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Financial Services Law Insights and Observations


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  • New York expands disclosure requirements for creditors and debt collectors

    State Issues

    On October 8, the New York governor signed S737A, which requires creditors and debt collectors to clearly and conspicuously disclose to a debtor that communications are available in alternative formats. Among other things, the bill requires that creditors and debt collectors: (i) be assessed a civil penalty of up to $250 for violations of the law and up to $500 for each subsequent violation; and (ii) supply a phone number for consumers to request the letter in an alternative format. The bill also defines “communication,” “debt,” and “debt collector.”

    State Issues New York State Legislation Consumer Finance Debt Collection Disclosures

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  • New Jersey settles CFA and HIPAA matter with fertility clinic

    State Issues

    On October 12, the New Jersey attorney general and the Division of Consumer Affairs announced an action against a healthcare provider alleging that the defendant violated the New Jersey Consumer Fraud Act, the federal Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, and the HIPAA Security Rule by removing administrative and technological safeguards for protected health information (PHI) and electronic PHI (ePHI). The settlement resolves allegations that the defendant’s data breach allowed instances, between August 2016 and January 2017, of unauthorized access to the defendant’s network, which permitted at least one intruder to access consumer ePHI. Among other things, the defendant’s alleged violations include failing to: (i) ensure the confidentiality, integrity, and availability of ePHI; (ii) implement a mechanism to encrypt ePHI; (iii) review and modify security measures; (iv) implement proper procedures for creating, changing, and safeguarding passwords; and (v) implement verification procedures. According to the consent order, the defendant must pay $412,300 in civil penalties and $82,700 in investigative costs and attorney fees. The defendant is also required to implement extensive reforms to its data security system and encryption protocols to protect clients' PHI and prevent future breaches.

    State Issues New Jersey Privacy/Cyber Risk & Data Security State Attorney General Data Breach Consumer Protection

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  • DFPI issues third round of draft regulations for commercial financing disclosures

    State Issues

    On October 12, the California Department of Financial Protection and Innovation (DFPI) issued a third draft of proposed regulations implementing the requirements of the commercial financing disclosures required by SB 1235 (Chapter 1011, Statutes of 2018). As previously covered by InfoBytes, in 2018, California enacted SB 1235, which requires non-bank lenders and other finance companies to provide written consumer-style disclosures for certain commercial transactions, including small business loans and merchant cash advances. In July 2019, California released the first draft of the proposed regulations, initiated the formal rulemaking process with the Office of Administrative Law in September 2020, and subsequently released a second round of modifications in August (covered by InfoBytes here, here, and here). The third modifications to the proposed regulations follow a consideration of public comments received on the various iterations of the proposed text. Among other things, the proposed modifications:

    • Amend several terms including “approved advance limit,” “approved credit limit,” “at the time of extending a specific commercial financing offer,” “benchmark rate,” “broker,” “provider,” and “recipient funds.”
    • Define the term “specific commercial financing offer” to mean a written communication to a recipient related to specific payment amounts and costs of financing, but does not include a recipient’s name, address, or general interest in financing.
    • Amend certain disclosure requirements and thresholds, including specific circumstances that a provider can disregard when making calculations and disclosures.
    • Clarify APR calculation requirements and tolerances and outline disclosure criteria for specifying the amount of financing used to pay down or pay off other amounts owed by a recipient.
    • Amend duties and requirements for financers and brokers.
    • Amend criteria for specifying the amount of funding a recipient will receive.

    Comments on the third modifications must be received by October 27.

    State Issues State Regulators DFPI California Disclosures Commercial Finance APR Consumer Finance

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  • California enacts several consumer financial protection measures

    State Issues

    Recently, the California governor enacted several state bills relating to consumer financial protection. On October 6, AB 790 was signed, which expands upon provisions of the Consumer Legal Remedies Act that relate to “home solicitations of a senior citizen where a loan encumbers the primary residence of the consumer for purposes of paying for home improvement.” Specifically, the bill extends the Act’s protections to cover loans for assessments under the Property Assessed Clean Energy (PACE) program, or certain provisions regulating PACE under the California Financing Law, such that violations would qualify as unfair methods of competition and unfair or deceptive acts or practices.

