BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
                         BANKING AND FINANCIAL INSTITUTIONS
                            Senator Steven Glazer, Chair
                                2015 - 2016  Regular 

          Bill No:             AB 2251        Hearing Date:    June 29,  
          2016
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          |Author:    |Mark Stone                                           |
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          |Version:   |June 13, 2016    Amended                             |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Eileen Newhall                                       |
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            Subject:  Student loan servicers:  licensing and regulation:   
                       Student Loan Borrower's Bill of Rights


           SUMMARY       Enacts the Student Loan Borrower's Bill of Rights, which  
          establishes a new licensing law applicable to student loan  
          servicers, administered by the Department of Business Oversight  
          (DBO), as specified.  
          
           DESCRIPTION
             
            1.  Contains findings and declarations regarding the magnitude  
              of outstanding student loan debt in the United States, the  
              challenges that this debt places on the state's economy, the  
              lack of consistent federal standards for student loan  
              servicing, and the results of a September 2015 report issued  
              by the Consumer Financial Protection Bureau (CFPB), which  
              documented several challenges faced by student loan  
              borrowers when attempting to gain answers to questions from  
              their servicers and gain assistance from their servicers in  
              correcting payment processing errors.  States the intent of  
              the Legislature to promote meaningful access to federal  
              affordable repayment and loan forgiveness benefits, reliable  
              information about student educational loans and loan  
              repayment options, and quality customer service and fair  
              treatment. 

           2.  Establishes a new division within the Financial Code, named  
              the California Student Loan Borrower's Bill of Rights,  







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              administered by DBO, which requires persons engaged in the  
              business of servicing student loans within this state, as  
              defined, to obtain licenses, as specified.  Significant  
              provisions of this new licensing law are as follows:

               a.     "Servicing" means any of the following: (1)  
                 receiving any scheduled periodic payments from a borrower  
                 or any notification that a borrower made a scheduled  
                 periodic payment and applying payments to the borrower's  
                 account pursuant to the terms of the student loan or the  
                 contract governing the servicing; (2) during a period  
                 when no payment is required on a student loan,  
                 maintaining account records for the student loan and  
                 communicating with the borrower regarding the student  
                 loan on behalf of the student loan's holder; or (3)  
                 interactions with a borrower, including, but not limited  
                 to activities to help prevent default on obligations  
                 arising from a student loan or conducted to facilitate  
                 the activities described in (1) or (2).

               b.     "Student loan" means any loan primarily to finance a  
                 postsecondary education and costs of attendance at the  
                 postsecondary institution, including, but not limited to,  
                 tuition, fees, books and supplies, room and board,  
                 transportation, and miscellaneous personal expenses.

               c.     "Engage in the business" means servicing student  
                 loans or disseminating information to the public relating  
                 to the servicing of student loans.

               d.     The following entities are exempted from the  
                 requirement to be licensed as student loan servicers:   
                 state- or federally-chartered depository institutions,  
                 insurance companies, nonprofit postsecondary educational  
                 institutions servicing student loans they extend to  
                 borrowers, and persons who are licensed in good standing  
                 pursuant to the California Finance Lenders Law (CFLL).  

               e.     The Commissioner of Business Oversight  
                 (commissioner) is given authority to promulgate  
                 regulations and issue orders to further the purposes of  
                 the division; conduct investigations and examinations of  
                 applicants and licensees, as specified; grant or deny  
                 licenses based on specified criteria; impose and collect  








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                 license fees and fees related to regulatory examinations,  
                 as specified; and pursue enforcement actions against  
                 licensees and unlicensed persons who are acting in a  
                 manner that requires licensure, as specified.

               f.     Licensees are required to submit to background  
                 information checks as a condition of licensure; maintain  
                 a minimum $25,000 surety bond on file with the  
                 commissioner; maintain a minimum net worth of $250,000 at  
                 all times; obtain approval from the commissioner prior to  
                 opening any new branch office; file any report required  
                 by regulation or order of the commissioner, including an  
                 annual report; submit to periodic examination by the  
                 commissioner; and do all of the following:

                    i.          Maintain staff adequate to meet the  
                     requirements of the division and every regulation and  
                     order of the commissioner.

                    ii.        Advise the commissioner of filing a  
                     petition for bankruptcy within five days of the  
                     filing.

                    iii.       Comply with all applicable state and  
                     federal laws and tax return filing requirements.

                    iv.        Provide information on a publicly  
                     accessible Internet Web site concerning affordable  
                     repayment and loan forgiveness options that may be  
                     available to borrowers and provide to borrowers, at  
                     least once per calendar year, written correspondence  
                     or an email describing those options, as applicable.

                    v.          Appoint a single point of contact for a  
                     borrower.

                    vi.        Respond to a qualified written request, as  
                     defined, by acknowledging receipt of the request  
                     within five business days, and within 30 business  
                     days, to the extent possible, provide information  
                     relating to the request and the applicable action the  
                     licensee will take to correct the account or an  
                     explanation for the licensee's position that the  
                     account is correct.








