On October 25, 2018, the Conference of State Bank Supervisors (CSBS) renewed its lawsuit against the Office of the Comptroller of the Currency (OCC) seeking to prevent the OCC from issuing its long awaited special-purpose bank charters to fintech companies. The OCC recently announced that it would begin accepting applications for the special-purpose charter, a move that would allow the OCC to regulate fintech companies similar to their supervision of national banks.

The lawsuit, filed in the U.S. District Court for the District of Columbia, comes on the heels of a similar suit brought against the OCC in the Southern District of New York by the New York State Department of Financial Services (DFS) Superintendent Maria T. Vullo. Both complaints challenge the OCC’s authority in providing the special-purpose charter under the National Bank Act (NBA) arguing that fintech “nonbanks” do not fall within the “business of banking” or any other authorized special-purpose provision. The lawsuits place a significant emphasis on the role of the state regulator in the U.S. dual-banking system, arguing that states are uniquely qualified to regulate banking practices and enable financial innovation. In addition to lacking statutory authority, the lawsuits argue that the OCC’s actions were arbitrary, unconstitutional, and procedurally defective, as the OCC failed to adhere to notice provisions under the NBA.

Since the OCC’s first public announcement of the charter in 2016, the special-purpose charter has faced criticism from state regulators. Both the CSBS and DFS previously filed complaints questioning the OCC’s statutory authority, but the complaints were dismissed as speculative and unripe for judicial review.

On September 30, 2018, California enacted the nation’s first small business truth-in-lending law when Governor Jerry Brown signed into law SB 1235. The law aims to protect small businesses from predatory lending practices by requiring increased transparency of certain business-purpose loans marketed to small businesses.

SB 1235 draws comparisons to the federal Truth in Lending Act, which imposes disclosure requirements for consumer-purpose, but not business-purpose loans.  SB 1235 covers “commercial financing,” defined to include commercial loans, commercial open-end credit plans, factoring, and merchant cash advances, for transactions less than $500,000.  Of note, SB 1235 applies to nondepository institutions, such as an “online lending platform,” and exempts traditional depository institutions.

Disclosures required by the law include: (i) the total amount of funds provided, (ii) the total dollar cost of the financing, (iii) the term or estimated term, (iv) the method, frequency, and amount of payments, (v) the description of prepayment policies, and (vi) the annualized rate of the total cost of financing. The California Department of Business Oversight (DBO) is tasked with developing regulations to clarify the ambiguous scope of SB 1235.

The law has garnered broad industry support from signatories to the Small Business Borrowers’ Bill of Rights, which encompasses small business lenders, fintech companies, advocacy groups, and community organizations. Some business groups, including the Commercial Finance Association and Electronic Transactions Association, have chosen not to support the bill.



In the latest sign of regulatory scrutiny of asset-advance companies offering consumers what regulators believe are in fact regulated “credit” under federal law and “loans” under state law, the Bureau of Consumer Financial Protection (BCFP) filed its first new lawsuit under Acting Director Mulvaney last Thursday. The complaint, filed in the Central District of California, alleges that a so-called pension-advance company, Future Income Payments, LLC, its President and affiliates falsely marketed high-interest loans as mere purchases of consumers’ rights to future cash income streams on pensions and other assets.

This action continues the Bureau’s and state regulators’ focus on such asset-advance enterprises: see action against Pension Funding, LLC and others here; action against RD Legal Funding, a litigation settlement advance company, here; and the Bureau’s 2015 “Consumer advisory: 3 pension advance traps to avoid.” In its new complaint, the BCFP complaint alleges that the defendants failed to treat their products as “credit” and “loans,” and alleges violations of the Truth-in-Lending Act and the Consumer Financial Protection Act for (i) failure to follow federal credit disclosure requirements, (ii) engaging in deceptive marketing practices, and (iii) failure to follow various state laws governing “loans.”

