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Nevada approves regulation on earned wage access
On June 20, the Nevada Secretary of State approved Regulation NAC 604D, LCB File No. R096-23 (the Regulation), issued by the Nevada Department of Business and Industry, Financial Institutions Division, which established provisions to implement SB 290 (the Act) relating to earned wage access (covered by InfoBytes here).
The Regulation established the commissioner’s interpretation of the term “indirectly” as used in the definition of “employer-integrated earned wage access services” in the Act. As the Legislative Counsel’s Digest for the Regulation explained, “S.B. 290 defines employer-integrated earned wage access services to mean the delivery to a user of access to earned but unpaid income determined based on employment, income or attendance data obtained directly or indirectly from an employer.” In this context, the Regulation provided that data obtained “indirectly” from an employer means “verified data of the employment, income, or attendance of the user that is:” (i) “Obtained from an integrated system”; (ii) “Not directly obtained from the system of an employer”; and (iii) “Not directly obtained from the user.” The Regulation further provides that an “owner” was “a person who holds an ownership interest of at least 10 percent or more in an applicant for the issuance of a license as a provider that is a business entity.” The Regulation also clarified that providers are prohibited from charging cancellation fees of any kind.
The Regulation set forth $1,000 fees each for (i) the initial application for a license; (ii) the initial issuance of a license as a provider; (iii) the annual renewal of such a license; and (iv) the reinstatement of an expired license. Furthermore, the Regulation provided that each application for licensure by a provider that is a business entity must be accompanied by a list consisting of each person who holds an ownership interest in the applicant.
Pursuant to the Regulation, licensees will be required to report specific activity-based information to the state, including, non-exhaustively, the (i) total number and value of fees and expedited delivery fees paid by users within the prior year; (ii) the number of users with outstanding proceeds at the time of reporting and the value of such outstanding proceeds; (iii) the total number of requests for reimbursement of overdraft or NSF fees in the prior year; and (iv) voluntary tips received. Licensees will also be required to submit audited financial statements by April 15 each year (or, if not available, unaudited financial statements by April 15, followed by audited financial statements by June 30 of that same year). Licensees must retain records for at least six years and must not engage in misleading advertising. With respect to supervision, the Regulation establishes an hourly fee of $75 that the commissioner will charge for any supervision, examination, audit, investigation or hearing conducted pursuant to the provisions of the Act and provided that the commissioner can revoke or suspend licenses for any violations and has broad authority to request information during examinations or investigations.
This Regulation will go into effect on July 1.
DFPI proposes amendments to regulations under the California Debt Collection Licensing Act
On June 17, the California DFPI proposed to amend the California Code of Regulations relating to requirements under the Debt Collection Licensing Act (DCLA) and will be accepting comments through July 3. The proposed amendments would define the phrase "net proceeds generated by California debtor accounts" and also clarify annual reporting requirements for DCLA licensees.
Specifically, “net proceeds generated by California debtor accounts” will mean the amount retained by a debt collector from its California debt collection activity, and depending on the business activities of the licensee, will be further defined as follows: (i) for debt buyers, net proceeds are the amount collected minus the prorated purchase price paid for the debt, before deducting costs and expenses; (ii) for purchasers of non-charged-off or non-defaulted debt, net proceeds are calculated in the same fashion as debt buyers; and (iii) for all other debt collectors, net proceeds are the amount the collector receives from its clients, before deducting costs and expenses (where “client” means the company on whose behalf the debt collector has been contracted to collect on an account).
The proposed regulations also clarified annual reporting requirements and defined terms used within the report for DCLA licensees. Specifically, the regulations confirmed that licensees must submit an annual report, signed by a principal officer attesting to its accuracy and completeness, and that the report must be submitted electronically. Additionally, when completing the data requested in the report, licensees must count each California debtor account separately and the number of California debtor accounts collected in the preceding year (which is defined as the calendar year – January 1 through December 31) shall be the sum of (i) the total number of accounts collected in full; (ii) the total number of accounts resolved for less than the full amount; and (iii) the total number of accounts where partial payments were made but a balance remains due. The report must also include the total number and dollar amount of accounts for which collection was attempted but no payments were collected or resolved within the year.
