[Senate Hearing 109-1081] [From the U.S. Government Publishing Office] S. Hrg. 109-1081 A REVIEW OF THE DEPARTMENT OF DEFENSE'S REPORT ON PREDATORY LENDING PRACTICES DIRECTED AT MEMBERS OF THE ARMED FORCES AND THEIR DEPENDENTS ======================================================================= HEARING before the COMMITTEE ON BANKING,HOUSING,AND URBAN AFFAIRS UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION ON UNFAIR OR ABUSIVE LOANS, CREDIT SALES TRANSACTIONS, AND COLLECTIONS PRACTICES THAT ARE PARTICULARLY HARMFUL TO SERVICE MEMBERS AS IT UNDERMINES MILTARY READINESS AND HARMS TROOP MORALE ---------- THURSDAY, SEPTEMBER 14, 2006 ---------- Printed for the use of the Committee on Banking, Housing, and Urban Affairs Available at: http: //www.access.gpo.gov /congress /senate / senate05sh.html ---------- U.S. GOVERNMENT PRINTING OFFICE 50-303 PDF WASHINGTON : 2009 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 UNFAIR OR ABUSIVE LOANS, CREDIT SALES TRANSACTIONS, AND COLLECTIONS PRACTICES THAT ARE PARTICULARLY HARMFUL TO SERVICE MEMBERS AS IT UNDERMINES MILTARY READINESS AND HARMS TROOP MORALE S. Hrg. 109-1081 A REVIEW OF THE DEPARTMENT OF DEFENSE'S REPORT ON PREDATORY LENDING PRACTICES DIRECTED AT MEMBERS OF THE ARMED FORCES AND THEIR DEPENDENTS ======================================================================= HEARING before the COMMITTEE ON BANKING,HOUSING,AND URBAN AFFAIRS UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION ON UNFAIR OR ABUSIVE LOANS, CREDIT SALES TRANSACTIONS, AND COLLECTIONS PRACTICES THAT ARE PARTICULARLY HARMFUL TO SERVICE MEMBERS AS IT UNDERMINES MILTARY READINESS AND HARMS TROOP MORALE __________ THURSDAY, SEPTEMBER 14, 2006 __________ Printed for the use of the Committee on Banking, Housing, and Urban Affairs Available at: http: //www.access.gpo.gov /congress /senate / senate05sh.html COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS RICHARD C. SHELBY, Alabama, Chairman ROBERT F. BENNETT, Utah PAUL S. SARBANES, Maryland WAYNE ALLARD, Colorado CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming TIM JOHNSON, South Dakota CHUCK HAGEL, Nebraska JACK REED, Rhode Island RICK SANTORUM, Pennsylvania CHARLES E. SCHUMER, New York JIM BUNNING, Kentucky EVAN BAYH, Indiana MIKE CRAPO, Idaho THOMAS R. CARPER, Delaware JOHN E. SUNUNU, New Hampshire DEBBIE STABENOW, Michigan ELIZABETH DOLE, North Carolina ROBERT MENENDEZ, New Jersey MEL MARTINEZ, Florida William D. Duhnke, Staff Director and Counsel Steven B. Harris, Democratic Staff Director and Chief Counsel Jonathon Gould, Counsel Patience Singleton, Democratic Counsel Joseph R. Kolinski, Chief Clerk and Computer Systems Administrator George E. Whittle, Editor C O N T E N T S ---------- THURSDAY, SEPTEMBER 14, 2006 Page Opening statement of Chairman Shelby............................. 1 Opening statements, comments, or prepared statements of: Senator Johnson.............................................. 2 Prepared statement....................................... 32 Senator Dole................................................. 3 Senator Reed................................................. 6 Senator Allard............................................... 6 Senator Schumer.............................................. 7 Senator Martinez............................................. 8 Senator Sarbanes............................................. 27 WITNESSES David S.C. Chu, Under Secretary for Personnel and Readiness, Department of Defense.......................................... 9 Prepared Statement........................................... 34 DoD Report on Predatory Lending Practices Directed at Members of the Armed Forces and Their Dependents................... 41 Admiral Charles S. Abbot, Retired, President and Chief Executive Officer, Navy-Marine Corps Relief Society...................... 19 Prepared Statement........................................... 133 Response to written questions of: Senator Shelby........................................... 200 William O. Brown, Jr., Associate Professor, Department of Accounting and Finance, Bryan School of Business and Economics, University of North Carolina................................... 20 Prepared Statement........................................... 143 Response to written questions of: Senator Shelby........................................... 200 Senator Crapo............................................ 201 Lynn Drysdale, Staff Attorney, Jacksonville Area Legal Aid....... 21 Prepared Statement........................................... 176 Response to written questions of: Senator Shelby........................................... 201 Hilary B. Miller, President, Payday Loan Bar Association......... 24 Prepared Statement........................................... 182 Response to written questions of: Senator Shelby and Senator Johnson....................... 204 Christopher L. Peterson, Assistant Professor of Law, Levin College of Law, University of Florida.......................... 25 Prepared Statement........................................... 195 Response to written questions of: Senator Shelby........................................... 216 Additional Material Supplied for the Record Letter from Hilary B. Miller on behalf of Community Financial Services Association of America................................ 398 A REVIEW OF THE DEPARTMENT OF DEFENSE'S REPORT ON PREDATORY LENDING PRACTICES DIRECTED AT MEMBERS OF THE ARMED FORCES AND THEIR DEPENDENTS ---------- THURSDAY, SEPTEMBER 14, 2006 U.S. Senate, Committee on Banking, Housing, and Urban Affairs, Washington, DC. The Committee met at 10:05 a.m., in room SD-538, Dirksen Senate Office Building, Hon. Richard Shelby, presiding. OPENING STATEMENT OF SENATOR RICHARD C. SHELBY Senator Shelby. The Committee will come to order. This morning, the Committee will hear testimony on the recently completed Department of Defense report on predatory practices directed at members of the armed forces and their dependents. The report draws attention to the problems of predatory lending around military communities and the plight of servicemen and women who are caught in what the report describes as debt traps. Although predatory lending schemes differ in their details, they share certain characteristics. For example, some lenders target financially inexperienced consumers and make loans without regard to the consumers' ability to repay. The lending