In this case, the BCFP specifically alleged that Defendants, based in Irvine, CA, lured senior citizens, disabled veterans, and other vulnerable consumers into borrowing money at deceptively high interest rates. The company allegedly offered consumers lump-sum payments of up to $60,000 in exchange for their assigning to the company a larger amount of their future pension and other income streams. Marketing the product as a “purchase” and not a loan, the company allegedly claimed that the advance was interest-free and a useful way to pay off credit card debt. In fact, the Bureau alleges, the discount applied to consumers’ future income streams was a disguised form of interest, equivalent to rates of up to 183%.

Interestingly, though, the Complaint does not address exactly why the challenged transactions are, in fact, extensions of “credit” under the federal Truth-in-Lending Act’s definition of that term and “loans” under state law. We will continue to track the Bureau’s analysis of those issues, because they are arising repeatedly as Fintech and other new companies develop products that seek, in a wide variety of forms, to offer consumers advances in exchange for future cash streams.

On Tuesday, the U.S. Department of the Treasury issued its “Nonbank Financials, Fintech, and Innovation” Report, the fourth in a series of reports outlining the Trump administration’s financial regulatory agenda.  In the report, Treasury presents a new approach to regulation designed to promote “critical” innovation in fintech. The report outlines four broad areas of focus: (1) adapting regulatory approaches to data sharing, (2) battling “regulatory fragmentation” and directly addressing new business models, (3) updating activity-specific regulations across a range of products and services, and (4) promoting “responsible experimentation.”

In addition to announcing a regulatory “sandbox” that would allow fintech firms to gain approval for new products, Treasury takes aim at several controversial issues that have dogged fintechs in recent years. The report argues that the CFPB’s payday lending rule should be revoked, for example, and urges Congress to pass legislation overturning Madden v. Midland Funding—the 2015 2d Circuit case that rejected the long-standing “valid-when-made” rule and applied state law usury laws to purchasers of debt from national banks—and takes aim at the Telephone Consumer Protection Act (TCPA) and other consumer protection laws the report deems outdated. The report also recommends that credit reporting agencies and credit repair organizations should be more effectively regulated and supervised with a view to protecting consumer credit information and educating consumers on improving credit scores.

At practically the same time as Treasury’s report was issued, the Office of the Comptroller of the Currency (OCC) announced that it will begin accepting applications for its long-awaited special-purpose national bank charter. Comptroller Joseph M. Otting announced the move, stating that the charter will “provide more choices to consumers and businesses,” while stressing that any fintech companies providing innovative banking services deserves “the opportunity to pursue that business on a national scale, as a federally chartered, regulated bank.”

The special-purpose charter was initially proposed by former Comptroller Thomas Curry in December 2016 and followed by a manual for charter applicants issued in March 2017. While the special-purpose charter comes with significant capital, liquidity, and risk management requirements, it is intended to provide regulatory certainty to marketplace lenders and platforms seeking the benefits of federal preemption over state licensing, usury and disclosure rules. When the charter was first announced, the OCC proposal sparked criticism from state regulators including the New York Department of Financial Services (DFS) and community banking trade groups, and it is likely any charter application will reignite these debates.


Earlier this week, Acting Director Mulvaney announced the creation of a new “Office of Financial Innovation,” and appointed Paul Watkins, an official who led the Arizona Attorney General’s fintech initiatives, to lead the Office.  The new Office, which will now do the work formerly done under the Bureau’s Project Catalyst, “will focus on creating policies to facilitate innovation, engaging with entrepreneurs and regulators, and reviewing outdated or unnecessary regulations.”  The Bureau’s announcement also described the encouragement of “consumer-friendly innovation” as a “key priority” for the agency.

The announcement may be notable for its mention that Watkins had “managed the FinTech Regulatory Sandbox” for Arizona, the first state fintech sandbox in the country. This might possibly presage Bureau efforts to offer its own form of a “sandbox,” which in theory would allow a company limited access to the marketplace in exchange for relaxing some regulations.  Another point to watch for will be whether the Bureau follows this announcement with any proposal to revise its “No Action Letter” policy.  That policy, though aimed specifically at providing financial innovators with more regulatory certainty, is viewed by many as restrictive and has resulted, to date, in only one No Action Letter in the two years of the Policy’s existence.