Small Dollar Lending

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On December 12, Wisconsin legislators introduced Senate Bill 759 (SB 759), which would substantially shift Wisconsin’s approach to consumer lending. The bill would:

  • Impose a 36% annual percentage rate (APR) cap on consumer loans made by licensed lenders;
  • Adopt predominant economic interest and totality of the circumstances tests that expand which entities “make” loans under the law and are subject to licensing;
  • Add broad anti‑evasion language; and
  • Require new, detailed reporting from licensed lenders to the Division of Banking within the Department of Financial Institutions (DFI).

The Consumer Financial Protection Bureau (CFPB or Bureau) released a new market “data spotlight” on Buy Now, Pay Later (BNPL) that uses actual transaction data from six large providers of “pay-in-four” BNPL loans. The report paints a picture of growing adoption paired with improving credit performance: late fees fell and charge-off rates declined in 2023, even as the number of loans and users rose.

Last week, the U.S. District Court for the Northern District of California denied Empower Finance’s motion to compel arbitration in a class action lawsuit concerning its earned wage access (EWA) product, Cash Advance. In Vickery v. Empower Finance, Inc., the court found that Empower’s Cash Advance product was “credit” under the Military Lending Act (MLA) making Empower’s arbitration agreement unenforceable under the MLA, which prohibits arbitration agreements for consumer credit extended to active-duty service members and their dependents.

New York has included a “Buy-Now-Pay-Later Act” as part of its broader budget legislation for the 2025-2026 fiscal year. Encapsulated in Article 14-B, the Act aims to regulate the burgeoning market of buy-now-pay-later (BNPL) lenders but has raised concerns by its overreach and seemingly unequal treatment of national and state banks.

On March 20, the Arkansas governor signed into law Arkansas Act 347, known as the Earned Wage Access Services Act. Sponsored by Representative David Ray (R) and Senator Ben Gilmore (R), this legislation aims to regulate earned wage access (EWA) providers. Notably, “providers” is defined to include a person engaged in the business of offering earned wage access, but not an employer that advances a portion of earned wages directly to employees or independent contractors.

The Utah Legislature has passed H.B. 279, known as the Earned Wage Access Services Act. Sponsored by Representative A. Cory Maloy (R) and Senator Chris H. Wilson (R), this legislation aims to regulate earned wage access (EWA) providers. Notably, “providers” is defined to include a person engaged in the business of offering earned wage access, but not an employer that advances a portion of earned wages directly to employees or independent contractors. If signed by the Governor, the Act will take effect on May 7, 2025.

On March 7, the Community Financial Services Association of America (CFSA) and the Consumer Service Alliance of Texas filed a petition for a writ of certiorari with the U.S. Supreme Court seeking to overturn a decision by the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit held that in order to obtain judicial relief, a party challenging governmental action taken by an individual who remained in office against the President’s wishes due to an unconstitutional removal restriction must show that a hypothetical replacement officer would have taken a different action. The petitioners argue that this standard is unreasonably burdensome and inconsistent with the Supreme Court’s decision in Collins v. Yellen.

On January 8, Senate Bill No. 1252 (SB 1252) was introduced to the Virginia General Assembly, aiming to amend and reenact sections of the Code of Virginia related to the application of usury rates. Just two weeks ago, the bill was passed by both the House and Senate. Opponents of the bill contend that the language and effect is very unclear, but that broad language and stringent provisions could stifle innovation and ultimately harm consumers by limiting their access to credit.

As part of a flurry of last minute regulatory activity by the Biden administration’s Consumer Financial Protection Bureau (CFPB or Bureau), on January 15, the CFPB published an advisory opinion in the Federal Register rescinding a previous advisory opinion which the Bureau issued during the first Trump administration in November 2020. The 2020 advisory opinion had described how a specific type of “earned wage” product did not constitute the offering or extension of “credit” under the Truth in Lending Act (TILA) and Regulation Z. The new advisory opinion is effective immediately.