Washington Update by Frank Salinger Vice President, Government Relations Advanta Corporation

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1 Washington Update by Frank Salinger Vice President, Government Relations Advanta Corporation Considering this column is going to press the week Congress returns from the July 4 th recess (or, for those of you not focused on the congressional calendar, Major League Baseball s All-Star break), it seems to be a good time to review what has been accomplished in the area of consumer financial services-related legislation so far this year. While most legislation that interests readers comes out of the House Financial Services or Senate Banking Committees (think of them as the American and National Leagues to run the baseball analogy into the ground), this year, the most significant legislative accomplishment comes from the fractious world of the judiciary committees: bankruptcy reform. Here is a review of the key issues: Bankruptcy Reform. After an eight year legislative struggle, President Bush signed S. 256, the Bankruptcy Abuse & Consumer Protection Act. The centerpiece of the legislation -- and the most controversial provision -- establishes an objective needs-based bankruptcy test for determining whether a consumer debtor is eligible for Chapter 7 relief. The Act also makes a number of substantive changes to consumer credit disclosures. These include: New disclosures of minimum payments; introductory rates; late payment deadlines; penalties for open-end lines of credit; and the tax consequences of certain home equity loans. Additional information about minimum payments must be available via a toll-free telephone number. Requiring internet-based credit card solicitations to include specified Truth in Lending Act disclosures. Prohibiting closing an open-end consumer loan account solely because the borrower has not incurred finance charges. The Act also requires the Federal Reserve to conduct studies regarding information available to potential borrowers from consumer lenders regarding factors qualifying borrowers for credit, repayment requirements, and the consequences of default; the adequacy of consumer protections to limit liability from unauthorized use of a debit card; and the impact of credit extended to dependent college students. The politics around passage of this bill has led to a hearing on credit card marketing practices. Arguably, this is the price paid for a number of senators dropping proposed amendments.

2 Credit Card Hearings. On May 17th, the Senate Banking Committee held a hearing on credit card pricing, disclosures and other practices. Although not called to address specific legislative proposals, a wide range of issuer practices were sharply criticized by consumer advocates and some senators. These include: Authorization of credit putting customers over their limit Debit card fee disclosures Foreign currency conversion charges Introductory rate teaser disclosures Length of grace periods Minimum payment disclosures Negative amortization of credit card payments Payment cut-off times (credit for timely payment) Risk-based pricing Marketing to students and other minors Although the hearing was an oversight hearing, Senators Akaka (D-HI) and Feinstein (D- CA) testified in support of bills they had previously introduced to restrict many of these practices. Senator Dodd (D-CT) has introduced a more comprehensive bill, S. 499, the Credit Card Accountability Responsibility and Disclosure (CARD) Act, which would limit a number of these practices. Currently, no action has been scheduled on these bills. Several senators asked the agency witnesses, Federal Reserve Board Governor Gramlich and OCC General Counsel Julie Williams, if the banking agencies had both sufficient authority to deal with credit card issues and reliable information about rates and industry practices. Williams recommended that the OCC be given the additional authority to define unfair and deceptive practices, which is authority currently reserved to the FTC. Ms. Williams testimony also emphasized the OCC s efforts to test the effectiveness of disclosures via focus groups of actual consumers. A number of the witnesses (and some senators) suggested that consumer disclosures should eventually be more like the nutritional labels found on food products (i.e. easy to understand and following a clear format). Credit card issues are not merely within the relevant financial committees. For example, universal default provisions became the subject of a House Appropriations Committee vote which approved an amendment to prohibit card issuers from using negative information in a customer s credit report to raise rates unless the information involves the customer s card account. As you can guess from its name, the Appropriations Committee funds federal agencies including, in this instance, the Department of the Treasury. Appropriations strategies (the legislative equivalent of a Hail Mary) are not that unusual. The amendment was stricken

