Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
On March 17, the Mississippi governor signed HB 1075, which will, among other things, reenact licensing provisions for lenders who provide “credit availability transactions” to customers through fully amortized loans paid over a term of four to 12 months. Under the act, transactions made by unlicensed lenders will be null and void. The act outlines licensing requirements, including those related to annual renewal fees, bond deposits, and expedited licensing requests. The provisions also allow the commissioner to “issue a temporary license authorizing the operation of a credit availability business on the receipt of an application for a license involving principals and owners that are substantially identical to those of an existing licensed credit availability licensee.” Temporary licenses will remain effective until a determination is made on the status of a permanent license. The act also outlines provisions for check cashing business, including licensing requirements and limits on other activities. The act takes effect July 1.
Louisiana Office of Financial Institutions extends emergency declarations to non-depository entities
On July 24, the Louisiana Office of Financial Institutions extended emergency declarations for residential mortgage lenders, check cashers, bond for deed escrow agents and repossession agents, brokers and lenders licensed under the Louisiana Consumer Credit Law and Deferred Presentment and Small Loan Act, and pawnbrokers. The orders were previously covered here. Such entities are granted the authority to temporarily close licensed locations within Louisiana or to temporarily close and/or relocate to another location within the state. Mortgage loan originators are permitted to work from home, whether located in Louisiana or another state, even if the home is not registered with the LOFI. The declarations also provide instructions for notifying the LOFI of a temporary location change. The declarations will remain in effect as long as there is a public health emergency relating to Covid-19, or until rescinded or replaced.
On June 5, the Louisiana Office of Financial Institutions updated its non-depository 2020 Covid-19 emergency declarations to extend earlier guidance regarding closure of licensed locations and temporary location changes for residential mortgage lenders, brokers and originators, check cashers, lenders or brokers licensed pursuant to the Louisiana Consumer Credit Law and the Louisiana Deferred Presentment and Small Loan Act, pawnbrokers, and repossession agents and bond for deed escrow agents. The original emergency declarations were previously covered here, here, here, here, here, here, and here. The declarations extend the guidance until June 26, 2020, unless terminated sooner.
On April 9, Louisiana Office of Financial Institutions Commissioner John Ducrest declared a state of emergency and issued guidance for Louisiana-based check-cashing entities in response to the Covid-19 crisis. The order: (i) granted check cashers the authority to temporarily relocate and close operations, services, or products; (ii) waived the 30-day notification requirement pertaining to closures or relocations of services, operations, and products; and (iii) provided guidance for reporting operational changes and temporary relocations. The declaration expires April 30, unless otherwise extended or renewed.
Louisiana Commissioner of Financial Institutions advises non-depository institutions on temporary closures
On March 18, Louisiana’s Commissioner of Financial Institutions released emergency advisories for non-depository institutions, specifically repossession agents and bond for deed escrow agents, check cashers, pawnbrokers, licensed consumer lenders/brokers, and residential mortgage lenders. The advisories authorized the temporary closure or relocations of licensed locations and waived the standard 30-day notice requirement for such closures. Licensees should notify the Office of Financial Institutions as soon as possible regarding any temporary closures or relocations and may submit requests for waiver of the standard change of location fee by email. Unless otherwise instructed, temporary location changes should not be submitted through NMLS. In addition, the advisory for residential mortgage lenders confirms that licensed MLOs may work from their homes.
On March 19, the Kentucky governor signed S.B. 145, which establishes separate licenses for check cashing and deferred deposit service businesses. In addition, S.B. 145 creates a new section that allows the Department of Financial Institutions commissioner to (i) require license applications and certain other regulatory filings to also be filed with the State Regulatory Registry (Registry); (ii) report violations, enforcement actions, and other relevant information to the Registry; and (iii) access the Registry as “an agent for requesting information from and distributing information to the [DOJ] or other governmental agencies.” The act takes effect 90 days after adjournment of the legislature.
On October 24, the Pennsylvania governor signed HB 2453, which amends the state’s Check Casher Licensing Act to make several changes in the licensing process for check-cashing entities. Specifically, the amendments (i) allow for check-cashing licenses to be issued for up to 14 months; (ii) require a licensee to demonstrate that it is conducting business in accordance with the law for annual renewal; and (iii) allow for the suspension or revocation of licenses for certain activities, including material misstatements in the application and engaging in dishonest, fraudulent, or illegal practices or conduct in connection with the check casher business. The amendments also, among other things, clarify that a licensee may not cash or advance any money on post-dated personal checks, but allow for the cashing of post-dated government checks if the check is dated no more than five days after it is presented to the licensee and the fee does not exceed the maximum permitted under the Act. Additionally, the amendments authorize fines of up to $10,000 for violations of the act. The amendments are effective on December 23, 2018.
