A California state court recently denied a preliminary injunction sought by the California Department of Financial Protection and Innovation (the DFPI) in its long-running litigation against Opportunity Financial (OppFi) contending that OppFi is the “true lender,” and therefore subject to usury limits, on loans originated by OppFi’s bank partner. The court found that on the factual record before it that the DFPI had not shown a reasonable probability of prevailing on the merits of its claim.
As discussed here, on June 29, Connecticut Governor Ned Lamont signed SB 1033, An Act Concerning Various Revisions to the Banking Statutes, into law. Among other things, the bill: (1) raised the small loan limit from $15,000 to $50,000; (2) expanded the Small Loan Act (SLA) licensure requirement to cover certain brokering and facilitating activities; (3) codified a predominant economic interest test for determining the “true lender” in the SLA; (4) broadened the definition of small loan to include income sharing agreements (ISAs), refund anticipation loans, and pension advances; (5) limited the Annual Percentage Rate (APR) on loans of $5,000 to $50,000 to 25%; (6) redefined APR as an all-in APR calculated similarly to the federal Military Lending Act (MLA); and (7) expanded the definition of finance charge to essentially capture all fees and charges, including optional fees. The revised SLA goes into effect on October 1, 2023.
When using artificial intelligence (AI) or complex credit models, can lenders rely on the checklist of reasons provided in Regulation B sample forms for adverse action notices? According to today’s guidance issued by the Consumer Financial Protection Bureau (CFPB or Bureau), the answer to that question is, in many circumstances, no.
On June 6, Nebraska Governor Jim Pillen signed into law Legislative Bill 92, which, among many other subjects, amends the Nebraska Installment Loan Act (the NILA). Previously, a license was required for a lender seeking to take advantage of the usury authority provided by the NILA and also for any person that holds or acquires any rights of ownership, servicing, or other forms of participation in a loan under the NILA. Legislative Bill 92 expands the scope of the licensing requirement to “any person that is not a financial institution who, at or after the time a [covered] loan is made by a financial institution, markets, owns in whole or in part, holds, acquires, services, or otherwise participates in such loan.” “Financial institution” is broadly defined to include all federally insured depository institutions. And the licensing requirement, by its terms, applies to entities providing limited services and/or purchasing limited interests (not just the predominant economic interest) in loans by financial institutions of $25,000 or less, with rates exceeding the Nebraska general usury limit.
On July 27, the Consumer Financial Protection Bureau (CFPB) released a new blog post, positing that cashflow data, broadly defined as the various inflows, outflows, and accumulated amounts in a consumer’s checking and savings accounts, may provide lenders with a better picture of a consumer’s ability to repay their loans than using a credit score.
On June 29, Connecticut Governor Ned Lamont signed SB 1033, An Act Concerning Various Revisions to the Banking Statutes, into law. As discussed here, with this bill, Connecticut joins several other states that have set strict rate caps on consumer loans, including Illinois, New Mexico, Colorado, and California, and those that expressly provide for a predominant economic interest test for true lender purposes. The law will take effect on October 1, 2023.
On June 26, Florida Governor Ron DeSantis signed the Florida Commercial Financing Disclosure Law (FCFDL). As discussed here, the FCFDL mandates that covered commercial financing companies provide consumer-like disclosures for certain commercial financing transactions. The law also defines and prohibits specific acts by brokers of those transactions, including the collection of advance fees.
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As discussed here, in April 2023, Colorado introduced HB 1229 that proposed to limit certain charges on consumer loans and simultaneously opt Colorado out of sections 521-523 of the Depository Institutions Deregulation and Monetary Control Act (DIDMCA). Sections 521-523 of DIDMCA empower state banks, insured state and federal savings associations and state credit unions to charge the interest allowed by the state where they are located, regardless of where the borrower is located and regardless of conflicting state law (i.e., “export” their home state’s interest-rate authority). However, section 525 of DIDMCA gives states the authority to opt out of sections 521-523. Indeed, Colorado initially opted out of DIDMCA when it was enacted, but later repealed its opt-out. This week HB 1229 was signed into law by Governor Jared Polis joining Colorado with Iowa and Puerto Rico as the only jurisdictions currently opting out.
On May 18, Minnesota Governor Tim Walz signed into law the Commerce Omnibus Bill, which, among other things, amends Minnesota Statute §§ 47.60 and 47.601 to cap the annual percentage rates (APR) on consumer small loans and consumer short-term loans at a 50% all-in APR, and expressly provides for predominant economic interest and totality
Please join Troutman Pepper Partner Chris Willis and his colleagues Alan Wingfield, James Kim, and Taylor Gess for the first installment of a special two-part series about the Consumer Financial Protection Bureau’s (CFPB) recent policy statement on abusiveness. In Part 1 the panel discusses the background of the policy statement, the definition of abusiveness, when it exists and when it doesn’t, and practical considerations for compliance.