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                    vii.       Refrain from submitting adverse information  
                     regarding any payment that is the subject of a  
                     qualified written request to any consumer reporting  
                     agency during the 60 business-day period starting on  
                     the date the servicer receives a qualified written  
                     request related to a dispute on a borrower's  
                     payments.

                    viii.      Inquire of a borrower how to apply an  
                     overpayment by that borrower on his or her student  
                     loan, as specified.

                    ix.        Notify the commissioner before selling,  
                     assigning, or transferring the servicing of a student  
                     loan that results in a change in the identity of the  
                     party to whom the borrower is required to send  
                     payments or direct any communications concerning the  
                     student loan.

                    x.          If the sale, assignment, or other transfer  
                     of the servicing of a student loan results in a  
                     change in the identity of the party to whom the  
                     borrower is required to send payments or direct any  
                     communications concerning the student loan, notify  
                     that borrower in writing at least 15 days before he  
                     or she is required to send a payment to the new  
                     servicer.  This notification is required to contain  
                     specified information identifying and providing  
                     contact information for the new servicer, and  
                     specifying the date on which the new servicer will  
                     begin accepting payments.  The servicer is also  
                     required to transfer all information regarding a  
                     borrower, a borrower's account, and a borrower's  
                     student loan to the new licensee within 45 calendar  
                     days of a sale, assignment, or transfer.

                    xi.        Retain and maintain its records of  
                     servicing a borrower's student loan for a minimum of  
                     three years after the student loan has been  
                     transferred, assigned, or paid in full.  

               g.     Licensees are prohibited from doing any of the  
                 following:








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                    i.          Directly or indirectly employing any  
                     scheme, device, or artifice to defraud or mislead a  
                     borrower.

                    ii.    Engaging in any unfair or deceptive practice  
                     toward any borrower or misrepresenting or omitting  
                     any material information in connection with the  
                     servicing of a student loan, including, but not  
                     limited to misrepresenting the amount, nature, or  
                     terms of any fee or payment due or claimed to be due  
                     on a student loan, the terms and conditions of the  
                     student loan agreement, or the borrower's obligations  
                     under the student loan.

                    iii.   Obtaining property of a borrower by fraud or  
                     misrepresentation.

                    iv.    Misapplying payments made by a borrower to the  
                     outstanding balance of a student loan.

                    v.          Providing inaccurate information to a  
                     credit bureau regarding a borrower.

                    vi.    Failing to report both the favorable and  
                     unfavorable payment history of a borrower to a  
                     nationally recognized consumer credit bureau at least  
                     annually, if the licensee regularly reports  
                     information to a credit bureau.

                    vii.   Refusing to communicate with an authorized  
                     representative of the borrower who provides a written  
                     authorization signed by the borrower, as specified. 

                    viii.  Negligently or intentionally making any false  
                     statement or knowingly and willfully making any  
                     omission of a material fact in connection with any  
                     information or reports filed with the commissioner,  
                     DBO, or another governmental agency.  

               h.     The commissioner is granted several enforcement  
                 tools, including desist and refrain orders; civil  
                 penalties of up to $2,500 per violation; administrative  
                 penalties of up to $100 per day for failure to submit  








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                 reports; license suspension and revocation; and the  
                 ability to petition a court for ancillary relief on  
                 behalf of persons injured by the act or practice of a  
                 licensee.  Licensees are entitled to challenge  
                 enforcement actions brought by the commissioner pursuant  
                 to procedures specified in the Administrative Procedures  
                 Act (Chapter 5 of Part 1 of Division 3 of Title 2 of the  
                 Government Code).
           
          EXISTING LAW  grants DBO the authority to administer the CFLL  
          (Financial Code Section 22000 et seq.) and the California  
          Residential Mortgage Lending Act (CRMLA; Financial Code Section  
          50000 et seq.), both of which authorize the servicing of loans  
          taken out for personal, family, or household purposes, but  
          neither of which is specific to loans taken out to finance  
          postsecondary educational expenses.  
           
           COMMENTS
         
          1.  Purpose:   This bill is sponsored by Attorney General Kamala  
              Harris to provide increased accountability among student  
              loan servicers and to improve the quality of communications  
              between student loan borrowers and their student loan  
              servicers.  According to this bill's author, the licensure  
              program proposed in this bill will be able to protect  
              consumers from errors by student loan servicers and allow  
              servicers to document their adherence to California's rules.