products they offer also feature high interest rates and fees. These lenders often count on the fact that borrowers will be unable to pay the loan in full when it becomes due, forcing borrowers to seek additional loans which generate more fees. The end result is often the same: mounting debt, a deteriorating credit rating, and reduced availability of credit sources. Unfortunately, military personnel and their families are particularly attractive targets for this type of lending. They are often young and financially inexperienced, sometimes receiving their first steady paycheck. Because they fear military sanctions, including the loss of security clearance, servicemen and women are less likely to default entirely on loans and, therefore, represent a low credit risk to lenders. Finally, the fact that they are concentrated in large numbers on and around military bases makes them a readily accessible market for these types of loans. In addition to describing the most prevalent forms of predatory lending, the report that Secretary Chu will expound on also offers concrete legislative recommendations to reduce the impact and frequency of predatory lending. The Defense Department, is to be applauded for the effort it has made to promote financial literacy among service members and their families, but education can only do so much. As the Committee has learned in the cases and situations involving certain mutual funds and insurance products aimed at military personnel, stronger Congressional action may be required. As long as certain unscrupulous lenders continue to employ predatory practices, our servicemen and women suffer and the toll on our readiness will increase. I would like at this time to take a minute to commend Senator Dole, for her work to initiate this important study. It was through her efforts that this study was included in last year's Defense Authorization Act, and she has been very, very important to this cause. On our first panel today, we will have Dr. David Chu, Under Secretary of Defense for Personnel and Readiness; he will discuss the department's report. Our second panel will consist of: Admiral Charles S. Abbot, President and Chief Executive Officer of the Navy-Marine Corps Relief Society; Dr. William O. Brown, Associate Professor at the Bryan School of Business and Economics at the University of North Carolina in Greensboro; Ms. Lynn Drysdale, a staff attorney with the Jacksonville Area Legal Aid; Mr. Hilary B. Miller, President of the Payday Loan Bar Association; and Mr. Christopher L. Peterson, Assistant Professor of Law at the Levin College of Law, University of Florida. STATEMENT OF SENATOR TIM JOHNSON Senator Johnson. Well, thank you, Mr. Chairman, for this hearing, and I appreciate the Committee is meeting today to discuss an issue of critical importance. Thousands of our military personnel are currently serving in harm's way in defense of our country. In my State of South Dakota, over 3800 military personnel and civilians are stationed at Ellsworth Air Force Base, 300 of which recently deployed in support of the Global War on Terror. As a father of an active duty soldier, an enlisted man who served combat tours in Iraq and Afghanistan, I am acutely aware of the very personal and financial challenges facing our men and women in uniform. I am proud of their courage and professionalism and am grateful for their service to our country. Financial stress can affect any soldier regardless of their marital or deployment status, but in particular younger or lower-ranked enlisted personnel. We all sympathize with the soldier who incurs debt because he is blind-sided by unexpected emergencies, auto repairs, personal or family illness, or is just struggling with basic living expenses. I share DoD's concern about service members falling into a cycle of debt whether through inappropriate use of credit cards, payday loans, or other forms of credit. I believe Congress and DoD must work together to improve the financial literacy of our service members and crack down on abusive and truly predatory practices by any lender. It is very clear that military personnel, like many other consumers, have a real and legitimate need for short-term small denomination credit products. According to the Federal Reserve, payday loans typically total $500 or less with fees ranging from $15 to $100. As the loans typically last for just 2 weeks, however, the annualized interest rates tend to be high. Now, one of the concerns that I have as we discuss this issue is that there are various steps that the committee and Congress could take relative to various sectors of the credit industry, but the underlying problem remains, and that is the problem of military personnel, particularly younger enlisted, but others as well, who are not able to make ends meet; and whatever we do with the various sources of credit, those problems remain. Obviously, one of the reasons that payday lenders have stepped into a vacuum is because the banking industry and the credit union industry have chosen not to pursue that level of lending with very much aggressiveness, and as a result, a vacuum has occurred. If we are to eliminate payday lending altogether and make it unviable in this niche, then the question I have is who fills then that niche, because the need remains. Do we then go to increasing use of pawnshops? Internet lenders? Loan sharks out of the back of their car? Where do we go next? That is one of the concerns that I have, is that we not jump from the frying pan literally into the fire in terms of abusive practices toward our military personnel. So I think we have some far-ranging questions that need to be answered. I know that the military is aware of the need for greater financial literacy, which is part of the problem. That is a national problem, not simply a military, but it is a national problem. We have got a long ways to go on that, but I am concerned that the underlying problem remains and I want to make sure that we don't have unintended consequences that are worse than the current illness that we may have. So as we continue to address the issue of predatory lending to the military, the primary goal, I believe, should be to develop meaningful solutions that will offer the greatest protections to our service members while avoiding measures that carry the potential for negative unintended consequences and driving service members into potentially far