By:  Carona                                            S.B. No. 471
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to deferred deposit loans.
 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-4           SECTION 1.  Chapter 342, Finance Code, is amended by adding
 1-5     Subchapter M to read as follows:
 1-6                    SUBCHAPTER M.  DEFERRED DEPOSIT LOANS
 1-7           Sec. 342.601.  DEFINITIONS.  In this subchapter:
 1-8                 (1)  "Deferred deposit loan" means a transaction in
 1-9     which a lender makes a cash advance to a borrower and, for a fee,
1-10     finance charge, or other consideration:
1-11                       (A)  accepts a dated instrument from the
1-12     borrower;
1-13                       (B)  agrees to hold the instrument for a stated
1-14     period before negotiation, deposit, or presentation of the
1-15     instrument for payment; and
1-16                       (C)  pays to the borrower, credits to the
1-17     borrower's account, or pays to another person on the borrower's
1-18     behalf the amount of the instrument, less finance charges permitted
1-19     by Section 342.604.
1-20                 (2)  "Instrument" means a personal check or
1-21     authorization to transfer or withdraw funds from an account of a
1-22     borrower made payable to a person subject to this subchapter.
1-23                 (3)  "Lender" means an authorized lender.
1-24                 (4)  "Renewal" means a transaction in which a borrower
1-25     pays in cash the finance charge payable under a deferred deposit
 2-1     loan and refinances all or part of the loan amount of the deferred
 2-2     deposit loan with a new deferred deposit loan.
 2-3                 (5)  "Third-party provider" means a person who
 2-4     transacts or negotiates deferred deposit loans by providing
 2-5     services in cooperation with and for the benefit of a lender.
 2-6           Sec. 342.602.  WRITTEN AGREEMENT REQUIREMENTS.  Each deferred
 2-7     deposit loan transaction and renewal shall be documented by a
 2-8     written agreement.  The written agreement must:
 2-9                 (1)  state the name of the borrower, the transaction
2-10     date, the amount of the instrument, and the total amount of finance
2-11     charges, expressed both as a dollar amount and as an annual
2-12     percentage rate;
2-13                 (2)  include all disclosures required by Section
2-14     342.603; and
2-15                 (3)  set a date, not later than the 31st day after the
2-16     loan transaction date, on which the instrument may be deposited,
2-17     negotiated, or presented for payment.
2-18           Sec. 342.603.  NOTICE TO CONSUMERS.   A lender shall provide
2-19     the following notice in a prominent place on each deferred deposit
2-20     loan agreement in at least 10-point type that is bold-faced,
2-21     capitalized, underlined, or otherwise conspicuously set out from
2-22     the surrounding written material:
2-23               "A deferred deposit loan is not intended to
2-24               meet long-term financial needs.  This loan
2-25               should be used only to meet short-term cash
2-26               needs.  Renewing the loan rather than paying
 3-1               the debt in full when due will incur additional
 3-2               finance charges."
 3-3           Sec. 342.604.  AUTHORIZED FINANCE CHARGE.  A lender may
 3-4     charge a finance charge not to exceed the finance charge authorized
 3-5     in Subchapter F.
 3-6           Sec. 342.605.  MAXIMUM CASH ADVANCE-RIGHT TO RESCIND.  (a)  A
 3-7     lender may not advance to a borrower an amount greater than $500.
 3-8           (b)  A borrower has the right to rescind the deferred deposit
 3-9     loan not later than 5 p.m. on the next business day after the loan
3-10     transaction date.
3-11           (c)  This chapter does not prohibit a lender from being a
3-12     party, with the same borrower at the same time, to a deferred
3-13     deposit loan and a loan authorized by this chapter other than a
3-14     deferred deposit loan.
3-15           Sec. 342.606.  MINIMUM AND MAXIMUM TERM.  A lender may not
3-16     engage in a deferred deposit loan with a term of less than seven or
3-17     more than 31 days.
3-18           Sec. 342.607.  MAXIMUM OUTSTANDING TRANSACTIONS NOTICE.  A
3-19     lender shall provide the following notice in a prominent place on
3-20     each deferred deposit loan agreement in at least 10-point type that
3-21     is bold-faced, capitalized, underlined, or otherwise conspicuously
3-22     set out from the surrounding written material:
3-23               "State law prohibits lenders from making
3-24               deferred deposit loans exceeding $500
3-25               outstanding to a debtor at any one time.
