Regulation
Puff, Puff, Pass the Bill: House Approves Cannabis Banking Bill, Forwards it to Senate
October 10, 2019
Last month the House of Representatives passed the SAFE Banking Act, which provides for the lifting of red tape preventing cannabis companies from accessing banks and lenders.
Currently, such businesses are unable to make use of these financial services as regulators have put an outright ban on such dealings given cannabis’s federal Schedule 1 drug classification.
Having been approved 321-103, the House vote appeared bipartisan with almost half of the voting Republicans being in favor of SAFE. However, this is just the first step for the bill, as now it will be passed onto the Republican-held Senate, and then if it is approved there, the president’s office. With Republicans having demonstrated split attitudes towards legalization it is unclear which way the vote will go.
Regardless, the victory in the House has been celebrated by cannabis advocates and lobbyists alike. Talking to NBC, Platinum Vape President George Sadler described the vote as “a blessing.” While Aaron Smith, the Executive Director of the National Cannabis Industry Association, said that “it’s incredibly gratifying to see this strong bipartisan showing of support in today’s House vote … We owe a great debt of gratitude to the bill sponsors, who have been working with us to move this issue forward long before anyone else thought it was worth the effort … This bipartisan legislation is vital to protecting public safety, fostering transparency, and leveling the playing field for small businesses in the growing number of states with successful cannabis programs.”
For now though, no date has been set for the Senate vote on SAFE. With this version having been introduced by Senators Cory Gardner (R-CO) and Jeff Merkley (D-OR), and the Banking Committee Chairman Mike Crapo having recently asserted that cannabis banking legislation is being considered by his chamber, it appears as if this second round of voting may also benefit from bipartisan support.
NYC Taxi Industry Leads Charge to Ban Confessions of Judgment Nationwide
September 30, 2019
New York State may have outlawed entering confessions of judgments (COJs) against out-of-state debtors in their courts, but federal legislators want to see a ban on their use nationwide. On Thursday, the House Financial Services Committee convened for a hearing on predatory debt collection. Notably adding small businesses to the mix with consumers, COJs repeatedly came under attack.
Testimony presented by Bhairavi Desai, executive Director of the 22,000 member New York Taxi Workers Alliance, claimed that predatory lenders are aggressively relying on COJs to “intimidate borrowers into making large sum payments towards outstanding loan balances.” Desai provided one such COJ affidavit to the Committee in which allegedly victimized defendants had confessed to judgment for nearly $600,000. The plaintiff was 160-year-old New York Community Bank, not an alternative finance company.
The NYC taxi business has moved front and center after the New York Times published a bombshell story in May that alleged lenders unfairly trapped Taxi medallion owners into loans they could not repay. The occasional reliance on COJs was vaguely mentioned but struck a nerve with critics already frothing to make them illegal.
Desai explained that unusually high suicide rates in the taxi business are rooted in part by predatory lending practices. “The real stories are the tens of thousands of drivers we see today that are really dying a slow death from despair, from stress from the crisis of this debt,” she told the Committee on Thursday. “Confessions of judgment have basically meant that when [the taxi medallion market] started to fall, drivers were told that they had to pay up the total sum of what was owed on that debt, had to produce $350,000, $400,000 overnight.”
FTC Commissioner Rohit Chopra voiced his support for a COJ ban when called upon to testify. “The FTC has unique jurisdiction to attack debt collection and discrimination issues in the small business lending market and we should look to restrict terms like confessions of judgment that the FTC banned in consumer loans ages ago.”
The Bloomberg stories that led to new legislation in New York were only mentioned during the hearing once and only in passing.
A slew of bills have been introduced to pursue the Committee’s initiatives. In addition to the Small Business Fairness Lending Act that would outlaw COJs from small business finance transactions nationwide, the Small Business Fair Debt Collection Protection Act seeks to apply the existing Fair Debt Collections Practices Act to small businesses and effectively put small business lenders under the regulatory purview of the CFPB.
