Posts Tagged payday lending
In the struggle to regulate the short term, small dollar loan industry, one theory regularly pops up. This theory states that if such loans are capped and regulated, violent loan sharks will take the place of legitimate small loan businesses that would not be able to survive under such onerous regulation. The violent loan shark threat is mainly raised by industry members and supporters, as most recently happened in Idaho, where a legislative fight to rein in payday loans is waging. An industry supporter quoted in the local news cautioned that making it harder to obtain payday loans could drive borrowers underground. “The danger is that they turn from this sort of legal high-cost loans to illegal high-cost loans such as loan sharking, which, of course, is not a good thing.” In a 2012 article from the Washington and Lee Law Review entitled Loan Sharks, Interest-Rate Caps, and Deregulation, Professor Robert Mayer debunks this “loan shark thesis” using well-researched historical evidence and common sense analysis.
According to Mayer, loan sharks have existed in America at least since the Civil War. The name comes from their predatory behavior, in which the lender seeks to keep the borrower in a cycle of repeated renewals of the high-interest loan. The lender is more concerned with the regular interest payments than the principal itself. Enforcement methods of these early loan sharks did not involve violence at all; instead, loan sharks focused on non-violent personal harassment, wage assignments, and power-of-attorney based judgments to get their money. The idea of violent loan sharks with ties to organized crime did not arise until the 1960s, when splashy headlines captured the public’s attention and forever linked the term to violent enforcement of repayment.
Payday loan regulation was enacted in about three quarters of the states by the mid-twentieth century and was based on a common structure, which limited not only interest rates but contained other regulatory oversight. By the 1950s, many commentators were declaring the problem of predatory lending over because of this regulation, which had placed reasonable limits on the small loan industry.
According to Mayer’s analysis, violent loan sharks historically did not simply pop up wherever strict regulations were enacted. They were limited to certain geographic areas, which tend to be large metropolitan areas like New York, Chicago, and Philadelphia. This suggests that mob-tied loan sharks exist only where organized crime is prevalent, which makes logical sense. It seems unlikely that criminals are in the business of monitoring legislation to pick and choose where they will operate as illegal lenders. Moreover, loan sharks did not come about right after regulation; it took a relatively long time. For instance, Illinois passed a regulatory law in 1917, yet there is no historical evidence of loan sharks being active there prior to World War Two.
Moreover, loan sharks do not target people living paycheck-to-paycheck because the loan sharks do not want to be forced to violently enforce the loan agreement; no one wins when the lender does not get his money back. They are careful to only loan money to those who are likely to pay them back in a short period of time. Payday lenders, on the other hand, cater to the working class who sometimes require cash to tide them over until their next payday. The markets for loan sharks and payday lenders are entirely different, so a rise or fall in one will not necessarily affect the other.
Nevertheless, the “violent” loan shark business and the payday loan business share a common business model. Both are more interested in keeping borrowers in a cycle of debt and profiting from continued interest payments. Multiple studies of the payday loan industry document that repeat borrowing is the norm, and that the industry depends on repeat borrowing to make enough money to stay in business.
A number of states have never legalized the short term, small dollar loans commonly called payday loans, and several others who initially permitted payday lending have since imposed interest rate caps, or allowed enabling statutes to lapse. Yet, the industry has not put forth any credible evidence of an influx of violent, mob-tied loan sharks roaming the streets, filling a lending void in those states.
As Mayer notes, no specific evidence ties payday loan regulation to criminal lending because none exists. Modest regulation of the payday loan industry does not bring violent loan sharking to the forefront of the small loan industry. It does, however, save working class people money and helps prevent them from falling into a destructive debt cycle.
On December 10, Ohio legal aid advocates, represented by Julie Robie from the Legal Aid Society of Cleveland, participated in an oral argument before the Ohio Supreme Court in the case of Ohio Neighborhood Finance, dba Cashland v. Scott. What is notable about our participation is that legal aid did not represent any party involved in this case. Cashland had its stable of expensive big firm lawyers to brief and argue the case. Mr. Scott has long since gone on with his life, having made no appearances in any of the courts hearing his case. Legal Aid and our allies appeared as amici, or friends of the court, to give the Ohio Supreme Court the consumer perspective on the issues involved in this important case.
