BILL ANALYSIS AB 377 Page 1 ASSEMBLY THIRD READING AB 377 (Mendoza) As Amended April 2, 2009 Majority vote BANKING & FINANCE 10-1 APPROPRIATIONS 9-0 ----------------------------------------------------------------- |Ayes:|Nava, Gaines, Evans, |Ayes:|De Leon, Ammiano, | | |Fong, Fuentes, Mendoza, | |Charles Calderon, | | |Ruskin, Swanson, Torres, | |Krekorian, Fuentes, | | |Tran | |Monning, Price, Solorio, | | | | |Torlakson | |-----+--------------------------+-----+--------------------------| |Nays:|Anderson | | | | | | | | ----------------------------------------------------------------- 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 AB 377 Page 2 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 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. 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 AB 377 Page 3 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% or more of the equity securities of the corporation, trust or association; and, b) For a partnership, an individual that owns or control, directly or indirectly, 10% or more of an 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. 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 Department of Corporations (DOC); d) Allows lenders to defer the deposit of a customer's personal check for up to 31 days; limits the maximum value AB 377 Page 4 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, 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; AB 377 Page 5 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 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 : According to the Assembly Appropriations, DOC has indicated that costs are minor and absorbable. 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. AB 377 Page 6 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 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 AB 377 Page 7 Law, California Department of Corporations, December 2007" 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. Analysis Prepared by : Mark Farouk / B. & F. / (916) 319-3081 FN: 0000519