BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 377
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          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  








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            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  








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               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,  








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               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  








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            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  








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          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.









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           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  








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            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  








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            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  








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            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  








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            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.  








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          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  








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            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  








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          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