more abusive and more expensive and unregulated forms of credit. So, again, I thank you, Mr. Chairman, for holding this hearing and I hope that this leads us to a very constructive debate about how best to serve the needs of our American military personnel. STATEMENT OF SENATOR ELIZABETH DOLE Senator Dole. Mr. Chairman, I thank you for your interest in this subject and thank you for holding this hearing today. Secretary Chu, thank you so much for your excellent report. I appreciate the diligent efforts that have been made by those who assisted you in this effort. I also want to thank the witnesses who appear before us today in addition to Secretary Chu. I look forward to hearing from all of you. I have to say I am proud to have authored this legislation that directed the Department of Defense to prepare the report that we are focused on today, because this problem does provide a real threat to our national defense in my view. It is a real threat and it poses issues that need to be focused upon. Predatory lenders are blatantly targeting our military personnel, undermining their financial stability and tarnishing their service records. This practice not only creates financial problems for individual soldiers and their families, but also weakens our military's operational readiness. Military conduct codes stress financial solvency, and bad credit can prevent service members from having the security clearances they need to perform their duties. Unfortunately, all too many are reluctant to seek help until it is too late, resulting in disciplinary measures that can end a career. Let me focus on testimony from a commanding officer included in the DoD report, and I quote: ``Between 2000 and 2005, revoked or denied security clearances for sailors and Marines due to financial problems have increased 1600 percent.'' I find it telling that the report also shows that in the same time period, the number of payday lenders more than doubled from 10,000 in the year 2000 to 23,000 in 2005. Overall, predatory lending cost U.S. consumers more than $25 billion a year, and these lenders profit from the most vulnerable borrowers. As we see in this report, Mr. Chairman, several factors make our men and women in uniform particularly susceptible to this practice, as we have already heard this morning. For starters, many are young, and like most young Americans, they lack financial savvy and security. In fact, the Defense Department is the largest employer of young adults in the United States with nearly half of its enlisted members under the age of 25. In addition, service members have job security and steady incomes, and they are fashioned by a military culture that emphasizes financial responsibility and settling debts. Borrowing can be an alluring option for a young soldier to get cash fast and easy, but exorbitant interest rates can quickly send an individual into a downward spiral of debt. As the Pentagon's report mentions, my home State of North Carolina has been aggressively cracking down on predatory lenders, imposing a 36 percent small loan usury cap reinforced by a strong bank regulator. Other States also are active in combating this practice. While this is, indeed, encouraging, the report also mentions States where the problem continues, like Arkansas which has a low usury cap in its constitution, but still allows lenders to charge triple-digit interest rates to service members stationed at Little Rock. We need national standards that ensure that all of our courageous men and women in uniform are protected no matter where they are based. The DoD report states that as many as one in five service members are falling victim to predatory loan operations. Still, there are some who question whether these lenders are truly targeting our military even when many, specifically military and installment lenders, market themselves with names and logos that imply an official military connection. For example, you see here ``Armed Force Loans'', ``Military Loans.com'', and ``Pioneer Military Lending''. In addition, the geographic evidence speaks for itself. Let us look at this February 2005 map of the State of North Carolina. This was prepared by Dr. Steven Graves from California State University, Northridge. Now, keep in mind that this map was created at a time when North Carolina had 612 payday lenders. Today, because of our State's laws, these lenders no longer operate in North Carolina. This 2005 map shows us the most targeted ZIP Codes for payday lending in North Carolina. We can see that the larger population centers, like around Charlotte and Raleigh, have high concentrations of payday lenders, as would be expected. But look at the counties with the greatest number of payday lenders. These are areas with significant military presence. The county with the State's highest concentration was Wayne County, home of Seymour Johnson Air Force Base. Cumberland County, where Fort Bragg and Pope Air Force Base are located, has the third-highest concentration, and Craven County, the site of Marine Corps Air Station at Cherry Point, has the fourth. Let us specifically look at Fort Bragg and Pope Air Force Base. In 2005, statewide, there were roughly four banks to one payday lender, but in the entire three-mile zone surrounding the perimeter of Bragg and Pope, the ratio was four banks to every five payday lenders. Now let us look at the February 2000 map of just the eastern side of Bragg and Pope. This map shows that seven of the thirty-six payday lenders in just this area, or about 20 percent, were within one mile of the bases while just five of the 68 banks are in the same area. And if we look between one and two miles of the base, there are six additional payday lenders and only one bank. In the two- to three-mile zone, the ratio of payday lenders to banks gets closer to the statewide average with three payday lenders and six banks. In reviewing the DoD report and other maps produced by Dr. Graves, it is apparent that some unscrupulous payday lenders are clustering around military bases across the nation. As a Senator representing more than 115,000 North Carolina- based service members and as a member of both this committee and the Senate Armed Services Committee, this issue is one of my top priorities. With my support, the Senate approved an amendment to the Fiscal Year 2007 defense authorization sponsored by Senator Jim Talent to enact a 36 percent annual interest