BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session AB 377 Assemblymember Mendoza As Amended June 23, 2009 Hearing Date: July 14, 2009 Financial Code SK:jd SUBJECT California Deferred Deposit Transaction Law (Payday Lending) DESCRIPTION This bill would increase the maximum value of a payday loan from $300 to $500 and would permit a payday loan customer to rescind the transaction no later than the end of the next business day. This bill would provide that a customer may elect to repay a loan using an extended repayment plan which includes at least four installments and specifies other related provisions, as noted. Under this bill, payday loan lenders would be required to pay a five-cent fee for each payday loan transaction to the Department of Corporations to be used for financial literacy education programs. This bill would require a lender who provides a payday loan over the Internet to give the required notices and written agreement to a customer electronically and would revise advertising requirements to specify that the restrictions apply also to advertising on the Internet. This bill also contains provisions concerning notice and licensing-related requirements. BACKGROUND Current law, the California Deferred Deposit Transaction Law (CDDTL; the Act), regulates payday loan lenders, and places a number of restrictions on payday loans. For example, the CDDTL requires that payday lenders be licensed by the Department of Corporations (DOC; the department) and permits lenders to charge a fee of 15% of the face amount of the check which cannot have a face value of more than $300. The Act also specifies disclosure and notice requirements, including that the annual percentage (more) AB 377 (Mendoza) Page 2 of ? rate (APR) and any charges and fees be disclosed to the consumer. DOC figures indicate, as of December 31, 2007, that there were 2,403 licensed payday loan locations in California. According to the California Budget Project's analysis of DOC data, approximately one million Californians took out payday loans in 2006, averaging about 10 loans per borrower. The following information was obtained from DOC's "2007 Annual Report: Operation of Deferred Deposit Originators under the California Deferred Deposit Transaction Law" (2007 Annual Report): -------------------------------------------------------- | |2006 |2007 | |--------------------------+--------------+--------------| |Total dollar amount of | | | |payday loans made |$2.55 billion |$2.97 billion | |--------------------------+--------------+--------------| |Total number of payday | | | |loans made |10.05 million |11.15 million | |--------------------------+--------------+--------------| |Total number of | | | |individual customers who |1.43 million |1.61 million | |obtained payday loans | | | |(repeat customers counted | | | |once) | | | -------------------------------------------------------- In addition, the 2007 Annual Report provides the following information with respect to individual payday loans made: --------------------------------------------------------- | |2006 |2007 | |---------------------------------------+--------+--------| |Average dollar amount of payday loans |$254 |$266 | |made | | | |---------------------------------------+--------+--------| |Minimum dollar amount of payday loans |$10 |$10 | |made | | | |---------------------------------------+--------+--------| |Maximum dollar amount of payday loans |$300 |$300 | |made | | | |---------------------------------------+--------+--------| |Average annual percentage rate (APR) |429% |424% | |---------------------------------------+--------+--------| AB 377 (Mendoza) Page 3 of ? |Average number of days of payday loan |16 |16 | |transactions | | | --------------------------------------------------------- Existing law required DOC to report to the Governor and Legislature by December 1, 2007, on its implementation of the payday lending law. On March 10, 2008, DOC released two reports to fulfill these statutory requirements, "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 study). In the first of these reports, DOC included 22 recommendations, which it divided into those intended to improve its oversight of the industry and those intended to strengthen its enforcement of the CDDTL. In addition, DOC included a number of policy options for consideration. The DOC report is based upon a survey of payday lenders and DOC's annual report for 2005-06. The AMPG study is based on an online survey of payday lenders, a telephone survey of borrowers, and five customer focus groups. AMPG's study was conducted between August and December 2007, for the 18-month period between April 15, 2006 through September 11, 2007. Both reports highlight that, while a payday loan is intended to be a short-term, one-time loan to meet emergency financial needs, a large number of Californians use payday loans on a regular, on-going basis and find that establishing a payday loan account "opens the door to a repetitive cycle of borrowing that is difficult if not impossible to end" (AMPG study). The DOC