           2.  Background:   Student loan debt is second in size only to  
              mortgage debt, among all types of debt held by U.S.  
              consumers.  According to CFPB, more than 41 million  
              Americans collectively owed more than $1.2 trillion in  
              outstanding federal student loan debt as of September, 2015.  
               In less than a decade, the volume of outstanding federal  
              student loan debt has more than doubled, rising from $516  
              billion in 2007 to over $1.2 trillion in the third quarter  
              of 2015.  During the same time period, the average student  
              loan debt burden of individual borrowers grew by nearly 60%,  
              rising from about $18,000 in 2007 to nearly $30,000 in the  
              third quarter of 2015.  

          Measure One, a consortium of the nation's six largest private  
              student loan lenders, estimated that total outstanding  
              private student loan debt totaled approximately $100 billion  








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              in the third quarter of 2015  
              (http://www.measureone.com/reports).  Approximately 92% of  
              outstanding student loan debt is federal, while 8% is  
              private.  

           3.  Types of federal student loans  :  According to the U.S.  
              Department of Education (USDOE), there are four main types  
              of postsecondary education loans under which borrowers have  
              outstanding balances.  Direct Loans are federal loans made  
              directly to borrowers by USDOE through the William D. Ford  
              Federal Direct Loan program.  Federal Family Education Loan  
              Program (FFELP) loans were originated by private lenders and  
              guaranteed by the federal government.  New FFELP loan  
              originations ended in 2010, pursuant to the SAFRA Act, but a  
              significant number of FFELP loans remain outstanding.   
              Federal Perkins Loans, which are co-funded by institutions  
              of higher education and the federal government, are  
              originated and administered by participating educational  
              institutions.  Private student loans are made by depository  
              and non-depository financial institutions, states,  
              institutions of higher education, and other entities.  

           4.  Who services student loans?  Ten entities are currently  
              authorized to service federal student loans, including  
              CornerStone, FedLoan Servicing (PHEAA), Granite State-GSMR,  
              Great Lakes Educational Loan Services, Inc.,  
              HESC/Edfinancial, MOHELA, Navient, Nelnet, OSLA Servicing,  
              and VSAC Federal Loans  
              (  https://studentaid.ed.gov/sa/repay-loans/understand/servicer 
              s  ).  A variety of institutions service private student  
              loans, including Citizens Bank, Discover, Navient, PNC Bank,  
              SallieMae, Wells Fargo Bank, AES, ACS, Aspire, Nelnet, and  
              several private educational institutions, among others.  A  
              different group of companies, including SoFi, Earnest,  
              CommonBond, CollegeAve, LendKey, U-Fi, and others offer  
              student loan borrowers the opportunity to refinance their  
              outstanding student loans, which can involve additional  
              servicers beyond those listed above.  

          As amended on June 13th, this bill applies its provisions to  
              entities which service federal or private student loans, or  
              both.  Although exemptions from the bill are provided for  
              depository institutions, insurance companies, nonprofit  
              private postsecondary educational institutions, and entities  








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              already licensed in good standing under the CFLL, the  
              majority of the entities listed immediately above will be  
              subject to this bill's provisions.  

           5.  What Rules Currently Apply to Student Loan Servicers?    
              Direct Loans, Perkins Loans, and FFELP loans are governed by  
              Title IV of the Higher Education Act of 1965.  Federal  
              regulations applicable to the William D. Ford Federal Direct  
              Loan Program are found in 34 CFR Part 685; those applicable  
              to FFELP loans are found in 34 CFR Part 682; and those  
              applicable to Perkins Loans are found in 34 CFR Part 674.   
              Student loan servicers are also required to comply with the  
              federal Fair Debt Collection Practices Act (15 USC Section  
              1692 et seq.) and the Rosenthal Fair Debt Collection  
              Practices Act (Civil Code Section 1788 et seq.). 

          This bill applies a layer of state rules on top of existing  
              federal student loan servicing regulations and state and  
              federal debt collection practices laws, and establishes a  
              regulatory framework under which a California regulator  
              (DBO) can sanction student loan servicers who fail to comply  
              with the new rules this bill establishes.  

           6.  Concerns about student loan servicing:   In October, 2014,  
              the CFPB's Student Loan Ombudsman issued a report analyzing  
              over 5,300 private student loan complaints received during  
              the 2013-14 federal fiscal year.  On the basis of those  
              complaints, the CFPB concluded that many consumers would  
              repay their private student loans, if they could qualify for  
              a repayment plan that reflected their current financial  
              circumstances.  Instead, many borrowers reported being  
              driven to default by their lenders, because no viable  
              repayment options were available to them.  

