BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 377
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          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  








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            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  








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            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  








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               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;









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               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.   








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          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  








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          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

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