The “total dollar amount of California debtor accounts purchased in the preceding year” and the “face value dollar amount of California debtor accounts in the licensee’s portfolio in the preceding year” were defined and must also be reported, excluding any added fees or charges. Additional information required includes the number of California debtor accounts and the number of California debtors in the licensee's portfolio as of the end of the year.
New York Attorney General issues judgment against crypto-asset firm
On June 14, the New York Attorney General, Letitia James, announced a stipulation and consent to judgment against a crypto-asset company for allegedly misleading investors on the risks of its program. Under the order, the defendants agreed to distribute all digital assets through its platform as restitution on an in-kind, “coin-for-coin” basis, with distributions to be made in the same amount and types of crypto-assets loaned by the investors. The stipulation followed a May 20 settlement with the company worth $2 billion.
The defendants were permanently restrained and enjoined from engaging in any conduct under the Martin Act and Executive Law § 63(12), as well as offering a cryptocurrency lending product in New York State. However, the order specified that if future state or federal legislation permitted crypto lending in the state, the defendant may seek permission from the New York AG to lift the ban. The defendants further agreed to fully cooperate with the New York AG as it continued to investigate the matter. The order also required the defendants to disclose to consumers within thirty days of its execution that the defendant is not registered with the SEC or the CFTC, along with detailing risk factors, among other disclosure requirements. The defendants neither admitted nor denied the allegations in the complaint, aside from admitting to personal and subject matter jurisdiction.
NYDFS issues guidance insurers regarding discrimination in affordable housing market
On June 24, Gov. Kathy Hochul announced guidance issued by NYDFS in Circular Letter No. 6 (2024) informing insurers and related parties that, under the new Insurance Law § 3462, making coverage decisions based on a property’s status as an affordable housing development or on the amount or source of a tenant’s income will be prohibited. According to the Circular Letter, the recently enacted law came in response to a “hardening” insurance market that has resulted in increased premiums and reduced coverage options for affordable housing developments. Under the law, insurers cannot base decisions such as issuing, renewing, or increasing premiums for policies on whether a property was an affordable housing development or if tenants received government assistance. The guidance noted that “excess line insurers, and the New York Property Insurance Underwriting Association (NYPIUA) must comply with Insurance Law § 3462 and can no longer request information about government-subsidized housing units or tenants paying rent with housing assistance or use this information for underwriting purposes,” and were required to update their insurance applications and underwriting guidelines accordingly. If insurance rates were previously based on these factors, insurers must revise their rates and submit them to NYDFS.
Rhode Island amends and adds provisions to financial institutions code
On June 25, the Governor of Rhode Island signed into law H 7282 (the “Act”) amending certain provisions of the state’s Title 19 on Financial Institutions and adding new consumer protections. Among other things, the amendments to the Act (i) updated the term “Federal Office of Thrift Supervision” to “Federal Reserve System,” (ii) clarified that the term “Tangible net worth” meant “the aggregate assets of a licensee excluding all intangible assets, less liabilities” in accordance with GAAP, and (iii) increased the minimum capital requirements for currency transmission licensees. The Act further restricted student loan servicers from withholding student transcripts from delinquent borrowers, removed a provision allowing deposit of securities in lieu of bonds, and added provisions on permissible investments for licensees, including cash, certificates of deposit, obligations of the United States, letters of credit with stipulations, or surety bonds.
Ohio allows dual capacity in real estate transactions
Recently, the Ohio Division of Financial Institutions released a letter to repeal prior guidance banning mortgage professionals from acting as both a mortgage professional and a real estate agent in the same transaction. This “dual capacity” was originally banned in the Divisions Mortgage Brokers & Lenders Letter 2006-1 to prevent conflicts of interest that might arise when a single person would both complete a sale and obtain financing for that sale. After the repeal, the Ohio Division of Financial Institutions required licensed mortgage loan originators to disclose when they or an associate will act as a realtor in connection with a property’s sale and to inform and obtain a signature from the buyer. Signatures can be obtained on the Dual Capacity Disclosure Form.
California enacts new consumer protections on disclosures and marketing
On June 14, the Governor of California approved SB 1096 (the “Act”) to amend the Consumers Legal Remedies Act and regulate mailed solicitations about consumer financial products. Subject to certain exceptions, the amendment will require covered persons to include a disclosure statement in enlarged, bold type on the front of any envelope containing a solicitation for a consumer financial product or service that would be sent by physical mail. The bolded disclosure must state clearly that the content would be an advertisement and that the recipient will “not [be] required to make any payment or take any other action in response to this offer.”