          Among the complaints received by CFPB about private student  
              loans:  1) Information about the availability of and  
              eligibility for loan modifications is not readily available;  
              borrowers also reported receiving conflicting or inaccurate  
              information from different customer service representatives  
              at the same lender or servicer.  2) Unlike federal student  
              loan borrowers, who are entitled, by law, to a range of  
              affordable loan modification options, including income-based  
              repayment plans, extended loan terms, and plans that start  
              with a small payment and increase over time, private student  








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              loan borrowers are not entitled to any relief.  Instead,  
              consumers complained that their private student loan lenders  
              and servicers tell them that they are not eligible for any  
              affordable repayment plans that would allow them to avoid  
              default.  3) Although some private student lenders offer  
              temporary forbearance in lieu of affordable repayment plans,  
              borrowers report that even these temporary forbearance  
              options carry burdensome enrollment fees and processing  
              delays.

          In May, 2015, the CFPB joined with USDOE and the Department of  
              the Treasury to launch a public inquiry into federal and  
              private student loan servicing practices.  That inquiry led  
              to publication of a September, 2015 report by the CFPB  
              titled, "Student Loan Servicing:  Analysis of Public Input  
              and Recommendations For Reform"  
              (  http://files.consumerfinance.gov/f/201509_cfpb_student-loan- 
              servicing-report.pdf  ).  Analyzing over 30,000 comments,  
              including over 8,000 comments from individual borrowers with  
              outstanding student loans, that report identified a myriad  
              of frustrations and challenges faced by student loan  
              borrowers.  Concerns related to five specific areas,  
              including borrower benefits and consumer protections,  
              servicing transfers, customer service and error resolution,  
              payment processing, and practices that affect specific  
              borrower segments, such as military families and older  
              borrowers.  

          An incomplete list of the problems identified by the CFPB and  
              described in that report:  Borrowers may not be informed  
              about the availability of certain alternative repayment  
              plans or may be encouraged by servicing personnel to enroll  
              in alternatives that may not be in their best interests.   
              Federal student loan borrowers may not be informed about  
              interest subsidies, loan forgiveness, or other benefits  
              associated with income-driven repayment plans.  Private  
              student loan borrowers in financial distress may not be able  
              to access accurate information about options to avoid  
              default.  Federal student loan borrowers may be enrolled in  
              repayment plans that do not reflect their choices due to  
              paperwork processing errors.  Borrowers encounter delays and  
              processing errors when attempting to certify their incomes  
              while enrolling in income-driven repayment plans.  Borrowers  
              requesting forbearance may experience processing delays and  








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              receive unclear information about eligibility requirements.   
              Servicers are slow to credit borrowers who have complied  
              with repayment incentives.  Borrowers with federal student  
              loans may not be made aware of available options to cancel  
              or discharge their student debt.  Borrowers with private  
              student loans may have no options available to discharge or  
              cancel their debt.  Borrowers seeking loan forgiveness under  
              the federal Public Service Loan Forgiveness program can  
              encounter service breakdowns that limit benefits and prolong  
              repayment.  Borrowers often do not receive notice that their  
              loans are being transferred to new servicers.  Variations in  
              payment policies across servicers may adversely affect  
              borrowers following servicing transfers, especially when new  
                                                   servicers elect not to continue certain payment arrangements  
              agreed to by previous servicers and fail to notify borrowers  
              of changes in repayment arrangements.  Payments may be lost  
              or may be processed but not posted to borrower's accounts  
              following a servicing transfer, even when borrowers follow  
              servicers' instructions.  Borrowers pursuing benefits that  
              require servicers to monitor payment histories report  
              breakdowns when attempting to reconcile conflicting  
              information following a transfer.  Borrowers' access to  
              payment histories and information about the ways in which  
              payments have been allocated between interest and principal  
              can be limited.  Borrowers may not be able to access  
              documentation about their loans, including their original  
              loan contracts.  Servicing personnel may provide borrowers  
              with conflicting, inconsistent, or inaccurate information.   
              Servicing personnel may decline to provide requested  
              assistance or fail to deliver on assistance that has been  
              offered.  Borrowers may encounter barriers when trying to  
              resolve account errors.  Borrowers' payments may be posted  
              late, resulting in additional accrued interest and late  
              fees, and preventing borrowers from receiving credit for  
              timely payments through incentive programs.  Servicers may  
              not process borrower payments in accordance with borrower  
              instructions; furthermore, in some instances, borrower  
              instructions may be honored, but only periodically and not  
              consistently.  Billing statements may not provide accurate  
              or complete information regarding when payments are due,  
              when late fees are assessed, when payments do and do not  
              qualify for specific borrower benefits and protections, and  
              regarding borrowers' repayment options.  Servicers may not  
              provide regular periodic billing statements or provide  








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              borrowers with billing statements too close to payment due  
              dates.  

          AB 2251 includes provisions intended to begin addressing the  
              findings of CFPB's inquiries into student loan servicing  
              practices.  

