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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1846 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 1846

 To amend the Truth in Lending Act to establish additional payday loan 
 disclosure requirements and preempt certain State laws, and for other 
                               purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             April 1, 2009

Mr. Baca (for himself and Mrs. Schmidt) introduced the following bill; 
       which was referred to the Committee on Financial Services

_______________________________________________________________________

                                 A BILL

 
 To amend the Truth in Lending Act to establish additional payday loan 
 disclosure requirements and preempt certain State laws, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Consumer Lending Education And 
Reform Act'' and the ``C.L.E.A.R. Act''.

SEC. 2. PROTECTIONS FOR CONSUMERS.

    (a) In General.--Chapter 2 of the Truth in Lending Act (15 U.S.C. 
1631 et seq.) is amended by inserting after section 129A the following 
new section:
``Sec. 129B Protections for consumers
    ``(a) Definitions.--For purposes of this section, the following 
definitions shall apply:
            ``(1) Affiliate.--The term `affiliate' has the same meaning 
        as in section 129(k).
            ``(2) Electronic signature.--The term `electronic 
        signature' means a signatures in digital or other electronic 
        form that meets the validity requirements of the Electronic 
        Signatures in Global and National Commerce Act.
            ``(3)  Extended payment plan.--The term `extended payment 
        plan' means an amendment to the payday loan that is signed in 
        person or electronically by both the consumer and the creditor 
        reflecting an agreement that the consumer pay the outstanding 
        balance on a payday loan in 4 equal payments, where the period 
        between each payment may not be less than the duration of the 
        original payday loan.
            ``(4) Home state.--
                    ``(A) In general.--The term `home State' means, 
                with respect to any creditor or any affiliate of a 
                creditor, the State in which the primary home office of 
                the creditor or any affiliate of the creditor is 
                located.
                    ``(B) Home office.--The term `home office' means 
                the office that houses a majority of the applicable 
                party's day-to-day management and administrative 
                support functions.
            ``(5) Interest and fees.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), the term `interest and fees' includes 
                any charge payable directly or indirectly by the 
                consumer and imposed directly or indirectly by the 
                creditor as an incident to or a condition of the 
                extension of credit.
                    ``(B) Charges not included.--The term `interest and 
                fees' does not include--
                            ``(i) any charge for a default, 
                        delinquency, or similar occurrence; or
                            ``(ii) any charge imposed when, if for any 
                        reason, funds are not made available to pay an 
                        item or authorization delivered to the creditor 
                        in the manner described in subparagraph (A) or 
                        (B) of paragraph (1) to the extent that--
                                    ``(I) the charge does not exceed 
                                the greater of $25 or the amount 
                                charged to the creditor by the 
                                creditor's financial institution; and
                                    ``(II) the charge is only imposed 
                                once per each item or authorization 
                                regardless of whether the item or 
                                authorization is presented for payment 
                                more than once.
            ``(6) Loan store.--The term `loan store' means each 
        location operated by a creditor at which applications for 
        payday loans are received or the proceeds of payday loans are 
        disbursed.
            ``(7) Payday loan; loan.--The terms `payday loan' and 
        `loan' mean a closed-end credit transaction, evidenced by a 
        loan agreement signed by the creditor and the consumer, in 
        person or electronically, unsecured by any interest in the 
        consumer's tangible personal property with a term of at least 7 
        and not more than 90 days in which the amount financed does not 
        exceed $2,000 with a finance charge exceeding an annual 
        percentage rate of 36 percent, and the consumer--
                    ``(A) receives funds from and incurs interest or a 
                fee payable to a creditor, and contemporaneously with 
                the receipt of funds, provides a check or other payment 
                instrument to the creditor who agrees with the consumer 
                not to deposit or present the check or payment 
                instrument for more than 1 day; or
                    ``(B) receives funds from and incurs interest or a 
                fee payable to a creditor, and contemporaneously with 
                the receipt of funds, authorized the creditor to 
                initiate a debt or debits to the consumer's deposit 
                account (by electronic fund transfer or remotely 