report made a number of regulatory oversight recommendations, some of which are incorporated into AB 377 as described in the Comments below. Last year, SB 1551 (Correa) included all or a portion of nine of DOC's 12 regulatory oversight recommendations. The measure failed passage in this Committee. This year's bill, AB 377, is substantially similar.CHANGES TO EXISTING LAW Existing federal law imposes a 36% APR on consumer credit, including payday loans, extended to members of the military and their dependents. (10 USC Sec. 987.) AB 377 (Mendoza) Page 4 of ? Existing law regulates, under the CDDTL, deferred deposit transactions, defined as a transaction in which a person defers depositing a customer's personal check until a specific date, pursuant to a written agreement for a fee. (Fin. Code Sec. 23000 et seq.) 1. Existing law places the following restrictions on payday lenders: a. Limits the maximum value of the check to $300; b. Permits payday lenders to defer the deposit of a customer's personal check for up to 31 days; and c. Limits the maximum fee to 15% of the face amount of the check. (Fin. Code Secs. 23035(a), 23036(a).) Existing law prohibits payday lenders from entering into a payday loan with a customer who already has a payday loan outstanding. (Fin. Code Sec. 23036(c).) This bill would increase the maximum value of the check from $300 to $500. This bill would permit a customer to rescind a payday loan transaction at no cost by notifying the payday lender that he or she wishes to rescind the transaction and returning the proceeds of the transaction to the payday lender no later than the end of the next business day. The payday lender must make reasonable and accessible provisions for a customer to contact the lender in a timely manner so that the customer may notify the lender of his or her intent to rescind the transaction. This bill would require each licensee to pay to the Commissioner of DOC (the commissioner) a fee of five cents for each deferred deposit transaction paid in full during the previous calendar year to be used for financial literacy education programs regarding deferred deposit transactions in California. This bill would prohibit a licensee from passing this fee on to its customers. This bill would provide that if a payday lender conducts a deferred deposit transaction with a customer over the Internet, the required notices and written agreement must be provided to the customer electronically and shall be available for the customer to download and print. If the customer is unable to download these documents, the lender shall mail the notices and agreement to the customer within 24 hours of the AB 377 (Mendoza) Page 5 of ? Internet transaction. This bill would require that deferred deposit transactions conducted over the Internet comply with the Uniform Electronic Transactions Act. 2. Existing law permits payday lenders to grant borrowers an extension of time or a payment plan to repay an existing payday loan and prohibits the lender from charging any additional fee in connection with the extension or payment plan. (Fin. Code Sec. 23036(b).) This bill would permit a payday loan customer who is unable to repay the loan when due to elect once in any 12-month period to repay the loan by means of an extended payment plan at no additional cost. This bill would provide that the extended payment plan would have to include at least four installments, which would have to be scheduled for dates on or after dates that the customer receives regular income. Unless otherwise agreed to by the customer and payday lender, the payment plan installments must be substantially equal in amount. This bill would specify that a customer may prepay an extended payment plan in full at any time without penalty and the payday lender would be prohibited from charging any interest or additional fees during the term of the extended payment plan. This bill would prohibit the payday lender from engaging in any collection activities or making any additional payday loans to the customer while the customer makes timely payments according to the extended payment plan. This bill would provide that customers would be limited to one extended payment plan during any 12-month period, as specified, and would provide that if the customer fails to pay any extended payment plan installment when due, the customer would be in default of the payment plan and the payday lender may immediately accelerate payment on the remaining balance. If the customer defaults, the payday lender would be able to take action to collect all amounts due. 3. Existing law provides that a customer who enters into a payday loan and offers a personal check pursuant to an agreement shall not be subject to any criminal penalty for failure to comply with the terms of the agreement. (Fin. Code AB 377 (Mendoza) Page 6 of ? Sec. 23035(b).) Under existing law the notice to the customer, the posted notice in the business location, and the payday loan agreement must all state that the customer cannot be prosecuted in a criminal action or threatened with prosecution. (Fin. Code Secs. 23035(c)(3), (d)(1), (e)(9).) This bill would prohibit a payday lender from referring or delivering a check taken in a deferred deposit transaction to a prosecutor, district attorney's diversion program, or other law enforcement official for purposes of collection or criminal prosecution unless the law enforcement official requests the check as part of an investigation not initiated by the lender. 