           7.  Summary of Arguments in Support:   Attorney General Kamala  
              Harris believes that many of the issues addressed by the  
              2012 Homeowner Bill of Rights are similar to those that have  
              surfaced in the student loan servicing industry.  "AB 2251  
              will protect students and provide clarity in a confusing  
              space.  By passing this legislation now, California may  
              successfully forestall a crisis like what homeowners  
              experienced at the height of the country's mortgage fraud  
              epidemic.  This bill would ensure that bad actors who profit  
              through harmful or deceptive business practices are held  
              accountable, and that students can trust in the state's  
              regulated responsibilities for servicers.  AB 2251 will  
              provide clear guidance to borrowers and empower students to  
              pursue their educations with confidence."

           8.  Summary of Arguments in Opposition:    The California  
              Association of Private Postsecondary Schools (CAPS) is  
              opposed to this bill unless it is amended.  CAPS raises  
              twelve concerns in its letter, several of which are  
              addressed below in the Amendments section of this analysis  
              (see amendments described in 9a, 9c, 9d, 9l, 9p, and 9t  
              below).  Additional amendments desired by CAPS, which have  
              not yet been agreed to by the author, include the following:  
               

               a.     Page 4, line 24:  Use of the words "directly or  
                 indirectly" is superfluous.  Use of the word indirectly  
                 will only lead to confusion and is redundant given the  
                 language of line 23, which states that the bill applies  
                 to a person engaged in the business of servicing a  
                 student loan within this state.

               b.     Page 5, line 13:  An exemption is provided for  
                 nonprofit postsecondary educational institutions, but not  
                 for for-profit postsecondary educational institutions.   
                 For-profit postsecondary educational institutions also  
                 provide first party financing to their students and  








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                 should also be exempted from the provisions of this bill.  
                  

               c.     Page 7, line 24:  The requirement to license  
                 entities that maintain records for students should be  
                 deleted.  Read broadly under the definitions in the bill,  
                 any employee of a school who somehow touches a student  
                 loan file will have to be licensed, an outcome which will  
                 be economically infeasible and will result in many  
                 companies being unable to afford to service student loans  
                 in California.  

               d.     Page 11, line 28:  The requirement that each license  
                 application be accompanied by financial statements  
                 prepared in accordance with generally accepted accounting  
                 principles (GAAP) and indicate a net worth of at least  
                 $250,000 should be deleted.  Small and medium-sized  
                 companies often do not follow GAAP, nor are they required  
                 to do so.  This bill's requirement that they do so places  
                 an extra financial burden on these companies.  The  
                 $250,000 net worth requirement is also an unfair barrier  
                 to entry for small entities and an unreasonable demand on  
                 the industry.  No new startup could enter the market  
                 given the high net worth requirement.  

               e.     Finally, many of the abuses this bill seeks to  
                 prevent are "already addressed in the federal fair Debt  
                 Collections Act and the California version of same.  This  
                 bill needs to be placed side by side with these two  
                 statutes and one will see that there is great duplication  
                 and overreaching occurring under this bill.  We strongly  
                 urge that this review take place to prevent chaos in the  
                 student loan industry."  
               
          9.  Amendments:   This bill is a work in progress.  Although the  
              author will be offering all of the amendments listed below,  
              additional amendments will likely be necessary to address  
              remaining outstanding issues (see Number 10 below).   
              Furthermore, DBO, which has not yet taken an official  
              position on the measure, is expected to recommend additional  
              amendments, which may significantly alter the measure, once  
              the Department is given authorization to provide formal  
              input.  Given the lack of a deadline forcing the Legislature  
              to act on this issue this year, it may be prudent to hold  








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              this bill in Committee to allow its provisions to be more  
              fully vetted and refined over the interim.  However, if this  
              Committee chooses to move the bill forward this year, it  
              should expect to see several additional changes to the  
              measure, before it is considered on the Senate Floor.  

               a.     Page 4, lines 9 and 10, strike "California Student  
                 Loan Borrower's Bill of Rights" and insert:  Student Loan  
                 Servicing Act.

               Page 4, lines 16 and 17, strike ""California Student Loan  
                 Borrower's Bill of Rights"" and insert:  Student Loan  
                 Servicing Act.

               b.     Delay the operative date of this bill to July 1,  
                 2017.  

               c.     Page 4, line 32, strike "insurance company,"

               d.     Page 6, line 8, strike "the dissemination to the"  
                 and strike lines 9 through 13.

               e.     Page 6, strike lines 20 through 23 and insert:  this  
                 state.

               f.     Page 6, lines 30 and 31, strike references to "a  
                 joint venture," and "a joint stock company,"  

               g.     Page 7, strike lines 3 through 11 and insert:   
                 Includes a statement of the reasons for the belief by the  
                 borrower, to the extent applicable, that the account is  
                 in error or that provides sufficient detail to the  
                 servicer regarding information sought by the borrower,  
                 such as a complete payment history for the loan or the  
                 borrower's account, a copy of the borrower's student loan  
                 promissory note, or the contact information for the  
                 creditor to whom the borrower's student loan is owed." 

