美国市场放贷（P2P）监管全貌2017（英文）-109页_7mb

The Regulation of Marketplace Lending: A Summary of the Principal Issues

Core Content

This document provides an overview of the key regulatory and legal issues affecting the marketplace lending industry, focusing on consumer lending. It outlines recent developments, including major court rulings and regulatory proposals, and highlights the implications for marketplace lenders and their business models.

Main Points and Key Information

1. Recent Developments

• Madden v. Midland Funding, LLC (2015):

  • The Second Circuit ruled that non-bank assignees of loans from national banks are not entitled to federal preemption of state usury laws.
  • The case was remanded to determine whether New York or Delaware law governed the loan agreement.
  • The decision raised significant concerns for marketplace lenders who rely on federal preemption to charge interest rates above state usury caps.
  • The Supreme Court declined to review the case, leaving the decision in effect for the Second Circuit states (Connecticut, New York, Vermont).

• "True Lender" Litigation:

  • Courts are increasingly scrutinizing whether third-party entities, such as marketplace lenders, are the true lenders in loan arrangements.
  • In the CashCall case (West Virginia and California), courts ruled that CashCall was the true lender, not the bank, and held it accountable for usury violations.
  • In the Utah case, the court supported the Funding Bank as the true lender, citing the Bank Service Company Act, which subjects service providers to the same regulatory scrutiny as the bank itself.

• OCC Special-Purpose Charter:

  • The Office of the Comptroller of the Currency (OCC) proposed a special-purpose charter for fintech companies, which would allow them to operate as national banks.
  • This proposal aims to ensure safety and soundness, promote consistent regulation, and strengthen the federal banking system.

• CFPB Oversight:

  • The Consumer Financial Protection Bureau (CFPB) expanded its oversight of small business lending and is actively involved in enforcement actions, such as the PHH Case, which questioned the constitutionality of the CFPB's structure.
  • The CFPB's authority over arbitration and unfair debt collection practices is also under review.

• TCPA and Standing Rulings:

  • The Supreme Court's Spokeo decision expanded the definition of standing, potentially affecting how consumers can assert claims against marketplace lenders.
  • This could increase the number of lawsuits and the ability of plaintiffs to pursue claims without direct harm.

• State-Level Developments:

  • Many states have implemented licensing requirements for marketplace lenders, adding another layer of regulatory complexity.
  • Some states have taken a more aggressive stance against usury violations, impacting the ability of marketplace lenders to operate.

• Compliance and Risk Management:

  • Regulatory compliance remains a significant challenge and cost for marketplace lenders.
  • Failure to comply can lead to civil or criminal penalties, litigation, and reputational damage.
  • The use of Funding Banks is a common practice, but it has been challenged in litigation, with courts often determining that the Funding Bank, not the marketplace lender, is the true lender.

2. Regulatory Issues

• Securities Laws:

  • Marketplace loans may be classified as securities under federal and state laws, which could subject them to additional regulation.
  • The Securities Act, Regulation A+, Blue Sky Laws, and Securitization rules all play a role in determining the legal status of marketplace loans.

• Lending Laws and Lender Registration:

  • Usury Laws vary by state and can limit the interest rates that marketplace lenders can charge.
  • The Third-Party Use of Bank Charters is a contentious area, particularly for non-bank entities that purchase loans from banks.
  • State Licensing Requirements are a key consideration for marketplace lenders seeking to operate legally.

• Consumer Protection Laws:

  • The Truth in Lending Act (TILA), FTC Act, and CFPB's UDAAP authority require marketplace lenders to disclose loan terms and avoid deceptive practices.
  • Fair Lending and Debt Collection Practices are also under scrutiny, with courts enforcing compliance with these laws.

• Bankruptcy Considerations:

  • Security Interests in Electronic Collateral are important in the event of borrower default.
  • Insolvency risk is a concern for both lenders and investors.

• Tax Considerations:

  • The tax treatment of platform notes and direct investments by non-U.S. persons are relevant to the financial structure of marketplace lending.

• Crowdfunding Rules:

  • Crowdfunding platforms must comply with Regulation Crowdfunding and other rules to ensure transparency and investor protection.

3. Implications and Recommendations

• Uncertainty in Legal Framework:

  • The Madden decision and true lender litigation have created uncertainty in the marketplace lending industry, particularly regarding the enforceability of interest rates and the legal status of Funding Banks.

• Arbitration and Class Actions:

  • The LendingClub arbitration case highlights the potential for class actions and the importance of arbitration clauses in consumer loan agreements.
  • Courts may be more inclined to enforce arbitration agreements, which could reduce the impact of adverse rulings.

• Need for Legal Counsel:

  • Marketplace lenders should consult with experienced legal counsel to navigate the complex regulatory landscape and ensure compliance.
  • Careful structuring of arrangements with Funding Banks is essential to avoid being deemed the "true lender" and facing legal consequences.

• Future Regulatory Outlook:

  • The OCC's proposal for a special-purpose charter indicates a growing interest in regulating fintech companies.
  • The CFPB and other agencies are likely to continue expanding their oversight of the industry.

Conclusion

Marketplace lending operates in a complex regulatory environment, with significant implications for both lenders and investors. The legal challenges surrounding federal preemption, true lender claims, and state usury laws have created uncertainty, while the OCC's regulatory proposal and CFPB oversight signal a potential shift in the legal and supervisory landscape. As the industry continues to evolve, compliance and careful legal structuring will be critical to its success and sustainability.