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On September 29, the California governor signed AB 107, an Assembly Budget Committee bill, which changes the name of the Department of Business Oversight (DBO) to the Department of Financial Protection and Innovation (DFPI), effective immediately. As previously covered in depth by a Buckley Special Alert, the California legislature passed AB 1864, which was signed by the governor on September 25 and enacts the California Consumer Financial Protection Law (CCFPL) and establishes the DFPI name change.
The DFPI name change is now live on their website.
On September 11, the California Department of Business Oversight (CDBO) initiated the formal rulemaking process with the Office of Administrative Law (OAL) for the proposed regulations implementing the requirements of the commercial financing disclosures required by SB 1235 (Chapter 1011, Statutes of 2018). In September 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 (covered by InfoBytes here). In July 2019, California released the first draft of the proposed regulations (covered by InfoBytes here) to consider comments prior to initiating the formal rulemaking process with the OAL.
The new proposed regulations, which have been modified since the July 2019 draft, provide general format and content requirements for each disclosure, as well as specific requirements for each type of covered transaction. Additionally, the proposed regulations provide information on calculating the annual percentage rate (APR), including additional details for calculating the APR for factoring transactions, as well as calculating the estimated APR for sales-based financing transactions, among other things. Additional details about the proposed regulations can be found in the CDBO’s initial statement of reasons. Comments on the proposed regulations will be accepted through October 28.
California DBO reports installment consumer lending by California nonbanks increased 68 percent in 2019
On September 9, the California Department of Business Oversight (CDBO) released its annual report covering the 2019 operations of finance lenders, brokers, and Property Assessed Clean Energy program administrators licensed under the California Financing Law. Key findings of the report include (i) “installment consumer lending by nonbanks in California increased more than 68 percent” from $34 billion to $57 billion, largely due to real estate-secured loans, which more than doubled to $47.3 billion; (ii) consumer loans under $2,500 accounted for 40.2 percent of the total number of consumer loans made in 2019, with unsecured loans making up 98.7 percent of these loans; and (iii) online consumer loans increased by 69.1 percent with the total principal amount of these loans increasing by 134 percent. CDBO also noted in its release that 58 percent of loans ranging from $2,500 to $4,999—the largest number of consumer loans—carried annual percent rates of 100 percent or higher. “This report reflects the final year in which there are no state caps on interest rates for loans above $2,500,” CDBO Commissioner Manual P. Alvarez stated. He further noted that “[b]eginning this year, the law now limits permissible interest rates on loans of up to $10,000. Next year’s report will reflect the [CDBO’s] efforts to oversee licensees under the new interest caps.”
On September 3, the California Department of Business Oversight (CDBO) announced a formal investigation into a California auto title lender to determine whether the lender is evading state interest rate caps through a recent partnership with a Utah-based bank. The California Fair Access to Credit Act—enacted in 2019—caps annual simple interest rates on loans between $2,500 and $10,000 made by state-licensed lenders at around 36 percent (covered by InfoBytes here). The CDBO asserts that prior to the new interest rate caps taking effect, the auto title lender frequently made loans carrying interest rates in excess of 100 percent. Rather than reducing its interest rates to comply with the new law, the lender “stopped making state-licensed auto title loans in California,” and instead used “its existing lending operations and personnel” to market and service auto title loans purportedly made by the Utah-based bank. These loans, the CDBO claims, still carry interest rates greater than 90 percent, but because the Utah-based bank is not regulated or supervised by the CDBO it is not subject to the interest rate caps when lending in California. According to the CDBO, its investigation is intended to find out whether the auto title lender’s “role in the arrangement is so extensive as to require compliance with California’s lending laws” and if the arrangement is a “direct effort to evade the Fair Access to Credit Act,” which CDBO contends would be illegal.
Special Alert: California’s new consumer financial protection law expands UDAAP and enforcement authority
On Monday, August 31, the California Legislature passed Assembly Bill 1864, which enacts the California Consumer Financial Protection Law (CCFPL) and changes the name of the Department of Business Oversight (DBO) to the Department of Financial Protection and Innovation (DFPI).
- Establishes UDAAP authority for the new DFPI, adding “abusive” to “unfair or deceptive” acts or practices prohibited by California law, and authorizing remedies similar to those provided in the Dodd-Frank Act. The DFPI also has authority to define UDAAPs in connection with the offering or provision of commercial financing (e.g., merchant cash advance, lease financing, factoring) and other financial products or services to small business recipients, nonprofits, and family farms.
Last month the California Department of Business Oversight (CDBO) released two new opinion letters covering aspects of the California Money Transmission Act (MTA) related to the sale of foreign currency and the agent of the payee exemption.
- Sale of Foreign Currency. The redacted opinion letter concludes that the company’s banknote replenishment service does not trigger the licensing requirements of the MTA because the company does not engage in “selling or receiving payment instruments, selling or receiving stored value, or receiving money for transmission.” Moreover, the CDBO determined that the company “does not issue anything to the business except for the foreign currency that was ordered, and does not receive money from the business for purpose of transmission.”