You can watch the hearing below:
Earnin, Say What’s Your Price? Nas-backed Earnin Comes Under Investigation
September 17, 2019
Earnin, the self-proclaimed alternative to payday loans, is part of a new online lending category that is under investigation in eleven states and Puerto Rico for its similarities to payday loans. With such loans being banned in sixteen states, the app-based personal loans company has drawn the attention of various regulators after it was suggested that its lending model potentially shares a similar APR with payday loans.
Backed by rapper Nas (only as of June and on undisclosed terms), the company came under fire after it was reported that in a meeting its founder and CEO, Ram Palaniappan, discussed hiring a private investigator to look into the past of a New York Post journalist that was writing about them.
Operating under a ‘tipping’ system, Earnin profits from the loans it provides by suggesting that customers give a voluntary tip when repaying their loans. The default amount is $9 per $100 taken, but people have paid up to $14 per $100, this being the limit one can tip.
According to the New York Post, these tips can lead to APRs of over 400% for an individual advance. Uncertainty looms over Earnin’s model as the phrasing of ‘tipping’ confuses whether or not this can be classified as a loan fee. Say what’s your price? Borrowers may not be aware that their tip could put the loan’s cost on par with costly payday loans.
Earnin relies on analytics gathered from customers’ phones, with the company knowing how much users are paid per hour as well as knowing how long they were at work via their location, Earnin can accurately predict incoming wages.
In a company statement, Earnin said that its system “is a brand new model, so we expect, and welcome questions from regulators like the New York Department of Financial Services.” Since this announcement, Earnin no longer suggests a tip to users in New York and Nas has yet to comment on the situation.
Up Next On The New York Legislative Agenda: Funder, Lender, and Broker Licensing
September 10, 2019
New York State Senator James Sanders Jr. has introduced S6688, a commercial financing licensing bill that would require persons or entities engaging in the business of making or soliciting commercial financing products in New York state to obtain a license from the New York Department of Financial Services. The bill covers small business lenders, merchant cash advance companies, factors, and leasing companies for transactions under $500,000.
The bill likely won’t see any activity until the New York legislative session resumes in 2020, at which point it could be amended or killed.
As currently drafted, applicants for a license would be subject to a criminal background search and be required to submit their fingerprints for a review by agencies such as the FBI. In addition to paying an application fee, applicants would be required to maintain liquid assets of $50,000.
Sanders, the bill’s sponsor, is the Chairman of the banking committee. You can read the full text of the bill here.
New York’s COJ Restrictions Have Been Signed Into Law
August 30, 2019
Governor Cuomo has signed S6395, the law that outlaws entering a Confession of Judgment in New York against a non-New York debtor.
Rich Azzopardi, a senior advisor to the governor, said on social media that the law has “closed a loophole that allowed unscrupulous creditors to use NY courts to penalize out-of-state consumers with no ties to the state.” He congratulated Senators Brad Hoylman and Assembly Member Jeffrey Dinowitz for their work on the bill.
Senator Hoylman tweeted in response that “the entire business model of lenders who exploited New York’s court system and laws to prey on out-of-state small businesses through confessions of judgment was immoral.”
The Confession of Judgment ban is very specific, it prohibits the entering of a COJ in New York against a non-New York party. It does not prevent parties from filing lawsuits in New York. It does not prohibit COJs from being filed in other states. This law is significant because approximately 99% of COJs being utilized in the small business finance industry were being filed in New York regardless of where the debtor resided. That is because the New York Court system is the fastest and most efficient when it comes to entering COJs and securing a judgment.
The bill was drafted in response to a controversial story series published by Bloomberg reporters Zeke Faux and Zachary Mider that alleged abuses were taking place in the New York courts via COJs.
New York’s COJ Bill Has Been Delivered To The Governor
August 28, 2019
New York’s infamous Confession of Judgment bill has finally been delivered to the governor for his signature. Although the legislative process offers flexibility to depart from the statutory timelines (as we have witnessed), the governor now presumably has 10 days or less to sign it. Stay tuned.
The Confession of Judgment ban is very specific, it prohibits the entering of a COJ in New York against a non-New York resident. It does not prevent parties from filing lawsuits in New York. It does not prohibit COJs from being filed in other states. This law is significant because approximately 99% of COJs being utilized in the small business finance industry were being filed in New York regardless of where the debtor resided. That is because the New York Court system is the fastest and most efficient when it comes to entering COJs and securing a judgment.
California DBO Making Progress On Finalizing Rules Required By The New Disclosure Law
July 29, 2019
Last October, California Governor Jerry Brown signed a new commercial finance disclosure bill into law. The bill, SB 1235, was a major source of debate in 2018 because of its tricky language to pressure factors and merchant cash advance providers into stating an Annual Percentage Rate on contracts with California businesses. The final version of the bill, however, delegated the final disclosure format requirements to the State’s primary financial regulator, the Department of Business Oversight (DBO).
The DBO then issued a public invitation to comment on how that format should work. They got 34 responses. Among them were Affirm, ApplePie Capital, Electronic Transactions Association, Commercial Finance Coalition, Fora Financial, Equipment Leasing and Finance Association, Innovative Lending Platform Association, International Factoring Association, Kapitus, OnDeck, PayPal, Rapid Finance, Small Business Finance Association, and Square Capital.
On Friday, the DBO published a draft of its rules along with a public invitation to comment further. The 32-page draft can be downloaded here. The opportunity to comment on this version of the rules ends on Sept 9th.
You can review the comments that companies submitted previously here.
Is The COJ Law In Effect Yet?
July 18, 2019
The COJ bill passed, but where’s the governor’s signature?
When the legislature passes a bill in New York State, there’s a documented procedure on the Senate’s website for how it becomes law. If the legislature is still in session, the governor has only 10 days to sign it. If the passed bill is sent to the governor when the legislature is out of session, the governor has 30 days to sign it.
Caught in this process is S6395, the now-infamous COJ bill that prohibits the filing of a COJ in New York State against a non-New York resident. Its passage on the 18th of June and the closing of the legislative session theoretically put the bill on the 30-day track for the governor’s signature.
Indeed, the Farm Laborers Fair Labor Practices Act, which was debated on the Senate floor for several hours during the closing few days, has already been signed. So too have other bills, but not the COJ bill whose deadline for a signature was perceived to be around now.
But such deadlines are a bit more fluid in practice, legislative insiders say. The act of “delivering” the bill to the governor is a step all on its own and the legislature can actually withhold its formal delivery to avoid setting the clock in motion.
According to an official who’s familiar with the process, it could be months before the dotted line is signed. The official, who asked not to be named, explained that upon the bill being delivered to the governor’s office, only then will Governor Andrew Cuomo have 10 days to sign it. The legislature can also technically withhold delivery up until the very end of the year. This, the official explained, is done to ensure that legislation is thoroughly vetted, with extra checks to guarantee that bills are not unconstitutional and that they’ll lead to no previously unforeseen consequences.
Cuomo has already signed a bill allowing Congress to access Trump’s state tax returns, a bill raising the tobacco & e-cig buying age to 21, a bill guaranteeing women equal pay, and many more. All of which means the COJ bill could be next at any moment or it could be sentenced to signature purgatory until the last business day of 2019.
As the public waits with bated breath, small business finance companies are already planning next steps. Ian Nadjari, the Managing Director of Riverstrong Capital Funding, who said that his office was “not feeling good about [the bill],” is planning to drop their use of COJs entirely and update the terms of their future contracts. Nadjari aims to continue business regardless of the impending changes, he said.
Uplyft Capital CEO Michael Massa, explained that the bill is just a “change that we’ll have to adapt to. Certain players will be okay if they understand how COJs work.”
Several small business funding CEOs explained to deBanked that they welcome S6395 with the belief that it will level the playing field. One asserted that it will “eliminate some of the bad practices in the market,” such as the “offensive, aggressive measures” taken by firms who filed COJs too quickly or potentially in bad faith.
That perception, that such practices are not only possible, but have occurred, has garnered attention far beyond New York State. On June 26, for example, several members of Congress held a hearing to discuss COJs and their impact to further support for a federal bill that would ban them from use nationwide. That bill has a quite a bit a ways to go before it ever potentially even comes up for a floor vote.
