The Office of the Comptroller of the Currency (OCC) issued a proposed rule that will allow credit products to return to debit cards.
I have suspected that the credit issue was far from resolved. The Office of Thrift Supervision (OTS) issued a directive last fall that forced MetaBank to pull its i-advance product. I-advance was a short-term credit product offered to customers that attached a regular direct deposit to their debit cards. The costs were high – about $2.50 for every $20 for up to 35 days.
The OCC rule provides guidelines. The guidelines set ground rules for credit. Notably, they don’t create explicit bars about pricing, about usage, or about ability to pay. The OCC is going to let banks establish those practices. Having set that in the marketplace, the OCC is reserving the right to intervene.
Here are the highlights:
- Issuers are responsible to see that consumers get disclosures on the cards, and that they are told about alternatives. Left unsaid is if the issuers will be responsible for the actions of the companies that distribute these cards. NetSpend cards had i-advance and they are marketed in pawn shops, payday stores, and other less-than-ideal environments. The FDIC made refund anticipation loan bank partners responsible for the actions of tax preparers. That ultimately became a sticking point between the FDIC and Republic Bank. The OCC proposal isn’t clear about that.
- Issuers must observe all relevant laws that govern the provision of credit. This would include the Federal Trade Commission Act, the Truth-in-Lending Act, and the Equal Opportunity Credit Act. This is important, but it should go unsaid. We hardly need a regulator to say that existing law still applies.
- No automatic enrollment. This means that customers won’t be given cards with credit unless they initiate the process of getting credit. That sounds good, but this is a non-change. Customers had to enhance their existing MetaBank debit card to get credit. The main requirement was that the customer set up direct deposit on to their card. This was an absolute must to make the system work in the first place. A payday loan isn’t made without a deferred deposit, and an i-advance needed a future deposit. The OTS squashed that procedure. The OCC is making it a possibility again. Let’s concede that the OCC is reserving the right to supervise how it is done, but even so, it is a case of letting the cat back out of the bag.
- Customer must demonstrate ability-to-pay. Ability to pay is an important principle in any gauge of safety and soundness. It was a principle that was largely ignored during the era of subprime mortgage lending. This needs much more clarity. How will the calculation be constructed? What characterizes a level beyond a reasonable degree?
- Prudent limitations should be set for credit extensions, customer costs, and usage. This is another important principle. If the OCC implements this principle the right way, then it protects the consumer against some of the abuses that attend other problematic credit products. Rolling over loans is an egregious problem with payday lending. While the literal mechanics of a loan that is repaid by the next direct deposit would appear to eliminate roll-overs, the on-the-ground likelihood is that many consumers will get out of the hole that they are in after paying that first fee by taking out another advance on their next direct deposit.
- Banks must monitor volume of deposit-related credit products, customer usage, and revenue produced. Banks will be monitoring all of these anyway. Unsaid is whether or not the banks will have to disclose those findings, either to the SEC if they are a publicly-traded company, or directly to the OCC. The OCC doesn’t have a say on what the SEC requires. Moreover, a rule that requires monitoring is essentially a rule that precludes any kind of enforcement action. The rule says that you have to notice how your business is doing.
I am currently waiting for further clarification on these questions from the OCC. I hope that there is more reason to be optimistic.
The OCC approach is hands-off. They deserve credit for acknowledging that upfront. “This approach,” says the language in the Federal Register, “provides a high degree of flexibility for banks to structure and operate their programs in a prudent and safe and sound manner that provides for fair treatment of customers without dictating specific product terms.”
If I was working at MetaBank, I would be pretty thrilled. The OTS made MetaBank shut down the i-advance. Well, the OCC is going to take over the supervision of financial institutions that were formerly regulated by the OTS (with a few exceptions.) This would seem to give MetaBank the space to re-open the i-advance.
The new proposal will also set parameters for overdraft.