3-26               Exceeding this amount may create financial
 4-1               hardships for you and your family.  You have
 4-2               the right to rescind this deferred deposit loan
 4-3               not later than 5 p.m. the next business day
 4-4               following this transaction."
 4-5           Sec. 342.608.  RENEWAL.  (a)  A deferred deposit loan
 4-6     agreement must require that, before renewal of the loan, the
 4-7     borrower must have paid all finance charges accrued to the time of
 4-8     the renewal plus an amount equal to at least 10 percent of the
 4-9     principal amount of the loan at the time the loan was made, in the
4-10     case of the first renewal, or at the time of the preceding renewal,
4-11     in the case of a subsequent renewal.  The loan may be renewed
4-12     without payment of 10 percent of the applicable principal amount if
4-13     the finance charge on renewal is computed only on the principal
4-14     amount of the loan that would have remained unpaid if the borrower
4-15     had paid 10 percent of the applicable principal amount.  A deferred
4-16     deposit loan may not be renewed more than three consecutive times.
4-17     After the last renewal, the borrower shall pay the debt in cash or
4-18     its equivalent.  If the borrower does not pay the debt, the lender
4-19     may deposit, negotiate, or otherwise present for payment the
4-20     borrower's instrument.
4-21           (b)  On renewal of a deferred deposit loan, the lender may
4-22     assess additional finance charges not to exceed $15 for every $100
4-23     advanced as authorized under Section 342.604.  A lender may also
4-24     charge a pro rata finance charge for any incremental amount
4-25     advanced in excess of a multiple of $100.
4-26           (c)  A transaction is completed when the lender presents the
 5-1     instrument for payment or initiates an Automated Clearing House
 5-2     (ACH) debit to the borrower's bank account to collect on the
 5-3     instrument or when the borrower redeems the instrument by paying
 5-4     the full amount of the instrument to the holder.  The next business
 5-5     day after the borrower has completed the deferred deposit loan
 5-6     transaction, the lender may enter into a new deferred deposit loan
 5-7     agreement with the borrower and the new transaction is not
 5-8     considered a renewal of the previous transaction.
 5-9           (d)  A lender may refinance a deferred deposit loan without
5-10     limitation as to the number of refinancings as authorized by
5-11     Subchapter F.
5-12           Sec. 342.609.  FORM OF LOAN PROCEEDS.  A lender may pay the
5-13     proceeds from a deferred deposit loan to the borrower in the form
5-14     of a business instrument, a money order, or cash.  The lender or
5-15     the lender's third-party provider may not charge an additional
5-16     finance charge or fee for cashing the lender's business instrument.
5-17           Sec. 342.610.  ENDORSEMENT OF INSTRUMENT.  A lender may not
5-18     negotiate or present an instrument for payment unless the
5-19     instrument is endorsed with the actual business name of the lender.
5-20           Sec. 342.611.  REDEMPTION OF INSTRUMENT.  Before the lender
5-21     negotiates or presents the instrument, the borrower has the right
5-22     to redeem any instrument held by the lender as a result of a
5-23     deferred deposit loan if the borrower pays the full amount of the
5-24     instrument to the lender.
5-25           Sec. 342.612.  AUTHORIZED DISHONORED INSTRUMENT CHARGE.  If
5-26     an instrument held by a lender as a result of a deferred deposit
 6-1     loan is returned to the lender from a payor financial institution
 6-2     due to insufficient funds, a closed account, or a stop-payment
 6-3     order, the lender has the right to exercise all civil means
 6-4     authorized by law to collect the face value of the instrument.  In
 6-5     addition, the lender may contract for and collect fees authorized
 6-6     by Section 342.502.  The lender may not collect any other fees as a
 6-7     result of default.  A returned instrument charge may not be
 6-8     collected if the loan proceeds instrument is dishonored by the
 6-9     financial institution or if the borrower places a stop-payment
6-10     order due to forgery or theft.
6-11           Sec. 342.613.  POSTING OF CHARGES.  A lender offering a
6-12     deferred deposit loan shall post at any place of business where
6-13     deferred deposit loans are made a notice of the charges imposed for
6-14     the deferred deposit loans.
6-15           Sec. 342.614.  NOTICE ON ASSIGNMENT OR SALE OF INSTRUMENTS.
6-16     Before the sale or assignment of instruments held by a lender as a
6-17     result of a deferred deposit loan, the lender shall place a notice
6-18     on the instrument in at least 10-point type that is bold-faced,
6-19     capitalized, underlined, or otherwise conspicuously set out from
6-20     the surrounding written material to read:
6-21               "This is a deferred deposit loan instrument."