rate cap on abusive loans to service members. Last year, Mr. Chairman, you will remember I proposed a similar amendment to the Defense Authorization Bill, but I encountered jurisdictional objections. The interest rate cap provision now awaits consideration by a House Senate Conference Committee. I am hopeful that a provision on predatory lending that includes the rate cap as well as additional recommendations from the Pentagon report will be included in the final legislation. Should the conference report not properly address this problem, I will introduce legislation that incorporates recommendations made in the report. Supporting our service members means more than providing the equipment and training necessary for fighting the War on Terror, Mr. Chairman. We should also support their livelihood and their families, and predatory lending can seriously harm both. I look forward to working with this committee as we strive to put a stop to this egregious practice. Thank you, Mr. Chairman. STATEMENT OF SENATOR JACK REED Senator Reed. Well, thank you very much, Mr. Chairman. I commend you for holding this hearing and I commend Senator Dole for her efforts in this regard, and I don't represent North Carolina, but I used to command a parachute company in Fayetteville, North Carolina at Fort Bragg in the 504th Parachute Infantry Regiment, and I have seen young soldiers at payday who are financially strapped and willing to sign anything to get a few dollars, and I think this behavior, if it is targeted to exploit soldiers is absolutely reprehensible. We owe them a lot more than that. This is a command responsibility. I am glad the Secretary of Defense and the Defense Department are taking steps with this report. The commander at that base and every base in the country have to work hard to educate their soldiers. The community leaders of the Fayettevilles and all the other military towns had to step up to the box too, and we have to do our part. The provision that Senator Dole talked about, a 36 percent cap, I think is more than reasonable. Some of these loans have average annual percent rates of 470 percent. One of the advantages I had back in the 1970's commanding a company is most States had usury laws capping interest rates at 21 percent or so. That is a thing of the past now. We didn't have to worry, at least, in licensed agencies like this having soldiers pay a 470 percent interest rate. So I think we have to do more. I hope we can keep this provision in the bill, and I will not, I think, be here to ask questions. I have to go to the Armed Services Committee, I think along with Senator Dole, because of the military tribunal issue; but I would ask every witness to give their position with respect to that 36 percent cap, starting with Secretary Chu. Thank you, Mr. Chairman. STATEMENT OF SENATOR WAYNE ALLARD Senator Allard. Thank you, Mr. Chairman, for holding this hearing to examine the ``Department of Defense's Report on Predatory Lending Practices Directed at Members of the Armed Forces and Their Dependents''. I am proud to represent a State with a significant military presence, and I am looking forward to the opportunity to learn more about this matter. We owe our military personnel a great debt. They volunteered to risk their lives to protect freedom and democracy; therefore, it is only reasonable to expect that we would protect them against predatory lending. Predatory lending is an abhorrent practice, especially when it takes advantage of our men and women in uniform. Earlier this year, I was pleased to support Senate Bill 418, the Military Personnel Financial Services Protection Act. This is one way in which we can help prevent predatory practices aimed at those in uniform. During our hearings on that bill, it became obvious that financial literacy is key to preventing predatory practices and the Department of Defense has a serious need to fill regarding financial education. Unfortunately, too many people today lack basic financial literacy and skills, and military personnel face the same challenges. Therefore, it is important that the DoD help provide financial education that will enable personnel to make appropriate financial decisions. The DoD report includes information on their strategy to educate members of the armed forces and their families regarding predatory lending as well as programs to reduce or eliminate predatory lending. This is particularly important for my home State of Colorado where military personnel are four times more likely than civilians to have taken a payday loan. Military personnel make up 1.1 percent of the adult population, but they account for 4.6 percent of payday loan customers. While not all payday loans are necessarily predatory, these numbers do raise important concerns. First, why do military personnel account for a disproportionate share of payday loans? The second, do the personnel have other options? And third, do members of the armed forces understand the implications of the different alternatives? I am eager to learn more about these issues as we delve into the report. I would like to thank the witnesses for being here today. Their testimony will provide us with a better understanding of the issues. I look forward to their testimony. Thank you, Mr. Chairman. STATEMENT OF SENATOR CHARLES E. SCHUMER Senator Schumer. Well, thank you, Mr. Chairman. Thank you for holding this timely hearing, and I want to praise my colleague, Senator Dole, for getting this report done and into the Defense Authorization Act. We may be at loggerheads on certain things outside the Capitol, but we can work well together inside the Capitol. Senator Dole. Thank you. Senator Schumer. Now, this is a topic that has been of great concern to me for a long time. I have heard of so many bad stories in New York State by Fort Drum near Watertown, our largest military installation, one of the largest in the country, in the capital region in Albany by Watervliet near the Stratton Air Force Base, and in western New York by Niagra Air Force Base. We are in a funny situation in New York. We have pretty strict usury laws. So you would think that payday lending wouldn't occur, these loans as high as 800 percent, just absolutely disgusting, ripping off service men and women and their families; but the banks find ways around so that at first, we had New York processing the loans through, say, Delaware or other banks, and we worked with