4. Existing law prohibits a payday lender from advertising, printing, displaying, publishing, distributing, or broadcasting any statement or representation that is false, misleading, or deceptive, or that omits material information that is necessary to make the statements not false, misleading, or deceptive. (Fin. Code Sec. 23027(a).) Existing law prohibits a payday lender from placing an advertisement disseminated primarily in this state unless the lender discloses that the lender is licensed by the department pursuant to the CDDTL. (Fin. Code Sec. 23027(b).) Existing law provides that the commissioner may require payday lenders to maintain a file of all advertising copy for a period of 90 days from the date of its use. (Fin. Code Sec. 23027(e).) This bill would revise existing law which prohibits a licensee from making false, misleading, or deceptive statements in advertisements to also include advertisements made on the Internet. This bill would prohibit a payday lender from placing an advertisement primarily intended to reach California residents, including advertisements on the Internet, without disclosing that the lender is licensed by the department pursuant to the CDDTL. This bill would require this disclosure to be made in the same language as the primary language of the advertisement. This bill would require a payday lender to maintain a file of all advertising copy currently in use and retain copies for at least two years from the date of its final use. AB 377 (Mendoza) Page 7 of ? 5. Existing law 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. (Fin. Code Sec. 23035(c).) This bill would amend the existing payday loan notice requirements by: a. Requiring the notice provided by a licensee to a customer to be separate and distinct from the payday loan agreement; b. Requiring the notice to be initialed by the customer to acknowledge receipt, and requiring that the initialed copy by retained by the licensee; and c. Adding language regarding the bill's provisions concerning rescission and the repayment plan. 6. Existing law requires certain notices be clearly and conspicuously posted in the unobstructed view of the public by all licensed payday lenders in each business location in letters not less than one-half inch in height. (Fin. Code Sec. 23035(d).) This bill would require, rather than authorize, the use of a specific chart posted in each business location showing the fee and annual percentage rate applicable to different loan amounts and loan lengths. This bill would require that the notice posted clearly and conspicuously in the unobstructed view of the public include specified language concerning a customer's right to an extended payment plan. 7. Existing law requires an agreement to enter into a deferred deposit transaction to be in writing and provided to the customer. The written agreement must include specified items of information including, among other things, a full disclosure of the total amount of any fees charged, a clear description of the customer's payment obligations, the contact information of the lender, the date to which deposit of the check has been deferred, and an itemization of the amount financed, as specified. (Fin. Code Sec. 23035(e).) Existing law requires each payday loan agreement to be in writing in a type size of 10 point or greater, written in the AB 377 (Mendoza) Page 8 of ? 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. (Fin. Code Sec. 23035(g).) This bill would require the agreement to include notification to the customer: (1) of the extended payment plan and ability to rescind; and (2) that, if the payday loan is being transacted over the Internet, the customer agrees to conduct the transaction electronically and to receive the required notices and agreement electronically. 8. Existing law requires any person who offers, originates, or makes a deferred deposit transaction to obtain a license from the DOC and comply with specified requirements. (Fin. Code Sec. 23005.) Existing law requires payday lender applicants to submit an application for each location, pay an application fee of $200 and an investigation fee of $100, and to submit to various other requirements including a background check. (Fin. Code Secs. 23005, 23006.) Under existing law, licensees who violate the CDDTL are subject to suspension or revocation of their licenses and violations are subject to civil penalties of $2,500 per violation. (Fin. Code Secs. 23051, 23052.) This bill would require key individuals employed by payday lenders to submit fingerprints and a completed statement of identity and questionnaire with their application for licensure. The