6-22           Sec. 342.615.  RECORDS AND ANNUAL REPORTS.  A lender shall
6-23     maintain records and file an annual report in accordance with
6-24     Sections 342.558 and 342.559.
6-25           Sec. 342.616.  AUTHORITY TO CONDUCT DEFERRED DEPOSIT LOAN
6-26     BUSINESS.  Only an authorized lender may lawfully engage in the
 7-1     deferred deposit loan business.  A licensed lender shall obtain and
 7-2     maintain a separate license for each location where deferred
 7-3     deposit loan business is conducted.  A deferred deposit loan is a
 7-4     loan subject to this chapter for purposes of the application of
 7-5     Section 342.051.
 7-6           Sec. 342.617.  APPLICATION OF SUBCHAPTER TO THIRD-PARTY
 7-7     PROVIDER.  If deferred deposit loans are offered at the place of
 7-8     business of a third-party provider:
 7-9                 (1)  the third-party provider shall provide to the
7-10     commissioner a sample copy of the form of a written deferred
7-11     deposit loan agreement if the third-party provider participates in
7-12     the preparation, execution, delivery, or custody of the agreement,
7-13     and each time the form is modified the third-party provider shall
7-14     provide to the commissioner a copy of the modified form;
7-15                 (2)  the notice under Section 342.613 shall be posted
7-16     in the third-party provider's place of business;
7-17                 (3)  the third-party provider shall, through a
7-18     combination of the language in the written agreement required under
7-19     Section 342.602, the notice to be posted under Subdivision (2), or
7-20     other signs, notices, or information materials, make available to
7-21     loan applicants the name, address, and telephone number of the
7-22     lender making the deferred deposit loans; and
7-23                 (4)  the third-party provider shall comply with the
7-24     licensing provisions of this chapter.
7-25           Sec. 342.618.  EXAMINATION AND INVESTIGATION.  (a)  A
7-26     licensed lender may be examined and investigated in accordance with
 8-1     Section 342.552.
 8-2           (b)  The commissioner or the commissioner's representative
 8-3     may, at the times the commissioner considers necessary, examine and
 8-4     investigate a third-party provider's place of business to determine
 8-5     the provider's compliance with this subchapter.  The third-party
 8-6     provider shall give the commissioner or the commissioner's
 8-7     representative free access to its place of business for that
 8-8     purpose. During an examination, the commissioner or the
 8-9     commissioner's representative may administer oaths and examine any
8-10     person under oath on any subject pertinent to a matter that the
8-11     commissioner is authorized to consider, investigate, or secure
8-12     information about under this subchapter.  A third-party provider
8-13     shall pay to the commissioner an amount assessed by the
8-14     commissioner to cover the direct and indirect cost of an
8-15     examination of the provider under this section.
8-16           Sec. 342.619.  APPLICABILITY TO LENDER.  Except as preempted
8-17     by federal law, all other applicable provisions of this subchapter
8-18     apply to a deferred deposit loan and a lender.
8-19           Sec. 342.620.  APPLICABILITY OF PROVISIONS OF CHAPTER 341 AND
8-20     THIS CHAPTER.  Chapter 341 and the other provisions of this chapter
8-21     apply to a lender unless those provisions are inconsistent with
8-22     this subchapter.
8-23           Sec. 342.621.  CRIMINAL CULPABILITY.  A borrower is not
8-24     subject to a criminal penalty for entering into a deferred deposit
8-25     loan agreement or in the event the instrument is dishonored, unless
8-26     the borrower violated Section 32.32, Penal Code.
 9-1           Sec. 342.622.  DECEPTIVE TRADE PRACTICE.  A deferred deposit
 9-2     loan made by a person other than a lender is a deceptive trade
 9-3     practice actionable under Subchapter E, Chapter 17, Business &
 9-4     Commerce Code.
 9-5           Sec. 342.623.  CONSIDERATION OF BORROWER'S ABILITY TO PAY.
 9-6     When making or negotiating a deferred deposit loan, the lender
 9-7     shall consider, in determining the size, duration, and schedule of
 9-8     installments of the loan, the financial ability of the borrower to
 9-9     repay the loan, and specifically evaluate whether the borrower will
9-10     be reasonably able to pay the loan in cash at the time and in the
9-11     manner provided in the deferred deposit loan agreement.
9-12           SECTION 2.  This Act takes effect September 1, 2001, and
9-13     applies only to acts or omissions occurring on or after that date.