the FDIC, and they finally shut that down. But in this new information society, the internet, newspapers, etc., still hold the service men and women, who we are so proud of in New York, they are holding us victim. So here, and I would like to point this to Secretary Chu's attention, the ``Army Times'', and you have fast cash, Force One lending from Albuquerque, New Mexico. A soldier in Fort Drum can read that, go on line, or whatever. ``Need a loan?'' This is one in Nevada. So unless we have a national law, we are not going to stop this no matter what we do at the State level, no matter what we do in terms of the FDIC, and one thing, Mr. Secretary, I would urge you to do is--I don't know if there is a way you can, but could you prohibit ads like this in the ``Army Times''? Maybe you will talk about that when you come before us and the other kinds of newspapers that DoD has a real hand in putting out and helping. There is freedom of speech, but I don't think if they put an ad, you know, join a bank robber, come join Joe Smith Bank Robbery Team, you would put that in. Well, this is sort of the same thing. So I would urge you to look into that. And I would ask unanimous consent that the rest of my statement be put in the record. I want to thank you, Mr. Chairman. Senator Shelby. Without objection, it will be made part of the hearing record. Senator Schumer. Thank you, Mr. Chairman, for the good work you have done with the Military Personnel Financial Services Protection act which we passed in June, and that did a good job about abusive sales practices. We need to do the same good job about abusive lending practices, and I know that we decided against including those lending practices in this bill so DoD would conduct a review, and now we don't have to wait. So I want to join with you and all of my colleagues to make sure we shut this down once and for all. STATEMENT OF SENATOR MEL MARTINEZ Senator Martinez. Mr. Chairman, thank you very much. I would ask again, likewise, that my entire statement be made part of the record. Senator Shelby. Without objection, your entire opening statement will be made part of the record. Senator Martinez. Thank you. Also, a letter from Daniel Mica, President and CEO of CUNA, be made part of the record. Senator Shelby. It will be made part of the record. He is head of the credit union. Senator Martinez. Correct. Mr. Chairman, I would just comment along the lines of what Senator Schumer said, that this is an egregious practice. It is a terrible plight upon the lives of our service men and women and really to all people who fall prey to this kind of lending. When I was Mayor of Orange County in Orlando, Florida, we had a problem with payday loans, a very similar problem, more afflicting the civilian population, but nonetheless where they would take the security, a vehicle, and then people get a bunch of cash. Within 6 months after they have paid off a car, they no longer have a car. It has been repossessed from them. This is the kind of practices that take place. As the chairman well knows, during my time at HUD, we did a lot to try to work against predatory lending in home lending, which is a first cousin to this problem. So let me just commend you for holding the hearing and commend Senator Dole for her leadership on this issue, and I share my full support for whatever we can move forward to ensure that this egregious practice, particularly the plight upon our servicemen and women comes to a stop. Senator Shelby. Thank you, Senator Martinez. Secretary Chu, your written statement will be made part of the hearing record in its entirety. You can proceed as you wish. We appreciate your work in doing this report. Thank you very much. STATEMENT OF DAVID S.C. CHU, UNDER SECRETARY FOR PERSONNEL AND READINESS, DEPARTMENT OF DEFENSE Secretary Chu. Thank you, Mr. Chairman, members of the Committee. It is a privilege to be here this morning to testify on the report that we rendered at the direction of the Congress on this issue of predatory lending practices directed at military personnel. It certainly is a special privilege to be here with Senator Dole whose actions led to that direction and to which we were delighted to respond. Financial readiness in our judgment equates to mission readiness. It was my privilege in May of 2003 to join with the Treasury Department in launching our broader financial readiness campaign. That campaign encourages service members to achieve good credit standing and to save on a regular basis for emergencies, to watch their borrowing practices, including the interest rates they accept, to take advantage of the Thrift Savings Plan and the Service Members and Veterans Group Life Insurance Program. Through these diverse efforts, we focus on the issue of personal financial stability. We hope to develop a culture that focuses on sound financial decisions by our military personnel. That culture will encourage service members to reduce reliance on credit cards, to implement short-term and long-term savings plans, and to resist predatory lenders. The department, as we reported, is concerned about predatory lending because it is detrimental to mission readiness and because it can have disastrous consequences on the quality of life and for the careers of service members. It is one of the reasons that we have made this issue, predatory lending, one of the 10 key issues the department and the Secretary of Defense is addressing with the Governors of our Nation and other State officials to seek their assistance as well. We do recognize that it is the first responsibility of the Department of Defense to prepare our service members through education and counseling, and as the report indicates, the military services have devoted considerable time and talent to educating service members and, to the extent possible, their spouses so that they do, indeed, become better stewards of their finances. To enhance the educational capability of the military services, several prestigious nonprofit agencies and members of the Federal Financial Literacy Commission have joined our financial readiness campaign, and they will help us increase awareness, understanding, and knowledge of the assistance that is available to our military personnel. Commanders at every echelon, from the Chiefs of Staff down to the unit commanders, as Senator Reed testified, have been involved in emphasizing this important message to our troops. It