3 on the floor of the House for procedural reasons (appropriations bills are generally not supposed to include substantive legislative proposals). Another issue, presently in the courts, is that of interchange fees which are paid by merchant-acquiring banks to cardholder-issuing banks to cover the cost to convert a charge on a cardholder s card to a cash deposit at the merchant s checking account. It also defrays costs such as billing services, credit and fraud risk, and profits. Interchange may become a legislative issue if retail trade associations (the litigants against card associations) are able to get oversight hearings in either the judiciary committees, the House Financial Services, or Senate Banking Committees. These are not the only credit card-related issues. Many other, more generic issues, such as data security and the accuracy of credit reporting agency data (and the accuracy of reinvestigations of such data) impact consumer credit as well. Data Security. The recent data breach of credit card accounts at CardSystems Solutions, a payment processor, is another example of continuing well-publicized events leading Congress toward legislation in this area. There are a number of bills in various stages of the drafting process taking different approaches to deal with data breaches. The inherent problem drafters face is devising a framework that deals with institutions and processors already regulated (by laws ranging from the FACT Act to Gramm-Leach- Bliley) while also addressing concerns about unregulated data warehouses and processors. This dichotomy is also reflected by the differences in Congressional committee jurisdiction. Thus, whatever may finally emerge from the banking-related committees will differ from the work product of the judiciary committees. Because this area is still fluid, the next edition of this column will spell out proposals in more detail. High Cost Mortgage Predatory Lending. The House Financial Institutions and Housing Subcommittees held a hearing on May 24 th regarding two bills designed to curb predatory mortgage lending practices. One bill, H.R. 1295, the Responsible Lending Act, sponsored by Representatives Ney (R-OH) and Kanjorski (D-PA) is generally supported by industry; the other, H.R. 1182, the Prohibit Predatory Lending Act, sponsored by Representatives Miller (D-NC) and Watt (D-NC) has the support of consumer advocates. The bills are very different, the former provides for a federal preemptive regulatory scheme, while the latter relies on state and local laws. The mark-up process (the mechanism wherein a committee considers amendments and prepares a bill for eventual passage) may begin before the August recess, but is more likely to occur after Labor Day. The Senate has not yet acted.

4 Pay-day Lending. Although regulated by state laws, pay-day loans (called cash advance or salary advance loans by that industry) have become the subject of growing interest on Capitol Hill, particularly, since FDIC-insured institutions have exported rates into states with restrictive laws. [For a detailed outline about the regulation of this industry, see Richard Eckman s article, Is Pay-day Lending Paving the Preemption Path?, in the last edition of this newsletter] While a number of bills have been introduced in both Houses without any action, legislation to restrict pay-day loans to military personnel has moved forward. On June 28, 2005, the House passed H.R. 458, the Military Personnel Financial Services Protection Act which, although principally drafted to ban the sale of contractual mutual funds on military bases, also restricts pay-day loans to military personnel. The bill bans requiring the involuntary assignment of military wages to secure payment of a loan; contacting, or threatening to contact the borrower s commanding officer in an effort to collect a loan; and, requiring the borrower to waive their rights under the Servicemembers Civil Relief Act. Additionally, certain high cost loans must be accompanied by a disclosure notice outlining these protections as well as describing other credit options including grants or interest free loans from the military relief societies in the case of a family or other emergency. A similar bill (which only dealt with contractual mutual funds and did not address payday lending) passed the House in the last Congress but failed to move in the Senate. Other Legislative Issues. While not directly related to consumer credit, both the House Financial Services Committee and the Senate Banking Committee have held hearings and passed legislation on a wide variety of issues ranging from GSE reform to USA PATRIOT Act reauthorization to regulatory relief. Oversight Issues. Although not necessarily leading to legislation, the Congressional oversight function should not be minimized. For those seeking insight into future legislative trends and to see what industry and consumer advocates alike view as top priorities, reviewing testimony is a valuable source. That testimony is available on-line at the committee s web site. In addition to the issues discussed above, some consumer credit-related issues which have also been the subject of hearings include: Access to credit for underserved consumers Identity theft Promoting competition in the real estate services market Securities arbitration Zero down payment loans * * *

5 This periodic enewsletter is designed to give a broad overview of consumer credit-related issues. More detailed information may be found on the web sites of the House Financial Services and Senate Banking Committees. Most of the national financial trade associations and consumer advocacy organizations have comprehensive, although naturally specialized, reporting on their web sites and many provide much of their non-confidential content to the non-member browser.

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