               h.     Page 7, line 26, strike "student loan's holder" and  
                 insert:  owner of the student loan promissory note

               i.     Strike page 7, lines 27 through 30 and insert:   
                 Interacting with a borrower related to that borrower's  
                 student loan, with the goal of helping the borrower avoid  








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                 default on his or her student loan or facilitating the  
                 activities described in paragraph (1) or (2).

               j.     Page 7, line 34, strike "the" and insert:  a  

               aa.       Page 8, line 10, after "division" insert a comma  
                 and the following:   and may promulgate regulations and  
                 issue orders consistent with that authority.

               Page 8, strike lines 11 and 12.

               bb.       Page 16, strike lines 5 and 6 and insert:   
                 Develop policies and procedures reasonably intended to  
                 promote compliance with this division.  

               Page 16, strike lines 16 and 17.

               Page 16, strike lines 20 through 24 and insert the  
                 following:  Provide, free of charge on its Internet Web  
                 site, information or links to information regarding  
                 repayment and loan forgiveness options that may be  
                 available to its borrowers, and provide this information  
                 to its borrowers, via written correspondence or email, at  
                 least once per calendar year.  

               Page 16, strike lines 25 and 26.

               cc.       Page 17, line 12, strike "(j)" and insert:  (h)

               Page 17, line 15, after "and," insert:  if applicable, 

               Page 17, line 15, after "the" strike applicable 

               dd.       Page 18, between lines 10 and 11, insert the  
                 following:

               28135. (a) A licensee shall not be required to comply with  
                 the requirements of subdivision (h) of Section 28134 if  
                 the licensee reasonably determines that any of the  
                 following apply:
                   (1) A qualified written request is substantially the  
                 same as a qualified written request previously made by  
                 the borrower, for which the licensee has previously  
                 complied with its obligation to respond pursuant to  








          AB 2251 (Mark Stone)                                    Page 15  
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                 subdivision (h) of Section 18134, unless the borrower  
                 provides new and material information to support the more  
                 recent qualified written request.  New and material  
                 information means information that was not reviewed by  
                 the licensee in connection with a prior qualified written  
                 request submitted by the same borrower and that is  
                 reasonably likely to change the licensee's prior response  
                 related to that request.
                   (2) A qualified written request is overbroad.  A  
                 qualified written request is overbroad if the licensee  
                 cannot reasonably determine from the request the specific  
                 error that the borrower asserts has occurred on his or  
                 her account or the specific information the borrower is  
                 requesting related to his or her account.  To the extent  
                 a licensee can reasonably identify a valid assertion of  
                 an error or valid request for information in a qualified  
                 written request that is otherwise overbroad, the licensee  
                 shall comply with the requirements of subdivision (h) of  
                 Section 28134 with respect to that valid asserted error  
                 or request for information.
                   (3) A qualified written request is delivered to the  
                 licensee more than one year after the licensee sells,  
                 assigns, or transfers the servicing of the student loan  
                 that is the subject of the qualified written request to  
                 another servicer.  
               (b) If, pursuant to subdivision (a) a licensee determines  
                 that it is not required to comply with the requirements  
                 of subdivision (h) of Section 28134, it shall notify the  
                 borrower of its determination, and the basis for its  
                 determination, in writing not later than five business  
                 days after making such determination.  

               ee.       Page 18, line 14, delete "to, then" 

               Page 18, line 16, strike the first "a" and insert:  the 

               ff.       Page 18, strike lines 36 through 39 and page 19,  
                 strike lines 1 and 2.

               gg.       Page 19, strike line 14.

               hh.       Page 19, strike lines 17 through 22 and insert:   
                 Fail to accurately report each borrower's payment  
                 performance to at least one consumer reporting agency  








          AB 2251 (Mark Stone)                                    Page 16  
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                 that compiles and maintains files on consumers on a  
                 nationwide basis, upon acceptance as a data furnisher by  
                 that consumer reporting agency.  For purposes of this  
                 section, a consumer reporting agency that compiles and  
                 maintains files on consumers on a nationwide basis is one  
                 that meets the definition in Section 603(p) of the  
                 federal Fair Credit Reporting Act (15 USC Sec. 1681a(p)).

               ii.       Page 19, line 33, after the period, insert:   
                 Notwithstanding subdivision (b) of Section 28136, 

               Page 19, line 35, after "been" insert:  sold, 

               jj.       Page 20, strike lines 22 through 40 and page 21,  
                 strike lines 1 through 27.

