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On February 3, the California Department of Financial Protection and Innovation (DFPI) announced the first-ever enforcement action under its new structure against a student loan debt-relief company and an investigation into others. According to the order, DFPI alleges, among other things, that an Irvine-based debt-relief company violated the Telemarketing Sales Rule (TSR) and the California Consumer Financial Protection Law (CCFPL) by charging consumers fees ranging from $2,100 to $26,510 to “‘wipe away’ their student loans by getting them ‘dismissed’ or ‘discharged,’” which the company could not achieve. Moreover, consumers often financed the payment of the company’s fees, resulting in more debt and the company refused to issue refunds when requested by some consumers. DFPI alleges the company’s actions constitute unlawful and deceptive practices under the CCFPL and violated the TSR’s prohibition of charging fees before performing services. Lastly, DFPI alleges the company was required to obtain a license under the state’s Student Loan Servicing Act (SLSA) because its actions constitute “servicing” student loans under the statute. The order requires the company to refund the fees collected from 18 consumers by March 15 and to pay a civil penalty of $45,000.
DFPI also announced it issued subpoenas to four other student loan debt-relief companies to determine whether the companies engage in or have engaged in any unlawful, unfair, deceptive, or abusive acts or practices and whether their activities require a license. Responses to the subpoenas are due in March.
On January 27, California’s Department of Financial Protection and Innovation (DFPI) announced that it entered into memorandums of understanding (MOUs) with five earned wage access (EWA) companies. According to DFPI, the MOUs represent the first agreements of their kind between fintechs and a state regulator, and are intended to “pave a path so [EWA] companies can continue operating in California, in advance of possible registration under the California Consumer Financial Protection Law [CCFPL], which took effect this year and defines the companies as newly covered financial services.” (Buckley Special Alert coverage on the CCFPL available here.) The five EWA companies represent two advance pay models: “an employer-based model which offers early access to wages in partnership with an employer as a benefit and a direct-to-consumer model which does not require employer participation.”
Under the terms of the MOUs, the companies have agreed to deliver quarterly reports providing DFPI with a better understanding of their products and services, as well as the risks and benefits to consumers in the state. Reports will include information concerning “changes to consumer contracts, fees to consumers, consumer complaints, the average number of advances per month, duration before consumer payback, and the number of consumers making no repayment, partial repayments, or requesting cancellations or deferrals, among other stipulations.” The companies have also agreed to regular periodic DFPI examinations and are required to follow industry best practices, including by, among other things, (i) not offering any financial products that are “contingent on any tips the consumer chooses to make or does not make”; (ii) complying with TILA by limiting annual percentage rates on advanced funds to 36 percent; (iii) disclosing to consumers any potential fees that may be assessed prior to advancing the funds; (iv) limiting the amount of funds advanced to a consumer to no more than 50 percent of the consumer’s next paycheck; and (v) allowing consumers to revoke EFT authorization up to three days before a scheduled repayment date.
As previously covered by InfoBytes, last November the CFPB issued an advisory opinion on EWA products, which clarified that “a Covered EWA Program does not involve the offering or extension of ‘credit’” under Regulation Z, which implements TILA. The Bureau noted that the “totality of circumstances of a Covered EWA Program supports that these programs differ in kind from products the Bureau would generally consider to be credit.”
Recently, California’s Department of Financial Protection and Innovation (DFPI) released a new opinion letter covering aspects of the Money Transmission Act (MTA) related to bitcoin automated teller machines (ATMs) and kiosks. The letter explains that the sale and purchase of bitcoin through ATMs/kiosks in third-party retail locations described by the applicant company are not subject to licensure under the MTA because the sale and purchase of bitcoin from the company’s own inventory through a kiosk does not meet California’s definition of “money transmission.” In each instance, the transaction would only be between the consumer using the ATM/kiosk and the company, the bitcoin would be sent directly to the customer’s virtual currency wallet, and any bitcoin sold would be provided exclusively from the company’s own inventory. DFPI reminded the company that its determination is limited to the activities specified in the letter and does not extend to any other activities that the company may engage in. Moreover, the letter does not relieve the company from any FinCEN, federal, or state regulatory obligations.
