law to DOC; AB 7 (Lieu, Chapter 358, Statutes of 2007): Gave DOC the authority to enforce specified federal protections granted to members of the military and their dependents under the Payday Lending Law. SB 1551 (Correa): Would enact various changes intended to improve regulatory oversight of the payday lending based on recommendations found in the two reports referred to in this analysis. REGISTERED SUPPORT / OPPOSITION : Support None on file. Opposition None on file. Analysis Prepared by : Mark Farouk / B. & F. / (916) 319-3081