               aaa.      Page 22, line 26, after "year," insert:   
                 including information regarding the number of loans that  
                 are sold, assigned, or transferred to another party.

               bbb.      Page 22, between lines 36 and 37, insert:

               28151. (a) At the end of the licensee's fiscal year, but in  
                 no case more than 12 months after the last audit  
                 conducted pursuant to this section, each licensee shall  
                 cause its books and accounts to be audited by an  
                 independent certified public accountant.  The audit shall  
                 be sufficiently comprehensive in scope to permit the  
                 expression of an opinion on the financial statements  
                 prepared in accordance with generally accepted accounting  
                 principles and shall be performed in accordance with  
                 generally accepted auditing standards.  The audit shall  
                 include a reconciliation of the licensee's trust accounts  
                 as of the audit date.
               (b) "Expression of an opinion" includes (1) an unqualified  
                 opinion, (2) a qualified opinion, (3) a disclaimer of  
                 opinion, or (4) an adverse opinion.  If a financial  
                 statement, report, certificate, or opinion of the  
                 independent certified public accountant is in any way  
                 qualified, the commissioner may require the licensee to  
                 take any action that the commissioner deems appropriate  
                 to address the qualification.  The commissioner may  
                 reject any financial statement, report, certificate, or  
                 opinion by notifying the licensee or other person  








          AB 2251 (Mark Stone)                                    Page 17  
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                 required to make the filing of the rejection and the  
                 reason therefor.  Within 30 days after the receipt of the  
                 notice, the licensee or other person shall correct the  
                 deficiencies.  Failure to correct the deficiencies is a  
                 violation of this division.  The commissioner shall  
                 retain a copy of all financial statements, reports,  
                 certificates, or opinions so rejected.
               (c) If a qualified or adverse opinion is expressed or if an  
                 opinion is disclaimed, the reasons therefor shall be  
                 fully explained.
               (d) The audit report shall be filed with the commissioner  
                 within 105 days of the end of the licensee's fiscal year.  
                  The report filed with the commissioner shall be  
                 certified by the certified public accountant conducting  
                 the audit.  The commissioner may promulgate rules  
                 regarding late audit reports.
               (e) If a licensee required to make an audit fails to cause  
                 an audit to be made, the commissioner may cause the audit  
                 to be made by an independent certified public accountant  
                 at the licensee's expense.  The commissioner shall select  
                 the independent certified public accountant by  
                 advertising for bids or by other fair and impartial means  
                 that the commissioner establishes by rule.  The  
                 commissioner may summarily revoke the license of a  
                 licensee who fails to file a certified financial  
                 statement prepared by an independent certified public  
                 accountant as required by this division or at the request  
                 of the commissioner.

               ccc.      Page 23, strike lines 12 through 38.

               On page 24, between lines 13 and 14, insert:  

               (b) Unless otherwise exempt pursuant to Section 28106,  
                 affiliates of a licensee are subject to examination by  
                 the commissioner on the same terms as the licensee, but  
                 only when reports from, or examination of, a licensee  
                 provides documented evidence of unlawful activity between  
                 a licensee and affiliate benefitting, affecting, or  
                 arising from the activities regulated by this division.
               (c) The cost of each examination of a licensee shall be  
                 paid to the commissioner by the licensee examined, and  
                 the commissioner may maintain an action for the recovery  
                 of the cost in any court of competent jurisdiction.  In  








          AB 2251 (Mark Stone)                                    Page 18  
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                 determining the cost of the examination, the commissioner  
                 may use the estimated average hourly cost for all persons  
                 performing examinations of licensees or other persons  
                 subject to this division for the fiscal year.
               (d) The statement of the findings of an examination shall  
                 belong to the commissioner and shall not be disclosed to  
                 anyone other than the licensee, law enforcement  
                 officials, or other state or federal regulatory agencies  
                 for further investigation and enforcement.  Reports  
                 required of licensees by the commissioner under this  
                 division and results of examinations performed by the  
                 commissioner under this division are the property of the  
                 commissioner.

               Page 24, strike lines 18 through 20 and insert:

               (f) Notwithstanding any provision of this division, the  
                 commissioner shall have the authority to waive one or  
                 more branch office examinations, if the commissioner  
                 deems that the branch office examinations are not  
                 necessary for the protection of the public, due to the  
                 centralized operations of the licensee or other factors  
                 acceptable to the commissioner.

               ddd.      Page 28, between lines 30 and 31, insert:

