Monday September 5th 2016, Daily News Digest

United States

CFPB Scores Big Win in CashCall Lawsuit That Turns on “True Lender” Analysis, (Lexology), Rated: AAA

The court first ruled that CashCall was the true lender on the loans that were issued by Western Sky Financial because “the entire monetary burden and risk of the loan program was placed on CashCall, such that CashCall, and not Western Sky, had the predominant economic interest.”

Having reached this conclusion, the court then determined that because CashCall was the “true lender,” the choice of law provision in the loan agreements at issue—which provided that the laws of the Cheyenne River Sioux Tribe (CRST) would apply—should be disregarded in favor of the laws of the borrowers’ home states.

Finally, the court held that CashCall’s founder, sole owner, and president was also liable for CashCall’s corporate violations because he participated in and had the authority to control the conduct at issue, and because he knew of or was recklessly indifferent to the misrepresentations.

A federal district court in California handed the Consumer Financial Protection Bureau (CFPB) a big win on Wednesday, August 31, 2016, granting the agency summary judgment on liability in its lawsuit against CashCall, Inc., its affiliated entities, and its owner.

In a 16-page decision and order, the US District Court for the Central District of California ruled that CashCall engaged in deceptive practices by servicing and collecting on loans in certain states where the interest rate on the loans exceeded the state usury limit and/or where CashCall was not a licensed lender.

The decision represents an additional judicial touchpoint on the important question of who is a “true lender” in a transaction and validates, at least for now, the CFPB’s theory that collecting on loans that state law renders void and/or uncollectable constitutes a violation of federal law.

The court’s decision is important both to CFPB enforcement efforts and to the validity of bank partner programs. The CFPB has at least one other pending lawsuit in which it has asserted a similar theory of liability that collecting on loans rendered void by state law constitutes unfair, deceptive and abusive conduct (UDAAP). Moreover, the CFPB may be emboldened by this decision to identify additional ways to “federalize” state law violations under its expansive UDAAP authority.

With respect to the “true lender” question, the decision is inconsistent with standards adopted by other courts. Some courts have determined the “true lender” based solely on the creditor named in the loan agreement. Other courts have determined the true lender through a narrow evaluation of facts regarding which party engages in the three non-ministerial acts that banking regulators have identified: (i) the determination to extend credit; (ii) the extension of credit itself; and (iii) the disbursement of funds resulting from the extension of credit.

Online Lenders Face Higher Litigation Risk After U.S. Court Ruling, (Nasdaq), Rated: AAA

Former CFPB lawyers said the CashCall decision is more likely to spur further CFPB actions against tribal lenders that use such exemptions to make loans online that don’t mesh with certain state laws. The agency has been careful not to take a public stance seen as too aggressive with marketplace lenders as it is a fairly new industry and regulators are wary of killing innovation through new rules.

The agency has been careful not to take a public stance seen as too aggressive with marketplace lenders as it is a fairly new industry and regulators are wary of killing innovation through new rules.

“I don’t think this means the CFPB will target marketplace lenders,” said James Kim, a former senior enforcement attorney at the CFPB who is now at Ballard Spahr LLP. “Having said that, it’s still dangerous for marketplace lending because state authorities and plaintiffs’ lawyers will use this case against them.”

RiverNorth Marketplace Lending Fund Nears Launch, (Crowdfund Insider), Rated: AAA

Chicago-based RiverNorth Marketplace Lending Corporation is poised to launch a fund that will be investing in marketplace lending assets under the 40s Act as a non-listed closed end fund. A substantial portion of the fund is expected to be investing in whole loans. The filing indicates that a substantial portion of the marketplace loans will originate on LendingClub and Prosper – at least initially.

The investment objective of the fund is to seek a high level of current income with at least 80% of its managed assets being in marketplace lending investments.  The new investment vehicle expects to invest up to $1 billion in loans from these online lenders. The minimum initial investment in shares will be $1,000,000, with a minimum subsequent investment of $5,000.  The fund will use leverage to help boost returns and overall leverage is predicted to be approximately 10% of the fund’s net assets at launch. RiverNorth will extend quarterly repurchase offers from 5% to 25%.

You can read the entire filing here.

How does Moody’s respond to questions about whether online lending is a bubble?, (Alt Fi), Rated: AAA

Moody’s published a report on the potential benefits and pitfalls of partnerships between banks and marketplace lenders on Wednesday. The report states that customer acquisition costs amount to around 25 per cent of revenues for some platforms, but that bank partnerships can lower these costs by “rebalancing the channel mix”.

Of course, the elephant in the room is the fact that some banks are now beginning to build their own indigenous funding solutions. The Moody’s report makes mention of Wells Fargo’s FastFlexFM.

Moody’s Jim Ahern regularly reminds inquisitors that the estimated size of the collective pool of marketplace loans in the US is a mere $70-80bn. A drop in the ocean when compared to the scale of the subprime mortgage bubble.

The benefits of securitisation in fintech include lowering funding costs and channeling finance through to the real economy.

Ahern also stressed that securitisation brings an extra layer of scrutiny to bear upon marketplace loan portfolios. Whenever Moody’s rates a bond, the underlying loans are subjected to a rigorous third party analysis.

Bank collaboration with P2P platforms rising, (Euromoney), Rated: AAA

SMEs will often try banks first to get better rates, which can be around 4%. This is in comparison with interest rates at Funding Circle, which typically start from 6%, and increase depending on the assessment of the individual customer.

