Author Archives: Jay Spruill

Jay Spruill

About: Jay Spruill

Jay leads the Marketplace Funding Industry Team and is a member of the Banking Industry Team. Jay has extensive experience advising financial institutions in the development of products and services, including online loan products, and on regulatory matters affecting financial institution business models.

Virginia Study Group Considers Licensing and Supervision of Internet Lenders at Second Meeting

The working group of the Virginia Bureau of Financial Institutions (the “Bureau”), which was established at the direction of the Virginia General Assembly to consider potential legislation to regulate internet lending, held its second meeting on July 15th. The focus of the group is primarily on online closed-end and open-end loans made by non-depository lenders, particularly out-of-state lenders.  Such lenders are not subject to the licensing and other requirements under Virginia’s current consumer finance statutes. At the outset of the meeting, representatives from both the Bureau and the Virginia Attorney General’s office expressed their view that all non-depository lenders making …

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Virginia Bureau of Financial Institutions to Study Internet Lending Issues for Legislative Recommendations

The 2017 Virginia General Assembly tabled a number of bills (HB 1443, HB 1817, HB 2310, HB 2310, HB 2445, and SB 1126) dealing with consumer finance companies, Internet lenders, and open-end credit with the understanding that the issues raised in such bills would be studied by a working group of the Virginia Bureau of Financial Institutions this year. The Bureau study group is tasked with making legislative recommendations for consideration by the Virginia General Assembly in its 2018 session, which convenes in January. The Bureau study will give particular attention to the licensing and supervision of Internet lenders making …

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Virginia General Assembly to Consider Legislation Impacting Online Lending in 2017 Session

Legislation affecting online lending will be among the bills the 2017 Virginia General Assembly considers when it convenes on January 11th for its regular session. Delegate Peter Farrell has prefiled two bills that would impose new licensing requirements and fee limitations on such loans. Similar bills are expected to be introduced by other members of the General Assembly. These measures have the support of the Virginia Bureau of Financial Institutions (the “Bureau”), the Virginia Attorney General’s office, and Legal Aid organizations, among others. With respect to Delegate Farrell’s bills, HB 1443 would subject any lender making consumer loans over the …

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National Bank Charter Will Be Available to Fintech Companies in the New Year

Financial technology companies will soon have a new business model to consider – one that will allow them to avoid the various licensing and other regulatory requirements in the states where they do business. The Office of Comptroller of the Currency (“OCC”), the federal banking agency responsible for the supervision of national banks, announced on December 2nd that it will start granting limited or special purpose national bank charters to fintech companies. There are, however, strings attached. A fintech company electing such a charter will be subject to many of the same rigorous safety and soundness standards that currently apply …

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DC Court of Appeals Rules CFPB’s Structure is Unconstitutional

On October 11, 2016, the United States Court of Appeals for the District of Columbia Circuit ruled that the Consumer Financial Protection Bureau’s (CFPB) structure is unconstitutional. PHH Corporation v. Consumer Financial Protection Bureau, No. 15-1177, 2016 WL 5898801 (D.C. Cir. Oct. 11, 2016). Unlike most independent agencies, which contain multi-member structures to check against arbitrary decision-making and abuse of power, the CFPB is an independent agency lead by a single Director subject only to for-cause removal by the President of the United States under the Dodd-Frank Act. The Court of Appeals observed that this structure “represents a gross departure …

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Marketplace 2.0

Online marketplace lending platforms are offering compelling new ways for consumers and businesses to obtain loans. Driven by innovations in financial technology (FinTech) that have created dramatic efficiencies, these platforms have changed the face of financial services. According to a KPMG report, the U.S. online alternative finance industry originated $36.4 billion in loans in 2015, up from $11.6 billion in 2014. This segment of the finance industry has obviously been expanding rapidly and we anticipate this expansion will continue. Just as FinTech has created new online lending models, crowdfunding has created new models for equity investing, donations, and rewards. A …

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Kicking the Can Down the Road: SCOTUS Denies Petition to Madden v. Midland Funding

On June 27, 2016, the Supreme Court denied certiorari in Madden v. Midland Funding. The decision is unsettling for the banking and marketplace lending industries, which had hoped the Supreme Court would seize the opportunity to reverse the Second Circuit’s controversial holding. As a result of the denial, secondary (non-bank) debt purchasers operating within the Second Circuit are ostensibly prohibited from collecting interest charges in excess of state usury caps – a practice that traditionally had not been an issue as long as the interest charges were permissible under the original loan agreements. The Solicitor General and the OCC had …

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Financial Services Roundtable Creates FinTech Collaboration Program

The Financial Services Roundtable, a leading financial services trade association that represents the interests of the top banks and other large financial institutions in the country, announced this week a new Tech Collaboration Program to bring together leaders from financial technology companies (“FinTech”) and traditional financial institutions. The program is intended to help FinTech and financial institutions work cooperatively together to develop best practices and guidelines to improve security, efficiency and to better meet consumer demand for financial services. The program reflects a friendlier approach to FinTech from the financial services industry. Banking leaders elsewhere have expressed dissatisfaction that FinTech …

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CFPB Proposes Ban on Class Action Waiver Provisions in Arbitration Agreements

On May 5, 2016, the Consumer Financial Protection Bureau (CFPB) announced proposed regulations that would prohibit financial service providers from using arbitration clauses that prevent consumers from bringing class action lawsuits. Under the CFPB’s proposal, companies would still be able to include arbitration clauses in their contracts, but the clauses would be required to expressly state that they cannot be used to prevent consumers from being part of a class action lawsuit. In addition to the ban on class action waivers in consumer arbitration agreements, the proposed regulations would require companies that arbitrate disputes with consumers to submit information regarding …

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OCC Signals Support for FinTech Innovations

The federal banking agency that supervises national banks and federal savings associations – the Office of the Comptroller of the Currency (“OCC”) – has formally taken up financial technology (“FinTech”) as an important regulatory issue. In a white paper released on March 30th, the OCC outlines principles that the OCC will follow in its approach to regulating FinTech. The white paper reflects the OCC’s desire to work with banks and FinTech firms to foster the responsible development of FinTech innovations. The white paper seeks public comment on issues raised in the paper by May 31st.

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