was my privilege this week to invite the service department secretaries to endorse a campaign that we will be initiating next February called ``Military Saves'', which asks everyone associated with the Department of Defense to consider reducing his or her debt, and save for the future. This campaign is part of ``America Saves'', which has been endorsed by the Chairman of the Federal Reserve Board. It is through these diverse efforts, we believe, that we will keep our current focus on the issue of personal finance in place and develop the intended culture within the military that encourages service members to seek assistance when they need it rather than burying their financial concerns in additional debt. The report we provided to Congress gives an overview of the efforts within the department to educate, inform, and influence service members and their families to take control of their finances, to build wealth, and to escape the cycle of debt for their own well-being and to enhance their military readiness. The department has, indeed, recommended--specifically to Senator Schumer's question, the department has recommended establishing an interest rate cap of 36 percent for service members and their families. The department believes service members who acquire loans with interest rates above 36 percent should seek assistance and not consider further debt load. The 36 percent limit creates a barrier for installment lenders to refrain from packing fees and premiums--and others have alluded to this this morning--onto the base interest rate that is charged for a loan. The limit of 36 percent is considered appropriate since it mirrors the limitations found in several States, actually a majority of States, for their small loan products. It is an amount that has been proven reasonable for consumers and the industries that serve them. To accelerate this process, we have recommended in our report to the Congress that limits be placed on the credit opportunities that do not consider service members' ability to repay their debt, and that is the subject you mentioned, Mr. Chairman. We want service members to take the tough steps necessary to get themselves out of debt rather than the quick cash solutions that lead them to much worse circumstances. It is our job to give them the tools they need to resolve their debt. We are continuing to improve the already substantial system of support available to them, but we need your assistance in limiting the availability of loans that fail to consider the ability of the borrower to repay so that service members can and will consider other alternatives. As long as these options are legal, we have little to no control over how much and how often service members access these options. By the time commanders are aware of their troops' financial problems, that damage is done. Service members inherently understand that limits on interest rates are appropriate even if these limits will decrease the ability of credit. When asked in a recent survey, 74 percent of service members agreed with the statement, and I quote it, The Government should limit the interest rates that lenders can charge even if it means fewer people will be able to get credit, end quote. Service members are in agreement that there should be limits. Commanders have made their positions known that limits should be established. The department sees this as an important issue as part of our compact with our commanders, service members, and their families for their well-being and in support of military readiness. The department asks for your assistance in adopting the statutory steps necessary to establish more effective limits. I am very grateful for this opportunity to appear, Mr. Chairman, to share our concerns with you and the members of the Committee. The department is ready to assistant your committee in developing effective limits on predatory lending that affects military readiness. Thank you, sir. Senator Shelby. Senator Dole, you are the leader here. We will recognize you first. Senator Dole. Thank you, Mr. Chairman. Secretary Chu, I thank you very much for your testimony this morning. In a June article in ``Sea Power Magazine'', Master Chief Petty Officer of the Navy Terry Scott is quoted as saying: ``The No. 1 reason our sailors are forced from one job to another is because they lose their security clearance, and the No. 1 reason they lose their security clearance is because of financial difficulties.'' Do you know this statement to be accurate and are these financial difficulties due to predatory lending? Secretary Chu. Ma'am, my understanding is that Master Chief Scott's statement is based on an internal Navy analysis and, therefore, I would accept it as a good description of the challenge we face in this arena. And, yes, an important part of that problem is the result of predatory lending. Senator Dole. Now, in your report, you included testimony from a commanding officer stating that revoked or denied security clearances for sailor and Marines due to financial problems have increased 1600 percent between the year 2000 and the year 2005. Is predatory military lending a leading cause of these financial problems and do you expect this trend to continue without legislative action? Secretary Chu. We need legislative action, to get to the bottom line, because without it, and I think members of this committee have spoken to that, we cannot curtail the migration of this set of predatory practices to other products. The advantage, I think, of the Senate amendment that you co- sponsored is that it does shut it off. It shuts it off by including fees within the cap. It shuts it off by making internet-based loans unenforceable across State lines. So even if State A fails to curb the internet lender, the contract is null and void across the country. You can't enforce it if you are a military person. So, yes, ma'am, we do need legislative assistance to curb this problem. We do think we are making progress in the awareness of our people about their situation and how they should conduct themselves, but education and preparation alone are not enough given the practices that you so eloquently described with the maps that you showed just a few moments ago. Senator Dole. Now, you reported the strong actions--I think this is page 47 of your report--that North Carolina has taken to combat predatory lending. Can you tell the committee how this has affected