- Agent of Payee Exemption - Payment Processing Service. The redacted opinion letter concludes that neither the company’s pay-in services nor pay-out services are exempt from the MTA. According to the letter, the company provides payment processing services to online gaming operators (merchants), which allow the merchants’ customers to submit payments to engage in online gaming, such as sports betting and daily fantasy sports betting. The CDBO determined that the pay-in and pay-out services provided by the company “constitute ‘receiving money for transmission,’” as required for the MTA to apply, because the company “receives money from the [c]ustomers for transfer to the [m]erchants” for the pay-in service and “receives money from the [m]erchants for transfer to the [c]ustomers” for the pay-out service. However, the agent of the payee exemption does not apply to the pay-in services, despite an agreement that establishes the company as the merchant’s agent, because the funds received by the company are not owed to the merchant when they are received by the company. Instead, such funds are retained in an account for the benefit of the merchant until a gambling debt is owed to the merchant. For the pay-out services, the exemption does not apply because the merchant’s customer does not provide any goods or services to the merchant for which the merchant’s payment to the customer is owed. The CDBO also advised that some of the proposed payments described in the company’s request may involve sports betting, which is an illegal activity in the state, and cautioned that the opinion “applies only to activities that are currently legal in California and does not relieve [the company] from its obligation to comply with other applicable state and federal laws.” Furthermore, the CDBO stated that MTA licenses cannot be issued to companies engaged in the transmission of money to facilitate unlawful activities.
The California Department of Business Oversight (CDBO) released several opinion letters issued throughout the summer covering virtual currency and agent of payee rules under the California Money Transmission Act (MTA). Highlights from the redacted letters include:
- Cryptocurrency - Escrow Accounts and Exchanges. The redacted opinion letter states that the CDBO has not yet determined whether cryptocurrencies are a form of money that triggers the application of the MTA and therefore, a business model that operates brokerage accounts using cryptocurrency exchanges would not need to be licensed and supervised under the MTA. As for a business model that the letter describes as a third-party repurchase transaction related to borrowing and lending cryptocurrency, the CDBO reminds the company that the activity may still be subject to California Escrow Law.
- Agent of Payee Exemption - Payment Processing Service. The redacted opinion letter concludes that the company’s payment processing services—which use mobile applications or card readers to capture customer information through merchants, and the payment funds flow first from the customer to the company, and then from the company to the merchant—“fall within the definition of ‘money transmission’ but are exempt from the MTA to the extent [the company], acting as the [m]erchant’s agent, receives money from [c]ustomers, via the relevant card company, as payment for goods or services.”
- Online Foreign Currency Exchange Service. The redacted opinion letter concludes the company’s online foreign currency exchange service is not subject to licensure under the MTA, because the service does not “involve ‘payment instruments’ or ‘stored value’” and there is no indication that the company would “receive money for transmission,” as customers would use the service to purchase foreign currency “like other online retail purchases.”
- Exemption for Operator of Payment System. The redacted opinion letter notes that California governmental entities are exempt from the MTA, and a company that provides payment processing services to facilitate the transfer from a California Department of Correction detainee’s cash at a detention facility to that detention facility’s bank account, is exempt from the MTA because it is processing payments between or among persons exempt from the MTA.
- MTA - Agent of Payee. The redacted opinion letter states that the company’s transactions by an agent of a merchant to collect funds from the merchant’s customer for payment of goods and services are exempt from the requirements of the MTA. The company is acting as an agent of the payee when a company is receiving money as an agent of a merchant pursuant to a preexisting written contract, and delivery of the money to the company satisfies the customer’s obligation to the merchant for a good or service provided by the merchant.
- Sending Instructions Not Money Transmission. The redacted opinion letter states that the company’s actions do not constitute money transmission under the MTA because “[the company] never ‘receives money for transmission.’” The company only “receives instructions from consumers and merchants to transmit money to each other and forwards these instructions for processing by their respective banks on the ACH network.” Because the banks are “solely responsible for payment and settlement in accordance with these instructions” the company’s payment system does not require an MTA license.
On June 29, California Governor, Gavin Newsom, signed SB 74, Budget Act of 2020 (and accompanying budget summary), which allocates $10.2 million in 2020-21 growing to $19.3 million in 2022-23 to the Department of Business Oversight, contingent on the enactment of the California Consumer Financial Protection Law (Law). As previously covered by a Buckley Special Alert (which details an earlier version of the proposal), the Law was originally proposed as a trailer bill to the state’s budget, but was not finalized by lawmakers prior to the June 15th budget deadline. In this version, the proposed budget and Law would: (i) revamp and rename the state’s Department of Business Oversight (DBO) to the Department of Financial Protection and Innovation (DFPI); (ii) establish an Office of Financial Technology Innovation to study emerging technologies in the financial industry; (iii) expand the DFPI’s authority to protect consumers from predatory practices by, among other things, prohibiting unlawful, unfair, deceptive, or abusive acts (consistent with Section 17200); and (iv) foster the responsible development of new financial products. California lawmakers now have until August 31 (end of session) to finalize “the statutory framework needed to implement the [Law].”
Notably, on August 6, the Assembly is holding a hearing to discuss the proposal and is seeking public feedback. Written comments should be submitted to BudgetSub6@asm.ca.gov prior to the hearing date.
On July 29, the California Department of Business Oversight (DBO) announced a large uptick in consumer complaints and inquiries received since the beginning of the Covid-19 pandemic. From March through the end of June, the DBO states that consumer complaints increased more than 37 percent, email inquiries increased 86 percent, and consumer calls increased 22 percent. These sharp increases, DBO notes, are primarily due to Covid-19-related concerns about “mortgages, student loans, personal loans, questionable investments, and apparent fraudulent schemes.”
California Department of Business Oversight will monitor licensees’ compliance with face covering guidance
The California Department of Business Oversight announced that it will monitor licensees’ compliance with face covering guidance issued by the California governor and the California Department of Public Health. All customers must be required to wear appropriate face coverings under circumstances outlined in the guidance, and those who refuse to comply and do not meet the outlined exemptions should be refused entry to banks, credit unions, and other places of business.
- Jonice Gray Tucker to join CFPB panel at CBA’s Washington Forum
- 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
- Jonice Gray Tucker to discuss “The future of fair lending” at the Mortgage Bankers Association Legal Issues and Regulatory Compliance Conference