This case is important for consumers because it challenges the current business model of payday lending in Ohio. As some of you may know, in 2008, Ohio adopted a statute reforming payday lending, repealing the old business model that allowed short term, single pay loans with 391% APR. Ohio has never used the term “payday” loans in its statutes – when enabled in 1995, they were “loans by check cashing lender licensees.” These old loans were eliminated, and replaced with “short term loans.” The loan period for short term loans must be a minimum of 31 days, with a maximum APR of 28%.
Despite legislative reform, payday lending continues as usual for Ohio borrowers. No lenders are licensed under, or making loans under, the Short Term Loan Act. Instead, lenders like Cashland made deliberate business decisions to continue making payday loans, shoehorning into other lending licenses and making convoluted legal arguments to justify evasion of Ohio law. The Elyria Municipal Court and the 9th District Court of Appeals said Cashland cannot make payday loans under the lending license they currently hold. Now it is up to the Ohio Supreme Court to say “yes” or “no.”
But if the Ohio Supreme Court says no – no payday loans – what will this mean for Ohio borrowers? No more payday loans, at least in this current form? I wish. Unfortunately, the consumer small loan industry will continue to flourish. Even as we await the Cashland decision, cash-strapped Ohioans can get a short term consumer installment loan secured by a postdated check. Or they can stop in their friendly neighborhood auto title loan shop and walk out with a loan secured by the title to their car. And all of this and more can be done over the internet and without leaving the comfort and convenience of home. This market, “the financially underserved market”, generated $89 billion in fee and interest revenue in 2012. This industry is limited only by the ingenuity of its management teams, clever legal staff, and the greed of its funders and investors.
Under the veneer of industry best practices and superior customer service, the short term loan industry is making money selling credit to struggling families as a means to bridge the income gap. None of these financial products help struggling families address the underlying problems of chronic income shortfalls, or help families build wealth so they can move up the socio-economic ladder. Despite very credible studies showing that the economic activity generated by this industry results in a net loss to the economy, this industry will thrive until policymakers step up to the plate.
Stepping up to the plate doesn’t just mean better regulation of the industry and more consumer protections. Enforcement of existing consumer protection laws and the political will to stop predatory lending will always lag behind this constantly moving target. Stepping up to the plate means policy makers must address the much tougher issues involved in closing the income gap between low wages and what it really takes to make ends meet.
The political struggle to expand Medicaid, the Governor’s refusal to apply for a federal waiver to waive work requirements for food stamp recipients, the shrinking Ohio Works First program, continued high unemployment rates and Congress’s refusal to extend Emergency Unemployment Compensation all indicate that Ohioans will not soon see any real shift toward policies that support working families in the struggle to not just to make ends meet, but to make a better life for themselves and their children.
In the meantime, 46 Credit Services Organizations, 234 Ohio Mortgage Loan Registrants with 1202 Mortgage Loan registrant branch offices, 32 Small Loan Licensees with 171 Small Loan licensee branch offices, 150 licensed pawnbrokers with 178 branch store fronts (as of December 19) will be in our neighborhoods or at our fingertips to help us get the money we need. As long as we can afford their exorbitant fees and interest.
In response to the Consumer Financial Protection Bureau‘s recent request for comments on payday lending, Ohio legal aid advocates, led by OPLC attorney Linda Cook, recently teamed up to write and submit comments on the state of payday lending in Ohio.
Ohio advocates’ comments focused on Ohio’s failure to prevent payday lending, despite bipartisan legislation and a successful ballot initiative that were designed to prevent the practices in Ohio.
According to the legal aid group:
“Despite legislation and ratification by Ohio citizens, payday lending remains alive and well in Ohio. No lender holds a license under the Short Term Loan Act. Lenders engaging in the business of short term, small dollar loans have instead sought licensing under other provisions of the Ohio Revised Code that were on the books prior to the now-repealed 1995 legislation that opened the door to payday lending in Ohio.”
The group’s comments cite a recent report by Policy Matters Ohio, which found that “payday loans are similar to, if not worse than, before the legislative changes from 2008, because lenders are not operating under the new law. Stores are still selling high-cost, short-term, two-week loans.”
The legal aid advocates explain in their comments that Ohio’s experience with trying, and failing, to eliminate payday lending illustrates “the pervasiveness of both storefront and internet payday lending, and the entry of conventional banking into the short term, small dollar loan market….”