bill would also require lenders to notify the department within 10 days of any changes to key individuals named in the original application and submit fingerprints and a completed statement of identity and questionnaire for the new key individual within 30 days of the change. This bill would require applicants for a payday loan license to disclose whether any of the key individuals identified in its application have, during the last 20 years, conducted a payday loan business or similar business in any other state and, if so, the relevant time period and whether the person was found, either individually or as a representative of the applicant, to have violated any provision of that state's payday lending law or regulations, or any other similar laws or regulations. This bill would impose notification requirements when a lender or a key individual is found to have violated any applicable payday loan laws and regulations, or any similar laws and regulations governing lending, of any other state. AB 377 (Mendoza) Page 9 of ? This bill would require an applicant for a payday loan license to identify any product or service, in addition to payday loans, that the applicant intends to offer in its office(s) and which the applicant anticipates will generate over five percent of the gross monthly revenue of any of its offices. This bill would require a licensee to notify the department in writing that it intends to offer a new product or service at least 10 days prior to offering that product or service if the licensee anticipates that it will generate more than five percent of the gross monthly revenue of any office. COMMENT 1. Stated need for the bill The author writes: California is facing one of its most difficult economic crises in decades. While unemployment continues to rise, consumer access to credit is shrinking, and in many instances, is virtually unavailable. Payday loans are a financial tool which help "bridge the gap" for Californians who are banked and have a regular paycheck or other source of income, yet who are sometimes unable to meet their day-to-day obligations. In these tough times, unexpected auto repairs, medical expenses or other financial needs can put consumers in a short-term cash crunch. Used responsibly, a payday loan can help a consumer pay the rent or a utility bill and avoid a hefty late fee, cover a doctor's visit for a sick child or pay for auto repairs in order to have transportation to and from a job. For many, a payday loan is the best financial choice-or the only real choice-when they don't have enough money to make it until their next paycheck. AB 377 is intended to engage consumer interests, the payday lending industry, and the DOC in a dialogue about needed changes to state law. Using the DOC's study as a starting point, AB 377 is intended to improve the product for consumers, ensure that the product is used responsibly, allow for consumers with repayment issues to get a payment plan that helps them avoid a cycle of debt, and put additional requirements on the industry. 2. Is there an alternative? AB 377 (Mendoza) Page 10 of ? Proponents of payday lending argue that many borrowers have no alternative but to take out a payday loan. According to the Community Financial Services Association of America (CFSA), an association of payday lending companies, other options are too costly when compared with the fee for one payday loan. For example, borrowers may be charged late fees on credit cards or a non-sufficient funds fee if they bounce a check. Late payments on utility bills also may be costly to the consumer, particularly if they involve a reconnection fee. As noted in the DOC report, small, unsecured installment loans may be made by entities licensed under the California Finance Lenders Law (CFLL). DOC notes that the rates and fees on these loans are limited, however, to an APR of about 30%, compared to the average APR of 429% for a payday loan. According to DOC, "[t]his by itself is a strong inducement to make small, unsecured loans under the [payday loan law] as opposed to the CFLL." The DOC report also states that consumers "who do not have access to traditional sources of credit (credit cards, home equity lines of credit, etc.) do have alternatives to payday loans," noting that many banks and credit unions have cash advance programs that provide borrowers with cash that must be repaid generally within 35 days. Others argue that payday loan consumers also have other options ranging from borrowing money from friends or family, working out a payment plan with the creditor (e.g., credit card or utility company), getting an advance from an employer, obtaining emergency assistance from faith-based or community organizations, delaying purchases or obtaining a small consumer loan. Credit unions have small loan programs that are intended to be alternatives to payday loans. In addition, in February 2008 the Federal Deposit Insurance Corporation (FDIC) began a nationwide "Small-Dollar Loan Pilot Program" under which participating banks offer loans of up to $1,000; payment periods