personnel who are stationed at bases in North Carolina? Have the actions taken by North Carolina eliminated the threat of predatory lending or are there further actions the State should take? Secretary Chu. First of all, I want to commend North Carolina for its actions. They have had a dramatic affect. They have substantially reduced the problem. At least that is what our commanders tell us at the important bases in that State. They do not--this gets to your issue, ma'am, of do we need national legislation. Our view is, yes, it would be very beneficial, and I particularly value the provisions in the Senate amendment you co-sponsored because of their effect in curbing the internet interstate lending operation by making those contracts unenforceable. That is a key provision. Moreover, it helps us in other States. I don't want to in any way denigrate what North Carolina has done, but we need national action on this as far as military personnel are concerned. Senator Dole. You cite a Center for Responsible Lending report as follows: ``Active duty personnel are three times more likely than civilians to have taken out a payday loan and that predatory payday lending costs military families over $80 million in abusive fees every year.'' Do you believe this analysis is correct, Secretary Chu? Secretary Chu. We have done our internal estimates. They are not precisely the same, but they are in the same ballpark. You would get similar results from other methodologies. Yes, ma'am. Senator Dole. And the report on page 14 states that: ``The Uniform Code of Military Justice penalizes service members for deliberately writing a check not covered by funds on deposit.'' Can you describe the penalties that the service members are subjected to? Secretary Chu. First, let me emphasize the important provision of the Code, because it makes personal financial responsibility something that is governed by our military justice system, and so it calls it to the attention of all our personnel. What the penalties are depends, of course, upon the seriousness of the offense, and as you appreciate, ma'am, we administer it on a decentralized basis where commanders decide the immediate courts-martial, or other administrative authorities decide what the penalties should be. So there will be a range of penalties depending upon the seriousness of the infraction. Senator Dole. Thank you. The final question, Mr. Chairman, the report states: ``Lenders who only lend to nonresident military personnel in about half the States have either been granted formal exemption from State regulation or have not been required to be licensed or supervised by State regulators under a variety of legal arguments.'' Secretary Chu, can you describe in greater detail how these lenders circumvent regulation and are they able to do this in North Carolina? Secretary Chu. As you suggest, ma'am, and this is another reason for national legislation, a number of States have taken the position that if you are lending to a non-State resident, the State law does not apply. We do not like that rule. We are advocating the States to change that position, but it is essential, I think, to have national legislation. That is also an issue in North Carolina, I would acknowledge. Senator Dole. Thank you very much. Thank you, Mr. Chairman. Senator Shelby. Senator Johnson. Senator Johnson. Thank you, Secretary Chu. I think it is easy for us to sit here in a committee room and say that, Well, these military personnel should just forego getting credit; they have a funeral to go to; they have no cash; the heck with them. That isn't a very satisfactory answer and I don't think it is very realistic either. I think that they are going to continue to seek credit for low denomination short-term debt. I think that is a given. The question is if we eliminate--if we place a 36 percent cap, that means you cannot borrow $250 for airfare for a $25 fee because that would, annualize, exceed the cap. Where do you suggest these guys go? What should they do? It seems to me that it's saying, Well, just don't borrow money. That is a good thing to say, but these needs do arise. They have arisen, and that is the reason we have this vacuum that has been filled by this particular industry, because the credit unions, the banks have not stepped in. And so I just wonder what do you say to that young soldier. He wants to go to his mother's funeral. What are you going to do? Secretary Chu. Nothing we propose, Senator, and nothing that has been advanced is about broadly denying credit to military personnel. Many, if not most, military personnel have credit cards to help them pay for airline tickets, not cash. Cash: I believe the Transportation Security Agency views it as a signal that perhaps you are not a person we want on our airlines. So I don't think that is the issue, Senator. The issue is predatory lending, getting people in over their heads, and the maps Senator Dole displayed, are, in fact, the indictment of this practice and the reason we need to curb it. These people are taking military people into a debt load that they cannot sustain. It is not about the airline ticket to a funeral. For that purpose specifically, if a military person has a pressing need, that is why we have and why we encourage the Military Aid Societies. I have talked with every military service about this. They have energetic programs to make sure that if there is a legitimate emergency, the Military Society is there to step forward, is eager to step forward. A major fraction of what they do these days is make sure that those kinds of needs are covered. We are also talking with the credit unions and other agencies of that type that offer regular banking products to be sure that they are responsive to these needs as well. So I don't think the example that you offered, sir, is, in fact, the situation. That is not what we are confronting here. We are confronting people in over their heads on a long-term basis. This is the rollover issue. Senator Johnson. Well, that is somewhat my point, is that it seems to me the problem here is not so much a fee on a particular low denomination loan as it is the rollover problem and how many rollovers are going to go on, and it seems to me that that is the larger issue than a fee that a credit card company charges or a bank charges for an overdraft and so on. It is how deep you go and how long you stretch out the loan, it seems to me, the