                created check) after 1 or more days.
            ``(8) Payday lender.--The term `payday lender' means any 
        creditor with respect to a payday loan.
            ``(9) Refinancing.--The term `refinancing' means the use of 
        the proceeds of 1 payday loan obtained from a creditor to pay 
        off any amount due to that creditor.
    ``(b) Protections for Consumers.--
            ``(1) Interest and fee cap.--A payday lender may not--
                    ``(A) require a consumer to pay--
                            ``(i) in the case of any original payday 
                        loan, interest and other fees and charges that 
                        total more than 15 cents for every dollar 
                        loaned; and
                            ``(ii) in the case of an original payday 
                        loan originated over the Internet, an 
                        additional origination fee in excess of 5 
                        percent of the original principal loan amount;
                    ``(B) require a consumer to pay interest and fees 
                that, combined, total more than--
                            ``(i) in the case of the 1st refinancing of 
                        an outstanding payday loan, 15 cents for every 
                        dollar of the outstanding original principal 
                        loan amount; and
                            ``(ii) in the case of the 2nd refinancing 
                        of an outstanding payday loan, 10 cents for 
                        every dollar of the outstanding original 
                        principal loan amount; or
                    ``(C) require a consumer to pay an origination fee 
                for a payday loan that is refinanced.
            ``(2) Mandatory disclosures.--A payday lender may not make 
        or refinance a payday loan unless the creditor has first 
        provided the consumer with a copy of a written loan agreement, 
        which shall be signed by the creditor and by the consumer and 
        shall include the following information in English and in the 
        language in which the loan was negotiated:
                    ``(A) A clear and conspicuous description of the 
                terms of the loan, including the total cost of all fees 
                and other charges in connection with the loan stated as 
                a dollar amount, and the consumer's payment obligations 
                under the loan.
                    ``(B) The name, address and telephone number of the 
                creditor making the loan, and the name of title of the 
                individual employee of the creditor who signs the loan 
                agreement on behalf of the creditor.
                    ``(C) The following statements, in at least 14-
                point bold face type:
                            ``(i) Warning.--This loan is not intended 
                        to meet long-term financial needs. This loan 
                        should be used only to meet short-term cash 
                        needs.
                            ``(ii) Credit counseling availability.--You 
                        should consider contacting an independent, 
                        nonprofit credit counseling agency approved by 
                        the National Foundation for Credit Counseling 
                        (NFCC) or by a State or Federal Government 
                        agency. You may obtain information on how to 
                        contact an approved counselor near you by 
                        calling the National Foundation for Credit 
                        Counseling at 1-800-388-2227.
                            ``(iii) No criminal prosecution or security 
                        interest.--You cannot be prosecuted in criminal 
                        court to collect this loan, and the creditor 
                        may not take or attempt to take an interest in 
                        any of your personal property to secure his 
                        loan.
            ``(3) Additional public disclosures.--A payday lender may 
        not make or refinance a payday loan to any consumer unless the 
        following notices are posted conspicuously in English and 
        Spanish and in not less than 1-inch bold print in the 
        creditor's public lending area in each loan store, or, if the 
        loan is made using the Internet, fax or other means, are posted 
        conspicuously on the creditor's public internet site relating 
        to any such payday loan:
                    ``(A) Warning.--This loan is not intended to meet 
                long-term financial needs. This loan should be used 
                only to meet short-term cash needs.
                    ``(B) Credit counseling availability.--You should 
                consider contacting an independent, nonprofit credit 
                counseling agency approved by the National Foundation 
                for Credit Counseling (NFCC) or by a State or Federal 
                Government agency. You may obtain information on how to 
                contact an approved counselor near you by calling the 
                National Foundation for Credit Counseling at 1-800-388-
                2227.
                    ``(C) No criminal prosecution or security 
                interest.--You cannot be prosecuted in criminal court 
                to collect this loan, and the creditor may not take or 
                attempt to take an interest in any of your personal 
                property to secure his loan.