               28171. (a) If, upon inspection, examination, or  
                 investigation, the commissioner has cause to believe that  
                 a licensee or a person is violating or has violated any  
                 provision of this division or any rule or order  
                 thereunder, the commissioner or his or her designee may  
                 issue a citation to that licensee or person in writing,  
                 describing with particularity the basis of the citation.   
                 Each citation may contain an order to correct the  
                 violation or violations identified and provide a  
                 reasonable time period or periods by which the violation  
                 or violations must be corrected.  In addition, each  
                 citation may assess an administrative fine not to exceed  
                 two thousand five hundred dollars ($2,500) that shall be  
                 deposited in the State Corporations Fund.  In assessing a  
                 fine, the commissioner shall give due consideration to  
                 the appropriateness of the amount of the fine with  
                 respect to factors including the gravity of the  
                 violation, the good faith of the person or licensees  








          AB 2251 (Mark Stone)                                    Page 19  
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                 cited, and the history of previous violations.  A  
                 citation issued and a fine assessed pursuant to this  
                 section, while constituting punishment for a violation of  
                 law, shall be in lieu of other administrative discipline  
                 by the commissioner for the offense or offenses cited,  
                 and the citation and fine payment thereof by a licensee  
                 shall not be reported as disciplinary action taken by the  
                 commissioner.
               (b) Notwithstanding subdivision (a), nothing in this  
                 section shall prevent the commissioner from issuing an  
                 order to desist and refrain from engaging in a specific  
                 business or activity or activities, or an order to  
                 suspend all business operations to a person or licensee  
                 who is engaged in or who has engaged in continued or  
                 repeated violations of this division.  In any of these  
                 circumstances, the sanctions authorized under this  
                 section shall be separate from, and in addition to, all  
                 other administrative, civil, or criminal remedies.
               (c) If, within 30 days from the receipt of the citation,  
                 the person cited fails to notify the department that the  
                 person intends to request a hearing pursuant to Section  
                 28176, the citation shall be deemed final.  
               (d) After the exhaustion of the review procedures provided  
                 for in this section, the commissioner may apply to the  
                 appropriate superior court for a judgment in the amount  
                 of the administrative fine and an order compelling the  
                 cited person to comply with the order of the  
                 commissioner.  The application, which shall include a  
                 certified copy of the final order of the commissioner,  
                 shall constitute a sufficient showing to warrant the  
                 issuance of the judgment and order.

           10. Remaining Outstanding Issues:

                a.     Once amended as described in Number 9 above, this  
                 bill will impose several costly requirements on  
                                                                                          licensees, including a $250,000 net worth requirement,  
                 $25,000 surety bond requirement, and a requirement to  
                 submit audited financial statements prepared by an  
                 independent certified public accountant in accordance  
                 with GAAP to the commissioner on an annual basis.  These  
                 requirements may be appropriate for large servicers, but  
                 will likely create a significant barrier to licensure for  
                 small servicers and may impose a significant financial  








          AB 2251 (Mark Stone)                                    Page 20  
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                 burden on certain medium-sized servicers.  Several small  
                 and medium-sized student loan servicers that are required  
                 to obtain licenses pursuant to the provisions of this  
                 bill may be unable to afford to do so.  Other small and  
                 medium-sized student loan servicers may obtain licenses,  
                 but be forced out of business by the financial pressures  
                 imposed by ongoing licensure requirements.  It is unclear  
                 what will happen to the students whose loans are serviced  
                 by those entities.  It is also unclear whether this bill  
                 will result in a reduction of student loan financing  
                 among students who rely on entities that will no longer  
                 be able to do business in California if this bill is  
                 enacted.  

               This Committee may wish to ask this bill's author to commit  
                 to working with student loan servicers to devise an  
                 appropriate series of tiers, which reflect small, medium,  
                 and large servicers, and to more carefully tailor the  
                 financial requirements of this bill to address the  
                 financial capacities of servicers within each of the  
                 tiers.  

               b.     Several of this bill's requirements appear to  
                 overlap with federal student loan servicing requirements  
                 and with the requirements of the federal Fair Debt  
                 Collection Practices Act (15 USC Section 1692 et seq.)  
                 and the Rosenthal Fair Debt Collection Practices Act  
                 (Civil Code Section 1788 et seq.).  Because of the  
                 extensive nature of the most recent set of amendments to  
                 this bill and the limited time available in which to  
                 compare and contrast this bill with federal student loan  
                 servicing requirements and state and federal debt  
                 collection laws, the precise extent and nature of this  
                 overlap is not yet known.  

               This Committee may wish to ask this bill's author to commit  
                 to more fully exploring the extent and nature of this  
                 overlap, and to modifying and/or eliminating provisions  
                 of this bill that are duplicative, conflicting, or less  
                 protective of consumers than federal servicing  
                 requirements and state and federal debt collection  
                 practices laws, before bringing this bill to a vote on  
                 the Senate Floor.  









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          LIST OF REGISTERED SUPPORT/OPPOSITION
            
          Support
           
          Attorney General Kamala Harris (sponsor)
          National Association of Social Workers, California Chapter
           
          Opposition
               
          California Association of Private Postsecondary Schools


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