beyond a single paycheck cycle; APRs below 36%; low or no origination fees; streamlined underwriting criteria; and access to financial education. In many instances, the banks indicate that loans can be processed in less than an hour. The pilot is "designed to illustrate how banks can profitably offer affordable small-dollar loans as an alternative to high-cost credit products, such as payday loans and fee-based overdraft protection." The FDIC recently released an evaluation of the pilot after one year and found that it "has provided AB 377 (Mendoza) Page 11 of ? evidence that banks can offer reasonably priced alternatives to high-cost, short-term credit." Although the pilot is currently limited in its scope, these initial results are encouraging. Given the above arguably less expensive alternatives to a payday loan, the Committee should consider whether the provisions of this bill discussed below would, in fact, aid consumers struggling in the present economy or instead contribute to a cycle of debt. 3. Increasing the maximum value of a payday loan check from $300 to $500 Existing law provides that a payday loan check cannot have a face value of more than $300. This bill would increase that amount to $500. These amounts include the fee that payday lenders may impose; generally $45 and $75, respectively. This increase was included in the DOC report as a policy option (not recommendation), and was based on the premise that payday loans will continue to be available to help Californians meet short-term emergency cash needs, but that longer-term installment products will be available for those consumers unable to pay back the full amount of their payday loans on their due dates. The author and industry supporters argue that California's loan limit of $300 should be increased to $500 because the current limit is insufficient to meet the emergency cash needs of payday loan customers, has not been adjusted since it was implemented 13 years ago, and is out of line with the limits in other states. Despite those contentions, any increase in the loan limit must be evaluated not in terms of years since the last increase, but, instead, on the collateral effects of that increase on struggling consumers and whether any increase makes it even harder for them to pay off their debt. Previous concerns about the risks posed by payday loans are reflected in the Legislature's decision to place a cap on loan amounts. a.Whether current limit is sufficient to meet borrower's needs With respect to whether or not the current limit is sufficient to meet borrower's needs, DOC attempted to evaluate unmet demand due to loan limits by focusing on the number of customers who obtained more than one loan at the same time from different licensees. The sample survey, which analyzed AB 377 (Mendoza) Page 12 of ? transactions of 72.2% of California's payday loan customers, found that just 2.4%of the total customers in the sample obtained more than one loan at the same time from different licensees. DOC concluded that for the borrowers sampled, "the loan amount was not sufficient to meet [their] emergency credit needs. This may be due to the loan limit being too low or the licensees not willing to lend the amount needed by the borrower." When the AMPG survey asked borrowers whether the amount they had borrowed was the amount needed, over 60% of respondents indicated that the amount they borrowed was what they needed when reporting the minimum amount borrowed (79%) and the maximum amount borrowed (63%). Opponent Center for Responsible Lending (CRL) argues these findings demonstrate that most payday loan borrowers are satisfied with the amount they received and that borrowers do not need more than the law currently allows. From a policy standpoint, the cap on payday loans represents a decision by the Legislature that the product should only be used for a short term loan of no more than $300 (arguably due to the risks involved in higher loan amounts). If, in fact, the intent in enacting the CDDTL was to provide consumers with sufficient funds to meet all emergency credit needs, there would be no cap on the amount of the loan. Accordingly, the policy choice represented below is not whether the current pay day loan amount is sufficient to satisfy all short-term credit needs, but whether the increase would exacerbate the recognized risks associated with payday loans. Opponent consumer groups argue that this bill would in fact aggravate the risk to struggling consumers. (See Comment 3(b).) b. Effect of increasing loan limit to $500 As noted above, the AMPG study indicated that "[a]lthough most borrowers report turning to payday lenders as a one-time solution to an immediate financial need, most report that the establishment of a payday loan account opens the door to a repetitive cycle of borrowing that is difficult if not impossible to end." Payday lending has even been called a "business model that encourages chronic borrowing." (Michael Stegman, "Payday Lending: A Business Model that Encourages Chronic Borrowing," Economic Development Quarterly, Vol. 