One bank that has already taken the move is Santander. It has been working with Funding Circle for two years. The bank’s focus is on providing better-quality customer service by referring customers to the platform if the bank itself cannot provide financing. Following its success, Funding Circle signed a similar agreement with RBS at the beginning of the year.

In the US, Lending Club already has agreements with Union Bank and Alliance Partners, which manages the BancAlliance consortium of small local banks.

Santander does not take any fees from the borrowing clients it refers, but not all banks will operate in this way.  Misys’ Jollant says this potential to take a cut will make collaboration even more appealing, adding: “The bank is earning through two points – taking an origination fee that can be around 3% to 6% and a second 1% fee for payments processing and servicing the account. There is certainly money to be made through P2P for the banks.”

Banks will no doubt be delighted if they can make this money while dumping the actual credit risk on investors coming through the P2P platforms, so avoiding capital charges.

The next stage might be the potential opening up of a mandatory referral process. The UK government has assessed the possibility of SMEs being referred on to alternative lenders if their banks are unable to provide funds. These borrowers’ information will be passed on to a referral pool at the British Business Bank, which P2P platforms can access.

United Kingdom

Adviser shuns P2P to back sector’s selling platforms, (FT Adviser), Rated: A

Philip Milton, of Devon-based Philip J Milton & Co, said he invested up to £1m from one of his company’s strategies into P2P Global, buying when the shares were worth £10.30 and selling when they were worth £11.93.

He has since been facing questions from his clients about whether they should put their money into a P2P platform.

P2P giant Zopa to cut rates, (FT Adviser), Rated: A

Comments: We covered these news for our readers on Friday. We found some additional important info to share regarding these news.

In a blog posted on the company’s website, it said all of its lender rates will decrease by 0.2 per cent from the 8 September.

Andrew Lawson, chief product officer at Zopa, said headline rates from other loan providers have fallen between 0.1 and 0.3 per cent since the interest rate cut.

He also pointed out that banks have already reduced their rates dramatically, in many cases by more than 0.25 per cent.

“This lack of competitiveness for investors from the banks has led to a surge in new lenders at Zopa, meaning slower lending speeds and queues of, on average, 10 days for our Classic account.

“The reality is no bank, deposit-taker or lender, is completely disconnected from the bank rate.

Australia

Innovation and fintech are the focus of ASIC’s Corporate Plan, (Finder), Rated: A

The Australian Securities and Investments Commission’s (ASIC) new corporate plan renews its focus on fintech by outlining how it will mitigate the risks of digital disruption. The plan comes after ASIC’s budget was extended by $127.2 million in April.

The plan identified five key challenges to ASIC’s long-term vision, two of which related to fintech, as well as the key risks it will focus on in 2016-17 – 2018/19.

• Following in the same line as its guidance for marketplace lending, ASIC plans to progress FSI initiative on non-cash payments as well as working with the Treasury on the ePayments code.

India

Why online lending should not be regulated,(DailyO), Rated: A

Comment: a strange article which at 1st recommends no regulation and then points out a reasonable regulation. I believe the title should be instead: ” A proposal on how online lending should be regulated”. It is Lending Times’ view that anytime somebody touches somebody else’s money the temptation is too big and regulation is required. 

In markets in early stages of their development, regulation is a burden for both the emerging sector and the regulator alike.

Whether the lending marketplace system in India would want to emulate the Chinese diffusion model or carve out its own unique model of growth and viability is anyone’s guess. But regulation will play a big part on how this pans out in India.

Markets, if left alone, are self-correcting in nature.

As P2P does not carry liabilities on its books and no conventional balance sheet risks as such (P2P platforms source their income predominantly from arrangement fees from both sides), these platforms, asset-light in essence, become “non-banking, non-financial companies”. Therefore,

1. The proper regulatory authority for “non-banking, non-financial companies’ is the ministry of corporate affairs. However, these companies should register with the Reserve Bank of India (RBI) so that at any point the central bank can track the growth of this sector and make mid-course corrections for systemic risks.

2. Whilst they register with the relevant regulator, they must remain a self-regulating mechanism, which is a self-regulating organization (SRO), as in microfinance and pre-paid wallet sectors. This mechanism supports and supplements regulatory bodies and reduces their burden of supervision.

3. Business rules should be not attempted to be granularly defined or cast in stone in early stages.

Here are a few ways in which to go about it:

a) Among proposed guidelines, P2P lenders are required to put investors’ money in nodal/escrow accounts in banks. Under such an arrangement, banks would have to disclose an array of data including the platform’s number of borrowers and lenders and its volume of bad loans. These can be done equally by an SRO and backstopped by credit rating agencies.

b) Subsequently, the SRO from day one (working closely with the relevant regulating body, and across) can also work out detailed guidelines on various industry safeguards like leverage, interest rate caps, lending/borrowing caps, borrowing processes, KYC, underwriting norms and soft and hard credit check.

c) Since the tech platform has no financial liabilities, exposures or provisioning requirements (it just connects lenders with borrowers), the equity of Rs 2 crore is high. Most companies are happily capitalized at tens of lakhs (pre-funding) with modest debt:equity ratio. Therefore, a proportional capital base dependent on the size of the portfolio may be better.

Author: