TWENTY-EIGHTH LEGISLATURE, 2016
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO CHECK CASHING.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that deferred deposit agreements, commonly referred to as payday loans, are small, short term, unsecured loans that borrowers commit to repay from their next paycheck or a regular income payment. According to a study by the Pew Charitable Trusts, the majority of borrowers use deferred deposit agreements for recurring expenses, rather than unexpected expenses or emergencies, because they live paycheck to paycheck. Furthermore, deferred deposit agreements often last well beyond a borrower's next paycheck. When fees are included, a typical deferred deposit loan payment may take one-third of a borrower's next paycheck, an amount that most consumers who turn to deferred deposit lenders cannot afford. According to Pew, the average deferred deposit loan borrower is in debt for almost six months a year and pays an average of $520 in fees for $375 in credit.
The legislature further finds that existing state law permits check cashers to charge a fee of fifteen per cent of the face value of a check and lend up to a maximum of $600. This fee can amount to an annual percentage rate of four hundred fifty-nine per cent, which can trap Hawaii borrowers in a cycle of high interest loans. The legislature notes that there is a growing trend around the country to provide more consumer protections for deferred deposit loans. According to the Consumer Federation of America, the nationwide trend is toward an annual percentage rate cap at thirty-six per cent or less on these types of small loans. The thirty-six per cent cap also follows precedent established by the federal government, who in 2006 made it illegal to charge more than a thirty-six per cent annual percentage rate on payday loans to active-duty service members and their families.
The legislature additionally finds that deferred deposit loans can be regulated to address certain problems within the industry without denying customers access to these loans. The legislature notes that Colorado and Washington have enacted certain payday loan reform laws. For example, in Colorado, borrowers now spend forty-two per cent less annually on deferred deposit loans, while receiving more days of credit. Colorado has also seen a decline in the number of defaults per borrower and a decrease in the amount of fees for returned checks.
Accordingly, the purpose of this Act is to increase certain consumer protection aspects of the deferred deposit loan industry by:
(1) Specifying that a customer has the right to rescind a deferred deposit by returning the principal amount used to fund the deferred deposit within a specified time frame;
(2) Permitting customers to convert a deferred deposit into a loan installment plan in certain circumstances and specifying requirements for the loan installment plan;
(3) Protecting against harmful collection practices;
(4) Adding a definition for annual percentage rate;
(5) Requiring a check casher to provide a written agreement to a customer that clearly discloses specific information relating to the cost and fees associated with the deferred deposit, among other things;
(6) Capping the annual percentage rate at no more than thirty-six per cent for deferred deposit of a personal check; and
(7) Permitting prepayment of deferred deposit agreements and loan installment plans with no additional fees.
SECTION 2. Chapter 480F, Hawaii Revised Statutes, is amended by adding three new sections to be appropriately designated and to read as follows:
"§480F-A Right of rescission. (a) A customer shall have the right to rescind a deferred deposit, on or before the close of business on the next day of business at the location where the deferred deposit was originated, by returning the principal in cash or the original check disbursed by the check casher to fund the deferred deposit. The check casher may not charge the customer for rescinding the loan and shall return to the customer any postdated check taken as collateral for the deferred deposit or any electronic equivalent.
(b) The check casher shall conspicuously disclose the right of rescission to the customer in the written agreement made pursuant to section 480F-4(b).
§480F-B Deferred deposit loan installment plan; terms; restrictions. (a) If a customer notifies a check casher that the customer will be or is unable to repay the deferred deposit prior to the maturity of the loan term in writing, the check casher shall inform the customer that the customer may convert the customer's deferred deposit to a loan installment plan, pursuant to subsection (d). The check casher shall convert the deferred deposit to a loan installment plan if the customer requests such conversion.
(b) Each agreement for a loan installment plan shall be in writing and acknowledged by both the customer and the check casher. The check casher shall not assess any other fee, interest charge, or other charge on the customer as a result of converting the deferred deposit into a loan installment plan.
(c) The loan installment plan agreement shall provide payment terms for the total amount due on the deferred deposit as follows:
(1) For a loan amount of $400 or less, a period of at least ninety days; and
(2) For a loan amount over $400, a period of at least one hundred eighty days;
provided that the loan term shall not be longer than six months.
(d) Payments for the loan installment plan shall not exceed five per cent of a customer's monthly gross income, calculated at the time of conversion from a deferred deposit to a loan installment plan. The loan installment plan shall provide for equal installment payments; provided that the final loan installment payment may be a balance of the loan installment plan.
(e) The customer shall provide proof of income at the time of the conversion from a deferred deposit to a loan installment plan; provided that if the customer fails to provide proof of income or does not have income, the deferred deposit shall become due and payable.
(f) All outstanding principal, costs, and fees allowed by this chapter, associated with the deferred deposit loan converted to a loan installment plan, shall be amortized over the life of the loan installment plan.
(g) The customer may pay the balance of the loan installment plan at any time. The check casher shall not charge any penalty, fee, or charge to the customer for prepayment of the loan installment plan by the customer. If the customer prepays the loan installment prior to the maturity of the loan installment term, the check casher shall refund to the customer a prorated portion of the unearned cost and fees, based upon the ratio of time left before maturity to the loan installment term.
(h) The check casher shall conspicuously disclose the availability of a loan installment plan to the customer in the written agreement made pursuant to section 480F-4(b).
(i) A check casher's violation of any of the requirements for loan installment plans shall be a violation of this chapter.
§480F-C Restrictions on collection by check casher or third party. (a) A check casher may not threaten criminal prosecution as a method of collecting a delinquent deferred deposit or threaten to take any legal action against the customer that is not otherwise permitted by law.