On October 24, the CFPB announced a settlement with a Tennessee-based small dollar lender, resolving allegations that the lender violated the Consumer Financial Protection Act (CFPA). Specifically, as stated in the consent order, the CFPB alleges that the lender (i) deceptively threatened to sue consumers on time-barred debts; (ii) misled consumers that the lender would report late payments to credit reporting agencies when the lender did not; and (iii) abusively set-off previous loans by telling its employees not to tell check-cashing consumers that it would deduct previous amounts owed from the check proceeds. Consequently, the Bureau alleged that the lender took “unreasonable advantage of the consumers’ lack of understanding” that the lender would take a portion of the check they intended to cash and physically kept the check away from consumers until the transaction was complete, which “nullified” any written set-off disclosures when the consumer signed his or her agreement. In addition to the $200,000 civil money penalty, the consent order requires the lender to (i) pay approximately $32,000 in restitution to consumers, and (ii) establish a compliance plan with detailed steps and timelines for complying with applicable laws.
Supreme Court of Appeals for West Virginia upholds summary judgment for consumer against check cashing company
On May 11, the Supreme Court of Appeals of West Virginia affirmed summary judgment for a consumer who alleged a check cashing company and its debt collector violated the West Virginia Consumer Credit and Protection Act (WVCCPA) by contacting her multiple times after being notified of her Chapter 7 bankruptcy filing. According to the opinion, the consumer filed a Chapter 7 petition for bankruptcy in February 2012 and the cash checking company was notified on or about March 6, 2012 of the filing. On March 9, the company, in response to the bankruptcy notice, sent a letter to the consumer notifying her collection efforts would be stayed but the company would be pursuing a criminal complaint against her. Additionally, a debt collection agency under contract with the company contacted the consumer five additional times in attempt to collect the debt. The trial court first granted the consumer’s motion for summary judgment in part, finding that the company violated the WVCCPA by not contacting the consumer’s attorney and by threatening criminal prosecution even though the company was aware of the bankruptcy filing. The court awarded the consumer over $19,000 in statutory damages. Subsequently, the trial court granted the consumer’s second motion for summary judgment, holding, among other things, that the company instructed the debt collector to contact the consumer despite having “actual knowledge” that an attorney represented the consumer. The court granted additional statutory damages in the amount of $18,000 and awarded attorney’s fees and costs.
Upon appeal, the Supreme Court of Appeals concluded that the check cashing company’s violations of the WVCCPA were deliberate and intentional, and therefore, the trial court did not abuse its discretion by awarding the consumer over $37,000 in damages and attorney’s fees.
New Mexico Enacts New Laws Affecting Payday Lenders, Check Cashing Service Providers, and the Enforcement of Service Contracts / Warranties
On April 6, New Mexico enacted H.B. 347, a bill amending the New Mexico Small Loan Act of 1955 (NMSLA) and Bank Installment Loan Act of 1959 (NMILA) to effectively eliminate “payday loans” in the state by requiring that loans of $5,000 or less be made pursuant to the NMSLA or NMILA. Specifically, the new law caps the annual percentage rate of such loans at 175% and requires lenders operating in New Mexico to provide loan terms of at least 120 days, and a minimum repayment schedule of four installments of substantially equal amounts. The new law also limits the fees and charges a lender may assess in connection with loans made under the NMSLA or NMILA as well as the number of times a lender may present a check or other debit for payment. Furthermore, lenders are prohibited from extending loans under the NMSLA or NMILA if the consumer has not repaid any loans previously obtained under these acts, and all lenders must report the terms of these loans to consumer reporting agencies. Notably, these new requirements do not apply to federally insured depository institutions. Moreover, H.B. 347—which takes effect on January 1, 2018—will be enforced exclusively by the state. Counties, municipalities, and other political subdivisions of the state are preempted from any regulation of terms and conditions regarding these loans whether by ordinance, resolution, or otherwise. A violation of either the NMSLA or the NMILA will constitute an unfair or deceptive trade practice under New Mexico’s Unfair Practices Act.
Also on April 6, Governor Susana Martinez signed into law S.B. 220, a bill that amends the Service Contract Regulation Act by adding and amending definitions; providing for surety through insurance policies; and providing specific information to be included into contracts and warranties. Specifically, the amendments—which are scheduled to take effect on June 16—allow providers to obtain a reimbursement insurance policy in lieu of maintaining a deposit with the Superintendent of Insurance.
That same day, Governor Martinez also enacted H.B. 276, a bill that increased from $500 to $2,500 the revenue threshold within a 30-day period that triggers New Mexico’s Uniform Money Services Act licensing requirement for check cashing businesses. H.B. 276 is scheduled to take effect July 1.
- Jonice Gray Tucker to moderate “Pandemic relief response and lasting impacts on access, credit, banking, and equality” at the American Bar Association Business Law Section Spring Meeting
- Jeffrey P. Naimon to discuss "Post-pandemic CFPB exam preparation" at the Mortgage Bankers Association Spring Conference & Expo
- Jonice Gray Tucker to discuss "Making fair lending work for you" at the Mortgage Bankers Association Spring Conference & Expo
- Jonice Gray Tucker to discuss "Reading the tea leaves of President Biden’s initial financial appointees" at LendIt Fintech
- Moorari K. Shah to discuss “CA, NY, federal licensing and disclosure” at the Equipment Leasing & Finance Association Legal Forum
- Jonice Gray Tucker to discuss "Compliance under Biden" at the WSJ Risk & Compliance Forum
- Sherry-Maria Safchuk to discuss UDAAP at an American Bar Association webinar
- Jonice Gray Tucker to discuss “The future of fair lending” at the Mortgage Bankers Association Legal Issues and Regulatory Compliance Conference