            ``(4) Creditor surety bond requirements.--
                    ``(A) In general.--A payday lender may not make or 
                refinance a payday loan unless the creditor has 
                obtained and filed, in accordance with subparagraph 
                (B), a surety bond in the following amount:
                            ``(i) A surety bond in the amount of 
                        $100,000 for each loan store operated by the 
                        creditor, if the creditor operates fewer than 
                        10 loan stores and does not offer any payday 
                        loans over the Internet.
                            ``(ii) A surety bond in the amount of 
                        $1,000,000, if the creditor operates 10 or more 
                        loan stores or offers loans over the Internet.
                            ``(iii) Such greater amount as may be 
                        required by applicable State law.
                    ``(B) Bond requirements.--The surety bond obtained 
                by a payday lender to meet the requirements of 
                subparagraph (A) shall be filed with, and for the 
                benefit of, the State attorney general in the 
                creditor's home state.
                    ``(C) Aggregation of lender and affiliate under 
                certain circumstances.--For purposes of this paragraph, 
                a creditor and each affiliate of a creditor which has 
                the same home State as the creditor may aggregate the 
                loan stores operated by such creditor and any such 
                affiliate for purposes of determining the amount of the 
                surety bond required to be filed under subparagraph 
                (A).
            ``(5) Extended payment plan.--
                    ``(A) In general.--A payday lender may not make or 
                refinance a payday loan unless the terms of the loan 
                require the creditor, upon receiving notice from the 
                consumer of an inability to repay prior to close of 
                business on the last business day before the original 
                due date of the loan, provides the consumer with notice 
                of and the right to opt into an extended payment plan, 
                without charge, 1 time in any 12 month period.
                    ``(B) Limitation during extended payment plan.--A 
                creditor may not engage in any collection activity (or 
                procure the services of any other for such purpose) 
                during the term of any extended payment plan.
            ``(6) Refinancing.--A payday lender may not--
                    ``(A) refinance a payday loan for less than 7 days;
                    ``(B) refinance a payday loan more than 2 
                consecutive times; refinance a payday loan without 
                terminating the previous agreement and entering into a 
                new agreement that the creditor and consumer each sign 
                in person or with an electronic signature; or
                    ``(C) require a consumer to pay interest and fees 
                in connection with a refinancing that, combined, total 
                more than the amount permitted under paragraph 
                (1)(B).''.
    (b) Technical and Conforming Amendments.--
            (1) Disclosures.--Section 128(a)(4) of the Truth in Lending 
        Act (U.S.C. 1638(a)(4)) is amended--
                    (A) by striking ``or'' after ``does not exceed 
                $5,'' and
                    (B) by inserting ``, or if the loan is subject to 
                section 129B''.
            (2) Effect on other laws.--Section 111 of the Truth in 
        Lending Act (U.S.C. 1610) is amended--
                    (A) in subsection (b), by inserting ``subsection 
                (f) of this section and'' after ``Except as provided 
                in''; and
                    (B) by adding at the end the following new 
                subsection:
    ``(f) Payday Loans.--
            ``(1) In general.--The following provisions of the law of 
        any State shall not apply to any payday loan, or any 
        refinancing of a payday loan, that is subject to section 129B:
                    ``(A) Any provision requiring minimum loan terms.
                    ``(B) Any provision prohibiting, defining or 
                limiting any refinancing.
                    ``(C) Any provision prohibiting or limiting the use 
                of a check or debit authorization to originate a payday 
                loan.
                    ``(D) Any provision prohibiting or mandating 
                extended payment plans.
                    ``(E) Any provision limiting the rate or amount of 
                interest and fees or default, delinquency or not 
                sufficient fund fees or other charges which may be 
                taken, received or reserved by creditors for payday 
                loans or any refinancing of a payday loan.
            ``(2) Enforcement.--Notwithstanding paragraph (1), any 
        State may employ or establish State laws for the purpose of 
        enforcing the requirements of section 129B.''.
    (c) Clerical Amendment.--The table of sections for chapter 2 of the 
Truth in Lending Act is amended by inserting after the item relating to 
section 129 the following new items:

``129A. Fiduciary duty of servicers of pooled residential mortgages.
``129B. Protections for consumers.''.
                                 <all>
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