17 No. 1, February 2003.) AB 377 (Mendoza) Page 13 of ? Because borrowers often cannot repay a loan and meet other expenses, they must pay off their current loan with their paycheck and then very soon afterwards, sometimes immediately, take out another loan. The California Budget Project notes, "[l]ess than 4 percent of payday loans went to Californians who took out just a single loan during the entire year. More than 170,000 Californians took out 13 or more payday loans. Nearly half (48 percent) of payday loan borrowers in California take out payday loans at least once per month. . . " As a result, the public policy question raised by this bill is whether increasing the loan limit to $500 will harm payday loan consumers by ensuring that they are caught in a repetitive cycle and by making it even more difficult for them to pay off their debt. Opponents California Nurses Association/National Nurses Organizing Committee argue that increasing the maximum payday loan amount from $300 to $500 "would simply increase the debt carried by low-wage workers. . . . 80% reported to the Department of Corporations that the maximum loan of $300 was the amount they needed. Furthermore, the same consumers who are struggling to pay off a $300 debt are unlikely to be able to re-pay a $500 loan." CRL also writes "the high cost of payday loans, together with the short two-week repayment term, virtually ensures that cash-strapped borrowers will not be able to meet their basic expenses and pay off their loan at their next payday. It follows, then, that increasing the amount of debt payday borrowers owe will only increase the likelihood that payday borrowers will not be able to pay off the loan at their next payday, and will be more likely to land in the debt trap." Opponents also note that data from the California Budget Project shows that "a typical earner taking out a payday loan in California would be $148 short of the amount necessary to meet all essential household expenses and pay off a payday loan under current law. The same borrower would fare worse, and would be $348 short under the proposal to increase the loan amount to $500." According to CRL, a new study recently released by the group finds that 76% of borrowers, after repaying one payday loan, must take out another loan before their next paycheck. The study, entitled "Phantom Demand: Short-term Due Date Generates AB 377 (Mendoza) Page 14 of ? Need for Repeat Payday Loans, Accounting for 76% of Total Volume," found that half of all new loans are opened at the borrower's first opportunity (immediately or after a 24-hour or more waiting period where required). The study, which was largely based on data from Florida and Oklahoma-both states with a $500 loan limit-also found that 87% of new loans are opened within two weeks, or generally before the next payday, and only six percent of subsequent payday loans are taken out longer than a month after the previous loan was paid off. CRL notes: This rapid, widespread re-borrowing indicates that most payday borrowers are not able to both repay one of these loans and clear a monthly billing cycle before having to borrow again. In essence, the bulk of payday loan demand comes from borrowers who are taking out a payday loan to repay a payday loan. AB 377 would make payday loan re-borrowing even more problematic by raising the loan limit from $300 to $500. Borrowers unable to pay back $300 in one full payment in two weeks will find it even more difficult to repay $500. Given the concerns expressed above, DOES this bill's increase of the loan limit to $500 ensure that payday loan consumers are caught in a repetitive cycle of re-borrowing which may be "difficult if not impossible to end?" 4. Borrowers could elect to repay their loan under a repayment plan once a year This bill partially implements DOC's Option #6 which suggested requiring licensees to offer a payment plan with a minimum number of six, equal monthly installment payments to a borrower who is unable to repay a loan. This bill instead requires licensees to offer a payment plan with at least four substantially equal payments to any borrower who requests one, but limits the number of payment plans that may be requested to one per calendar year. According to the author, this provision is key to addressing the issue of re-borrowing, asserting that it offers "a failsafe solution-a no-cost extended payment plan that gives consumers longer to repay the loan and breaks the loan cycle." The author provides the following example: "If borrowers take out consecutive loans because they were $150 short of paying the loan off in full, then a repayment plan will solve this problem. The repayment option in our bill will give borrowers a two week reprieve before the four payment plan AB 377 (Mendoza) Page 15 of ? begins. Even at the $500 limit, the borrower would still be able to pay the loan off under the prescribed repayment plan." Opponent Sacramento Area Congregations Together (ACT) raises concerns about the repayment plan in the bill, stating: [E]xperience in other states