The Act also specified unfair or deceptive acts or practices, including, among other things, misrepresenting the terms of a transaction, inserting unconscionable provisions in contracts, and advertising prices for goods or services that do not include all mandatory fees or charges, subject to certain exceptions. It also will prohibit deceptive representations using geographic origin designations or making false claims about a product’s sponsorship or benefits. The legislation will extend to mortgage brokers and lenders and prohibit them from using a home improvement contractor to negotiate the terms of a loan secured by the home that would be used to finance a home improvement contract or any portion of such a contract. Additionally, the bill will address issues related to advertising and promoting events concerning veterans’ benefits. If it were to be the case, the Act will mandate that any such promotion disclose that the event was not sponsored by or affiliated with the VA, the California Department of Veterans Affairs, or any other congressionally-chartered or recognized organization for veterans, or any of their auxiliaries. The Act will go into effect on January 1, 2025.
Illinois enacts Interchange Fee Prohibition Act within state budget
Recently, the Governor of Illinois signed into law the state’s new budget (the “budget”) which will include a provision cited as the Interchange Fee Prohibition Act (the “Act”). The Act’s language was originally proposed as an amendment to a separate act, HB 4951, but the language was instead inserted in the state budget.
The Act will ban credit card issuers and any other entity that facilitates or processes electronic payments from charging an interchange fee on the tax or gratuity of a transaction. The Act defines an interchange fee as a fee “established, charged, or received” by a payment card network as compensation for its involvement in a transaction. The Act specified that it will be a merchant’s responsibility to bifurcate the tax/gratuity surcharges from the good’s subtotal. Alternatively, a merchant may submit tax information to the issuer’s bank no later than 180 days after the transaction for reimbursement. A credit card issuer cannot change the composition of its interchange fees to offset the amount that will be saved by merchants under this Act. A violation of the Act will result in a civil penalty of $1,000 per transaction, and the issuer must refund the merchant any interchange fees collected on taxes or gratuities.
Sen. Dick Durbin (D-IL) welcomed the Act’s passage claiming it would “bring down costs and eliminate fees” in electronic transactions. The Act will go into effect on July 1, 2025.
Connecticut amends its Money Transmission Act
On June 6, Connecticut enacted HB 5211 (the “Act”), amending laws regulating virtual currency and money transmission. The Act updated "permissible investment" to include additional forms of assets and clarified that “cash” will include demand deposits and cash equivalents, such as international wires in transit to the payee, transmission receivables funded by debit cards or credit cards, and AAA-rated mutual funds. The Act also stated that after October 1, 2024, the owning, operating, solicitation, marketing, advertising, or facilitation of virtual currency kiosks will be considered to “money transmission” business and thus will require persons to be state licensed as a money transmitter.
Additionally, the Act will require money transmission licensees to maintain a detailed accounting plan on winding down operations, as well as meet certain conditions to terminate a licensee’s businesses. Furthermore, the Act will require licensees to communicate third party disclosure information to consumers, as well as provide a physical receipt for transactions to senders. The Act also expanded the banking commissioner’s authority to adopt forms and orders governing digital assets to expressly include nonfungible tokens.
Connecticut amends its Money Transmission Act
On June 6, Connecticut enacted HB 5211 (the “Act”), amending laws regulating virtual currency and money transmission. The Act updated "permissible investment" to include additional forms of assets and clarified that “cash” will include demand deposits and cash equivalents, such as international wires in transit to the payee, transmission receivables funded by debit cards or credit cards, and AAA-rated mutual funds. The Act also stated that after October 1, the owning, operating, solicitation, marketing, advertising, or facilitation of virtual currency kiosks will be considered to “money transmission” business and thus will require persons to be state licensed as a money transmitter.
Additionally, the Act will require money transmission licensees to maintain a detailed accounting plan on winding down operations, as well as meet certain conditions to terminate a licensee’s businesses. Furthermore, the Act will require licensees to communicate third party disclosure information to consumers, as well as provide a physical receipt for transactions to senders. The Act also expanded the banking commissioner’s authority to adopt forms and orders governing digital assets to expressly include nonfungible tokens.