On January 19, California’s Department of Financial Protection and Innovation (DFPI) announced the issuance of subpoenas to a dozen debt collection companies as part of its investigation into consumer complaints about alleged unlawful, unfair, deceptive, or abusive debt collection practices. This is DFPI’s first significant action since the California Consumer Financial Protection Law—which, among other things, expanded DFPI’s UDAAP authority by adding a prohibition on “abusive” acts or practices to California law—went into effect January 1 (covered by a Buckley Special Alert). According to DFPI, consumers across the country have filed complaints against the companies, alleging the debt collectors make repeated phone calls, fail to validate debts, and threaten to sue consumers for debts they do not owe. DFPI notes that the state’s new Debt Collection Licensing Act (enacted last September and covered by InfoBytes here) requires a person engaging in the business of debt collecting in the state of California to be licensed and provides for the regulation and oversight of debt collectors by the agency.
Recently, the California Department of Financial Protection and Innovation (DFPI) issued a notice of proposed regulations (and accompanying statement of reasons) seeking to amend the state’s Escrow Law to clarify (i) the meanings of personal property and prohibited compensation; (ii) maintenance of books and preservation of records; and (iii) the annual report requirements. Among other things, the proposal adds “gametic material” to the definition of personal property to clarify that escrow agents may conduct transactions that hold and disburse funds under assisted reproduction agreements. Additionally, the update to the escrow books and records provisions are to “ensure that CPAs may participate in engagements to meet the annual audit report requirement for Escrow Law licensees without violating any rule of professional conduct.” Comments on the proposed regulatory amendments are due by February 15.
Recently, California’s Department of Financial Protection and Innovation (DFPI) released new opinion letters covering aspects of the Money Transmission Act (MTA) related to Bitcoin automated teller machines (ATMs). Each of the three letters (available here, here, and here), which contain slightly different fact patterns, explain that the Bitcoin ATMs described by the applicant companies are not subject to licensure under the MTA because they are not considered to be engaging in the business of money transmission. In each instance, the transaction would only be between the consumer using the kiosk and the company, the transaction would be completed instantly, and no third parties would be involved in the transmission of the Bitcoin to the customer’s virtual wallets. DFPI reminded each company that while it was not a subject of their inquiry, if they choose to offer virtual currency other than Bitcoin, they may have obligations under California’s broker-dealer laws to the extent that any of those virtual currencies are securities.
On November 12, the California Department of Financial Protection and Innovation (DFPI) issued a consent order with a commercial financing company, resolving allegations that the company’s merchant cash advance (MCA) product was structured as a lending transaction and offered to California merchants without first obtaining a license as required by the California Financing Law (CFL). According to the DFPI, the MCA agreements in question provide the company with “broad authority to declare ‘default’ on its merchants and when doing so may use extensive recourse allowed under its [a]greement,” including in the event of insufficient funds requiring the full funding amount to be repaid, which DFPI argues, “does not put the risk of the ‘purchase’ of receivables on [the financing company]’s shoulders, but rather the risk of repayment on the merchant’s shoulders, just like a loan.” Moreover, the agreements provide for an indefinite repayment period, placing the “risk of repayment on the merchant by leaving the repayment period open until fully repaid (with fees and interest).” The consent order distinguishes between outstanding and future receivables, noting that under California law, commercial financiers purchasing a share of a merchant’s outstanding receivables without recourse (e.g., factoring), is generally not considered lending, but there is no similar recognition by the legislature or courts with respect to future receivables.
The consent order requires the company to (i) desist from lending in California unless and until licensed under the CFL; (ii) refund fees or payments collected from California merchants in excess of the 10 percent state interest rate cap for non-CFL licensees; and (iii) pay $20,000 to the DFPI to cover the cost of the investigation.
Recently, California’s Department of Financial Protection and Innovation (DFPI) released a new opinion letter covering aspects of the Money Transmission Act (MTA) related to the registered clearing house and payment processing service exemptions.
The redacted opinion letter concluded that the company, a Delaware Corporation, is required to apply for and receive an MTA license to engage in the proposed activities in California, absent receiving an exemption. According to the letter, the company proposes to offer automated clearing house (ACH) services to merchants through an “integrated payment gateway” in order to “aid merchants with online and offline stores in collecting cross-border payments.” The ACH services would be a five-step process in which (i) a foreign customer purchases goods or services from a U.S.-based merchant; (ii) the merchant scans a quick response code using the company’s payment software; (iii) the company “withdraws a USD equivalent amount of payment in Chinese Renminbi (RMB) from the foreign customer’s” digital wallet; (iv) the company uses foreign exchange services “to convert the RMB amount into the correct corresponding USD amount” and remits the amount into the company’s U.S. bank account; and lastly (v) the company distributes the payment from its account to the merchant’s account. The company sought a clearing agency exemption and/or an excluded persons processing exemption, however, the DFPI concluded that the company did not supply evidence to show it qualified for either exemption. Thus, the company would need an MTA license to engage in the stated processing activity in California.
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.
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.