(b) Unless invited by the customer, a check casher shall not visit a customer's residence or place of employment for the purpose of collecting a delinquent deferred deposit. A check casher shall not impersonate a law enforcement officer or make any statements that might be construed as indicating an official connection with any federal, state, or county law enforcement agency or any other governmental agency while engaged in collecting a deferred deposit.
(c) A check casher shall not communicate with a customer in a manner intended to harass, intimidate, abuse, or embarrass a customer, including but not limited to communication at an unreasonable hour, with unreasonable frequency, by threats of force or violence, or by use of offensive language. A communication shall be presumed to have been made for the purposes of harassment if it is initiated by the check casher for the purposes of collection and the communication is made:
(1) With a customer or the customer's spouse in any form, manner, or place, more than three times in a seven day period;
(2) With a customer at the customer's place of employment more than one time in a seven day period or made to a customer after the check casher has been informed that the customer's employer prohibits such communications;
(3) With the customer or the customer's spouse at the customer's place of residence between the hours of 9:00 p.m. and 7:30 a.m.; or
(4) To a party other than the customer, the customer's attorney, the check casher's attorney, or a consumer reporting agency if otherwise permitted by law except for purposes of acquiring location or contact information about the customer.
(d) A check casher shall maintain a communication log of all telephone and written communications with a customer initiated by the check casher regarding any collection efforts, including date, time, and the nature of each communication.
(e) This section shall apply to any employee, agent, or third party assignee of a check casher, for purposes of collection."
SECTION 3. Section 480F-1, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:
""Annual percentage rate" means the rate charged for borrowing, expressed as a single percentage number that represents the actual yearly cost of funds over the term of a loan and includes any fees or additional costs associated with the transaction. The annual percentage rate shall be determined in accordance with the federal Truth in Lending Act for closed-end loans."
SECTION 4. Section 480F-4, Hawaii Revised Statutes, is amended to read as follows:
"§480F-4 Deferred deposits, when allowed. (a) No check casher may defer the deposit of a check except as provided in this section.
(b) Each deferred deposit shall be made
pursuant to a written agreement that has been signed by the customer and the
check casher or an authorized representative of the check casher. The written
agreement shall contain [
(1) The name of the customer;
(2) The transaction date;
(3) The principal amount of the deferred deposit;
(4) The annual percentage rate charged for the deferred deposit;
(5) A statement of the total amount of
any fees charged for the deferred deposit, expressed both in United States
currency and as an annual percentage rate[
(6) The dollar amount of each periodic payment that is due over the life of the deferred deposit;
(7) The name, address, and telephone number of any agent or third-party assignee involved in the deferred deposit;
(8) A notice that the customer has the right to rescind a deferred deposit pursuant to the requirements of section 480F-A; and
(9) A notice that the customer has the ability to convert a deferred deposit into a loan installment plan pursuant to the requirements of section 480F-B.
The written agreement shall authorize the check
casher to defer deposit of the personal check until a specific date not later
than thirty-two days from the date the written agreement was signed. The
written agreement shall not permit the check casher to accept collateral[
except for the customer's postdated personal check in an amount permitted by
(c) The face amount of the check shall not
exceed $600 and the deposit of a personal check written by a customer pursuant
to a deferred deposit transaction may be deferred for no more than thirty-two
days. A check casher may charge [
a fee for] an annual percentage
rate of no more than thirty-six per cent for deferred deposit of a personal
check [ in an amount not to exceed fifteen per cent of the face amount of the
check]. Any fees, costs, and interest charged for deferred deposit
of a personal check in compliance with this [ section] chapter shall
be exempt from chapter 478.
(d) The check casher shall not charge any penalty, fee, or charge to the customer for prepayment of the deferred deposit by the customer. If the customer prepays the deferred deposit prior to the maturity of the loan term, the check casher shall refund to the customer a prorated portion of any unearned cost and fees, based upon the ratio of time left before maturity to the loan term.
(d)] (e) A check casher shall
not enter into an agreement for deferred deposit with a customer during the
period of time that an earlier agreement for a deferred deposit for the same
customer is in effect. A deferred deposit transaction shall not be repaid,
refinanced, or consolidated by or with the proceeds of another deferred deposit
(e)] (f) A check casher who
enters into a deferred deposit agreement and accepts a check passed on
insufficient funds, or any assignee of that check casher, shall not be entitled
to recover damages in any action brought pursuant to or governed by chapter
490. Instead, the check casher may charge and recover a fee for the return of
a dishonored check in an amount not greater than $20.
(f)] (g) No amount in excess of
the amounts authorized by this section and no collateral products such as
insurance shall be directly or indirectly charged by a check casher pursuant or
incident to a deferred deposit agreement."
SECTION 5. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect upon its approval.
Check Cashing; Deferred Deposit Agreements; Fees; Annual Percentage Rate; Right to Rescind; Loan Installment Plan; Collection Practices
Specifies a customer has the right to rescind a deferred deposit by returning the principal amount used to fund the deferred deposit within a specified time frame. Permits customers to convert a deferred deposit into a loan installment plan in certain circumstances and specifies requirements for the loan installment plan. Protects against harmful collection practices. Defines annual percentage rate. Requires a check casher to provide a written agreement to a customer that clearly discloses specific information relating to the cost and fees associated with the deferred deposit, among other things. Caps the annual percentage rate at no more than thirty-six per cent for deferred deposit of a personal check. Permits prepayment of deferred deposit agreements and loan installment plans with no additional fees. (SD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.