By Michael Calhoun
A recent rule by the Office of the Comptroller of the Currency (OCC), a federal bank regulator, threatens to upend the rights and responsibilities between banks and their nonbank lender partners, displacing state regulators and subjecting consumers to predatory loans. The U.S. Senate has already, with a bipartisan vote, passed legislation to rescind the rule, using a mechanism called the Congressional Review Act (CRA). The House of Representatives is scheduled to vote on the measure this week to do the same, which would then send the legislation to the President’s desk for final approval. Passing this measure is needed to protect consumers and to preserve long-standing precedent permitting states to enforce their laws.
Banks regularly enter into partnerships with nonbank entities in carrying out their operations and providing services to customers. However, some nonbank lenders have attempted to use banks as vehicles to evade state laws, since banks are typically exempt from certain state laws by virtue of federal preemption. Some nonbanks have added the name of a bank to their loan documents and then claimed they are entitled to the bank’s preemption rights over state regulation and consumer protection laws, including usury limits.
This reached a peak in the early 2000s when some states moved to prohibit 400% interest payday loans. Some payday lenders responded by entering into agreements whereby they paid a small fee to a few banks to add their names to the loan documents and claimed preemption from these state laws. They combined this with mandatory arbitration clauses that effectively prevented consumers from being able to challenge these arrangements in court. Eventually, state regulators and attorneys general joined with federal regulators to shut down these arrangements. They won by utilizing legal precedent, dating back to at least 1825, that courts look at transactions to determine who was the true lender – the party with the predominant economic interest — and that state laws apply to the loan if the true lender was not a bank with preemption rights. At that time the OCC was adamant that preemption rights were not something that banks could lease out to nonbank entities for a fee. This shut down these so-called “rent-a-bank” schemes, and state laws were again enforced against these nonbank lenders.
In recent years, lenders have again sought to use these bank partnerships to avoid state regulation and laws. Last October, the OCC reversed its prior position by issuing a rule that seeks to displace this longstanding law by both asserting that the OCC has authority to override the court true lender doctrine and enacting a standard that would specifically grant preemption rights to nonbank lenders if they merely put the partner bank’s name on the loan document.
This rule would upend the current bank regulatory system without a coherent alternative. It would grant nonbank entities sweeping preemption without the chartering requirements or oversight requirements of banks.
Defenders of the rule claim the OCC will prevent banks from enabling predatory loans. The track record shows otherwise. One op-ed defending the OCC states that the “OCC has shown itself willing to bring enforcement actions against banks that fail to exercise proper control.” The author provides a link to two enforcement actions, which were both taken nearly two decades ago. However, there are several high-cost rent-a-bank schemes that the OCC – and the Federal Deposit Insurance Corporation (FDIC) – have allowed to operate for the past few years while ignoring repeated entreaties from Congress, state officials, and consumer advocates to enforce the law.
During a recent congressional hearing, the former acting comptroller who issued the rule could not point to any enforcement actions when asked by Senator Elizabeth Warren (D-Mass.). The senator referred to the experience of a married couple who owned a small restaurant supply distributor in Massachusetts. They are immigrants, with a limited knowledge of English, who took out a loan with a 92% annual interest rate, well above Massachusetts’ usury cap of 20% that applies to nonbank lenders in the state. The non-bank World Business Lenders arranged the loan, set the terms, and collected the payments even though the name Axos Bank, an OCC-supervised bank, was on the loan document. The couple had to sell their house to get out from under the loan.
Similarly, a restaurant owner in New York is facing foreclosure as a result of a loan at 268% annual interest from World Business Lenders, which again is using the name of Axos Bank.
The FDIC and OCC have also made clear what they view as acceptable lending by jointly filing an amicus brief defending a rent-a-bank loan of $550,000 at 120% interest to a small business in Colorado, where the state has a rate cap far below that.
More broadly, the OCC has a long history of preempting state consumer protection law to the detriment to consumers and the economy, most notably in the run-up to the 2008 Financial Crisis. In recognition of this harm, the Wall Street Reform Act of 2010 “curtailed its power to preempt state laws, especially as to nonbank entities….”
Another claim by defenders of the rule, made recently on the U.S. Senate floor, is that banks in these partnerships would have to “assess a borrower’s ability to repay before making the loan” or “face serious consequences from their regulator….” The existence of around a dozen ongoing partnerships with loans near or far exceeding triple-digit interest rates indicates that unaffordable loans are being made without repercussions. So the evidence does not support that federal regulators will prevent an explosion of predatory schemes likes these should the OCC’s rule remain in place.
Abundant research from California, SEC filings, and elsewhere show that consumers are more likely to default on high-interest loans. High-interest lenders often target Black and Latino communities with products that pull people into financial quicksand. These loans are not responsibly underwritten, as a credit union in the deep south analyzed rent-a-bank loans taken out by their members and documented “a clear disregard for borrowers’ ability to repay.”
Nearly every state has an interest rate cap. These limits are seriously undercut by the OCC rule, so it’s unsurprising that state officials are pushing back. Eight state attorneys general have sued over the rule, which was hastily proposed and approved in just 100 days. The District of Columbia attorney general has sued nonbank lenders trapping his constituents in debt through rent-a-bank loans. He has alleged that OppFi and Elevate “misleadingly marketed high-cost loans” they made to thousands of D.C. residents.
A letter calling for Congress to rescind the rule was signed by a bipartisan group of 25 state attorneys general. The Conference of State Bank Supervisors (CSBS), which represents Republican and Democratic officials, sent Congress the same message, saying “the OCC should not erode state consumer rights and protections, particularly when it refuses to follow the process mandated by Congress to preempt those protections.”
The Biden administration has announced its support for the CRA resolution to repeal the rule, noting its harm to financial regulation and consumers. The House of Representatives now has an opportunity to help protect consumers by approving the measure and sending it to the President’s desk for his signature.
The author did not receive financial support from any firm or person for this article or from any firm or person with a financial or political interest in this article. They are currently not an officer, director, or board member of any organization with an interest in this article.