such as Florida, Oklahoma, and Washington shows that payment plans do little to help end the debt trap. The average number of loans per borrower per year in those states is comparable to the national average of 9. Indeed, as proposed in AB 377, few borrowers would actually choose the payment plan. Today, many borrowers who are unable to repay their loan take out a new loan and use the proceeds to pay off the outstanding loan. . . . Under AB 377, borrowers would be given the choice of continuing that practice-which costs them $45 out of pocket-or opting for the payment plan, which requires an initial payment of $75. It is easy to see that many borrowers are going to choose the option that is cheaper in the short term, and simply take out a new payday loan. Few would choose the payment plan. CRL further explains that "[i]n states that have legislated these guidelines, the debt trap persists. Nearly two of every three loans still go to borrowers with twelve or more loans per year and less than one percent of transactions use the 'mandatory' payment plan." The problem with these plans, CRL explains, is that "there is little incentive for lenders to actually provide them. It's almost always better for the lenders to get the borrower to take out a new loan than it is to get them in a no-cost repayment plan." It is also important to note that the repayment plan in this bill largely mirrors the California Financial Services Association's (CFSA) Best Practices and Guidelines for Extended Payment Plans, and industry representatives have indicated that many in the industry, in particular CFSA members, already offer this plan to customers. Opponents have suggested that the payment plan provision be amended to provide for six fully amortizing installment payments at least 14 days apart. Consumers Union explains, "Six installment payments will bring the payments to $42.50, less than the $45 required to get a new loan in California." Also, they suggest that a borrower have the right to choose a repayment plan at least four times in a 12-month period. AB 377 (Mendoza) Page 16 of ? GIVEN THE CONCERNS EXPRESSED, DOES THE REPAYMENT PLAN IN THIS BILL ACTUALLY HELP A BORROWER "BREAK THE LOAN CYCLE," AS THE AUTHOR INTENDS OR ARE OPPONENTS RIGHT TO BE CONCERNED THAT THE PLAN WOULD BE INEFFECTIVE BECAUSE: (1) IT WOULD BE MORE EXPENSIVE TO TAKE ADVANTAGE OF A REPAYMENT PLAN THAN TO SIMPLY SIGN UP FOR A NEW LOAN; AND (2) EXPERIENCE IN OTHER STATES HAS SHOWN IT TO BE INEFFECTIVE? 5. Bill would specifically authorize internet payday lending This bill would implement DOC Recommendation #5 to require a lender who provides a payday loan over the Internet to electronically give to the customer all of the required notices and the written agreement. It would also revise existing advertising requirements to specify that the restrictions apply also to advertising on the Internet. The author writes in support of this provision, "[t]he Internet lending provisions of the bill are intended to protect consumers by requiring Internet loans to meet the same standards as loans provided in brick and mortar stores. Concerns over this language have been expressed to our office because opponents believe that the provisions will 'legitimize' Internet lending. We understand the concerns, but it is clear that Internet lending is taking place in California now. Therefore, it is vital that these loans are regulated." Opponents raise concerns that the bill explicitly authorizes Internet payday lending. They point out that such lending is not specifically authorized in California, and one might even argue that the CDDTL was never intended to cover Internet lending as it contained a number of requirements more appropriate to a bricks-and-mortar location. The California Labor Federation, AFL-CIO writes that "[t]here are enough risks in payday lending without expanding Internet lending, which makes it harder for consumers to understand the terms of the loan or hold a company accountable for overcharges. Many Internet lenders are based out of state, and many more are tribal entities, so the applicability of any state lending laws is questionable." IS IT APPROPRIATE TO STATUTORILY AUTHORIZE INTERNET PAYDAY LENDING? 6. Bill's five-cent fee to be used for financial literacy education programs AB 377 (Mendoza) Page 17 of ? This bill's requirement that licensees pay a five-cent fee for every payday loan transaction paid in full in the previous calendar year was not contained in the DOC report. The fee, which cannot be passed on to customers, must be used to support financial literacy education programs regarding payday loans in California. Others have also pointed out the importance of education in this area, writing "[t]oo often credit counseling and financial education begin when people are already in a debt crisis. According to Federal Reserve Chairman Alan Greenspan, a greater degree of financial literacy cannot only improve the financial status of families, but also 'help avoid or ameliorate the negative consequences of uninformed decisions.'" (Stegman, "Payday Lending: A Business Model that Encourages Chronic Borrowing," supra. at 28.) 