    On October 6, AB 424 was signed, which enacts the Private Student Loan Collections Reform Act. The bill prohibits a private education lender or loan collector from making a written statement to a debtor attempting to collect a private education loan unless the private education lender or private education loan collector has certain related information to the debt and provides it to the debtor. In addition, among other things, the bill: (i) prohibits a private education lender or private education loan collector from bringing certain legal proceeding to collect a private education loan if the statute of limitations expired; (ii) creates a state-mandated local program by expanding the scope of the crime of perjury; and (iii) makes other provisions related to settlement agreements and payment notification requirements. The bill is effective July 1, 2022.

    On October 4, AB 1221 was signed, which specifies that service contract requirements must include certain elements and cancellation policies. Among other things, the bill: (i) requires a service contract to include a clear description and identification of the covered product; (ii) makes a violation of certain provisions of the Electronic and Appliance Repair Dealer Registration Law a misdemeanor; and (iii) specifies “that a service contract may be offered on a month-to-month or other periodic basis and continue until canceled by the buyer or the service contractor and would require a service contract that continues until canceled by the buyer or service contractor to, among other things, disclose to the buyer in a clear and conspicuous manner that the service contract shall continue until canceled by the buyer or service contractor and provide a toll-free number, email address, postal address, and, if one exists, internet website the buyer can use to cancel the service contract.” In addition, by expanding the scope of the crime in violation of the Electronic and Appliance Repair Dealer Registration Law, the bill imposes a state-mandated local program. The law is effective January 1, 2022.

    On October 4, AB 1405 was signed, which enacts the Fair Debt Settlement Practices Act. Among other things, the bill: (i) specifies that customers in a debt settlement plan have a window of three days to review disclosures prior to the contract taking effect; (ii) defines “debt settlement provider”; (iii) prohibits unfair, abusive, or deceptive acts or practices from a debt settlement provider and a payment processor when providing certain services; (iii) authorizes a consumer to terminate a contract for debt settlement services at any time without a fee or penalty of any sort by notifying the debt settlement provider; and (iv) authorizes a consumer to bring a civil action for violation.

    State Issues State Legislation California PACE Programs Consumer Finance UDAP Contracts Debt Collection Student Lending

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  • NYDFS awards funds to support underserved communities

    State Issues

    On October 7, NYDFS announced the first awards from the New York Community Development Financial Institution (CDFI) Fund to support access to safe and affordable banking services in historically underserved and redlined, low-income communities. According to the announcement, with a multi-year $25 million New York state-commitment, the CDFI Fund plans to allocate resources for the growth of CDFIs to assist in the delivery of affordable financial products and services and financial literacy programming to low- and moderate-income New York citizens. In addition, the CDFI Fund will expand “access to capital and technical assistance services for New York State small businesses and non-profit organizations.” In total, 31 CDFIs were selected to receive financial inclusion grants, which totaled nearly $5 million.

    State Issues NYDFS Redlining Consumer Finance CDFI

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  • California authorizes prepaid accounts to accept publicly administered funds provided no overdraft fees

    State Issues

    On October 5, the California governor signed SB 497, which, among other things, amends the definition of a “qualifying account” use for the purposes of depositing certain publicly administered funds. The amendment eliminates prepaid card accounts from the definition of “qualifying account,” and instead authorizes “a prepaid account or a demand deposit or savings account offered by or through an entity other than an insured depository financial institution, as specified, that is not attached to an automatic credit or overdraft feature, unless the credit or overdraft feature has no fee, charge, or cost, or it complies with the requirements for consumer credit under the federal Truth in Lending Act.” Specifically, persons or entities that are not insured depository financial institutions but who offer, maintain, or manage non-“qualifying accounts” are prohibited from soliciting, accepting, or facilitating the direct deposit of the publicly administered funds into the accounts.

    State Issues State Legislation California Consumer Finance Overdraft Prepaid Cards TILA

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  • DFPI reports sharp decrease in consumer lending and PACE financing

    State Issues

    On October 7, the Department of Financial Protection and Innovation (DFPI) released a report showing significant changes in consumer lending activity, likely attributable to a number of factors including the Covid-19 pandemic, state and federal financial assistance, student loan payment moratoriums, favorable interest rates, and increased reporting of alternative financing products. The 2020 annual report examined unaudited data gathered from finance lenders, brokers, and Property Assessed Clean Energy (PACE) administrators licensed under the California Financing Law, as well as new data from the “Buy Now, Pay Later” (BNPL) industry. Findings showed, among other things, a sharp decrease in certain types of consumer loans with BNPL products (often interest-free), decreasing overall by 41 percent in 2019. However, the report found that consumer loans, excluding BNPL, increased 94.8 percent during the same period—a result likely caused by an increase in originations of consumer loans secured by real estate. Finance lenders, including BNPL, originated nearly 12 million consumer loans in 2020 (a 530 percent increase over the prior year), with the top six BNPL lenders accounting for 91 percent of the total consumer loans originated in 2020. DFPI noted that a surge in BNPL unsecured consumer loans reported to the regulator shows that BNPL payment options are becoming increasingly popular. DFPI also discussed recent BNPL enforcement actions, which required companies to consider a consumer’s ability to repay a loan and subjected the companies to rate and fee caps.

    The report also examined PACE financing data. According to findings, there was an 18 percent decline in the total number of PACE assessment contracts funded and originated in 2020, and a 30 percent decrease in gross income for PACE program administrators since 2019.

    State Issues State Regulators DFPI PACE Programs Consumer Finance Covid-19 Buy Now Pay Later

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  • California passes legislation on automatic subscriptions

    State Issues

    On October 4, the California governor signed AB 390, which amends and adds Section 17602 of the Business and Professions Code regarding automatic subscription renewals. The law applies to businesses conducting automatic renewal or continuous services offers to California customers. Among other things, the bill requires that: (i) notice be provided at least 3 days before and at most 21 days before the expiration of the period for which a fee gift or trial, or promotional or discounted price, applies; (ii) notice be provided at least 15 days and not more than 45 days before the automatic renewal offer or continuous service offer renews; and (iii) a business allow a consumer to terminate the automatic renewal or continuous service offer without engaging in steps that may delay the consumer’s ability to immediately terminate the policy. The bill also specifies that a “‘free gift’ does not include a free promotional item or gift given by the business that differs from the subscribed product.” The law takes effect July 1, 2022.

    State Issues California State Legislation Auto-Renewal

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  • California to examine feasibility of public banking

    State Issues

    On October 4, the California governor signed AB 1177, which establishes the California Public Banking Option Act and requires the state treasurer to convene a commission to conduct a market analysis to determine the feasibility of establishing a program for California consumers who lack access to traditional banking services. The CalAccount Program, if implemented, would protect unbanked and underbanked consumers from predatory, discriminatory, and costly alternatives by providing “access to a voluntary, zero-fee, zero-penalty, federally insured transaction account . . . and related payment services at no cost to accountholders.”

    Among other things, the Act would (i) require the establishment of a process for accountholders to deposit funds into a CalAccount for no fee; (ii) impose a mandate requiring employers and hiring entities to maintain payroll direct deposit arrangements to allow workers to voluntarily participate in the program; (iii) require landlords to allow tenants to pay rent and security deposits by electronic funds transfers from a CalAccount; (iv) require a board (established to administer the program) to contract with and coordinate financial services vendors for the program and build an expansive financial services network of participating ATMs, banks, credit union branches, and other in-network partners to allow account holders to load or withdraw funds from their CalAccount without paying fees; (v) require the board to establish a no-fee process to allow all account holders to arrange for payments to a registered payee using a preauthorized electronic fund transfer from a CalAccount; (vi) establish rules governing the participation of individuals under the age of 18; (vii) provide a secure web-based portal and mobile application to allow individuals access and management of their CalAccount; and (viii) facilitate connectivity with other state and local government agencies and entities so public assistance programs and other disbursements may be directly deposited by electronic fund transfer into a CalAccount. The Act requires the commission to be convened on or before September 1, 2022, with the market analysis due on or before July 1, 2024 to the Chair of the Senate Committee on Banking and Financial Institutions and the Chair of the Assembly Committee on Banking and Finance.

    State Issues State Legislation California Consumer Finance Public Banking

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  • California governor signs legislation on debt collection

    State Issues

    On October 4, the California governor signed SB 531, which requires debt collectors to provide more information to consumers when assigned to collect a debt. Among other things, the bill: (i) expands the standards to allow Californians to verify a collector’s authority; (ii) bans creditors from selling the debt without first giving the debtor 30-day notice; (iii) requires debt buyers to provide a written statement to the debtor upon request; and (iv) prohibits, in certain circumstances, a debt collector from making a written statement to a debtor in an attempt to collect a delinquent consumer debt. The law is effective starting July 1, 2022.

    State Issues California Debt Collection Consumer Finance State Legislation

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