7. Right to rescind This bill gives payday loan customers a right to rescind their payday loans by the close of the business day following the day on which the loan was taken out. Opponents point out that this language is already in the CFSA's Best Practices, and very few customers rescind their payday loans. 8. Other DOC recommendations included in the bill This bill implements several other recommendations contained in the DOC report, including, among others, clarifying that a licensee may not use the criminal process to collect a returned check in conjunction with a payday loan, even if the customer is not criminally prosecuted, and requiring licensees to keep copies of their advertising for at least two years and ensure the availability of advertising records for audit purposes. Other recommendations included in the bill require that the notice provided to borrowers before they enter into a payday loan agreement be a separate, distinct document from the written agreement, and that the licensee must also have the borrower initial a copy of the notice to acknowledge receipt and retain a copy of that acknowledgement. The bill also contains various licensing-related provisions suggested in the DOC report. 9. Opposition suggestions CRL and others have requested that the author amend the bill to incorporate DOC Option #5 which suggests that consumers be AB 377 (Mendoza) Page 18 of ? restricted "from having payday loans outstanding from any payday lender for more than three months in the previous 12 months. This would prevent borrowers from utilizing the payday loan as a long-term source of credit." This alternative is similar to the guidelines issued by the FDIC in which the FDIC noted that "when payday loans are used for a long period of time, the fees charged can rapidly exceed the amount borrowed and can create a serious financial hardship for the borrower." The author has indicated that he believes these loan limits are too restrictive and would have the potential to limit access to payday loans. Similarly, any call for a cap on the number of loans is equally problematic. Support : Alameda Merchant's Association; Brotherhood Crusade; California Black Chamber of Commerce; California Financial Service Providers; California Hispanic Chambers of Commerce; California State Conference of the National Association for the Advancement of Colored People; Check into Cash; Check n' Go of California; Community Financial Services Association; Hispanic Chamber of Commerce of Silicon Valley; Initiating Change in Our Neighborhoods, Community Development Department; League of United Latin American Citizens; Los Angeles Metropolitan Hispanic Chambers of Commerce; National Hispanic Christian Leadership Conference; Plaza de la Raza; Sacramento Asian and Pacific Islander Chamber of Commerce; Regional Hispanic Chamber of Commerce; Sacramento Hispanic Chamber of Commerce; San Diego County Hispanic Chamber of Commerce; Teamsters Joint Council 42, Urban League of San Diego County; Several individuals Opposition : AARP; African-American Network of Kern County; Black Economic Council; California ACORN; California Association of Food Banks; California Conference Board of the Amalgamated Transit Union; California Labor Federation; California Nurses Association/National Nurses Organizing Committee; California Reinvestment Coalition; California Teamsters Public Affairs Council; Center for Responsible Lending; Christ Our Redeemer, African Methodist Episcopal Church; City of Sacramento; City of San Francisco, Office of the Treasurer & Tax Collector; Consumer Federation of California; Consumers Union; El Futuro Credit Union; Engineers and Scientists of California; Fair Housing Council of Central California; Fresno Housing Alliance; Fresno Metro Ministry; Fresno West Coalition for Economic Development; Greenlining Institute; International Longshore & Warehouse Union; Latino Issues Forum; Professional & Technical Engineers, AB 377 (Mendoza) Page 19 of ? Local 21; Sacramento Area Congregations Together; San Francisco Asian Housing Task Force; UNITE HERE!; United Food and Commercial Workers Union, West Angeles Community Development Corporation; Western States Council; One individual HISTORY Source : Author Related Pending Legislation : AB 545 (Salas) would authorize the commissioner to implement a system enabling a licensee to receive specified information regarding a consumer's history with payday loans. This bill was referred to the Assembly Banking and Finance Committee but was never scheduled for hearing. Prior Legislation : SB 1551 (Correa, 2008) would have implemented all or a portion of nine of the 12 regulatory oversight recommendations made by DOC in its March 2008 report. The bill failed passage in this Committee. Prior Votes : Assembly Banking and Finance Committee (Ayes 10, Noes 1) Assembly Appropriations Committee (Ayes 9, Noes 0) Assembly Floor (Ayes 53, Noes 8) Senate Banking, Finance and Insurance Committee (Ayes 7, Noes 1) **************