greater problem than the 36 percent issue. But in any event, I appreciate your observations. It just seems to me that the need for low denomination short-term loans is not going to go away. I hope that there are mechanisms to deal with it. One of other points that it has brought out to me that I think we need to have some discussion as this goes forward is that two of the lenders that Senator Dole has focused on would not be affected by the 36 percent rate cap because their fees are not subject to the Truth-in-Lending Act. So I think we have some other issues that we need to work together on as well as we go forward with this. But I want to see all of our soldiers treated fairly, and I think we are all on the same page with that. The only reservations I raise are we are going to wind up denying short- term credit for people who have a legitimate need that is not rolled over time and time and time again and are we going to wind up putting a lot of our military personnel in a uniquely difficult circumstance that the other citizens of America don't have. So that is the issue I raise. I think we all are in good faith trying to do what is right for our men and women in uniform, but these are things I think we need to talk through in the committee. Secretary Chu. If I may, Senator, respond very briefly to two important points you made, first of all, we agree that you need a broad set of legislative restrictions. That is why we like the Talent-Nelson amendment to the Senate Defense Authorization Bill. It accomplishes that purpose in our judgment. The second issue of need for cash on an emergency basis, that is one of the reasons we have emphasized in our financial readiness campaign the importance of saving; you need to start setting the money aside. We pay adequately in the military these days. It is not the Army of 30 years ago. So one of the points is you need to start setting aside some money yourself for a rainy day. Senator Johnson. Well, I would say that we on the Congressional side think some of our enlisted personnel would maybe disagree with you that the military, particularly if they have children, is paying at a level that doesn't occasionally cause some financial stress; but one last question, and I know nothing about this proposal myself. It was called to my attention that the CFSA has made a proposal to DoD relative to an alternative approach to managing these loans. Have you had any opportunity to review that at all? Secretary Chu. We have the proposal from them. We will look at their proposal. I think our preliminary assessment is it doesn't fully deal with the issues at hand. I think, again, we believe that the Senate Authorization Bill, Section 666, if I recall, Senator, correctly does do a good job in that regard. Senator Johnson. Well, thank you for testimony. Secretary Chu. Thank you, sir. Senator Shelby. Senator Martinez. Secretary Chu. Good morning. Senator Martinez. Good morning. How are you, sir? Secretary Chu. Fine. Thank you. Senator Martinez. We had the pleasure to work together a little bit on some of these issues, frankly, relating to our servicemen and women when we began this war. We worked at little bit on the Sailors and Seamen's Relief Act, which I think is a very good thing, and I appreciate your working with me at that time. Mr. Chairman, I am pleased that there are some Floridians on the second panel today: Lynn Drysdale, Staff Attorney with the Jacksonville Area Legal Aid, and Christopher Peterson, Associate Professor of Law at the University of Florida. I don't know if I will be here, but I want to make sure the Committee will issue a welcome to them from myself. The issue of rollover has come up, and I wanted to ask you whether you thought a prohibition of these rollovers and loan flipping would address many of the practices that we see as the most egregious. Secretary Chu. That type of prohibition would, indeed, be helpful, sir, because that is part of the problem, people taking one loan. Then when it comes due, they can only pay it off by taking the next loan, and, of course, the fees and the interest rate build on that total. That is partly how you get these high numbers and you get people in a kind of trouble which they find tough to extricate themselves from. Senator Martinez. One of the things that I notice in your report is that this industry particularly advertises and preys upon our military personnel. Why is that? And if you can explain and articulate that, what is it that causes our folks in the military to be so vulnerable and at the same time to be such a target of these unscrupulous lenders? Secretary Chu. It is a very important question, sir. I agree. I think there are several reasons. First of all, as Senator Dole brought out, we insist people pay their debts. So you have got the power of our leadership behind making good on the loan eventually. Second, they have a steady paycheck, and so as you know, many payday loans are, indeed--just as the name implies, they predate a check. They know, unlike perhaps might be true in the private sector where sometimes you get paid--sometimes you don't get paid--they know that paycheck is going to show up in the bank account the first of the month. They are certain to get the money back. Second, or third I should say, our people have started to accumulate assets. Some have cars. So another version of this is the car title. They have an asset that can secure the loan. So our people do have collateral often, and they, unfortunately, for whatever reason, give it up for what is really a terrible financial deal. Of course, that is an educational issue for us, to make sure they understand, no, you really shouldn't go there; that is not the way to handle your situation; come to one of the other possible sources of assistance instead. Senator Martinez. I understand that at times people may have an emergency and they need short-term financial assistance. Is there not a network of assistance to our military families and the personnel in the event of a family death or bereavement sort of trip, things of that nature that can be available to them through governmental and nongovernmental sources? Secretary Chu. I think this is another example of the great volunteer spirit in our nation. We have a set of military aid societies, essentially one per military department. They have made it a priority to devote a substantial fraction of their resources to this issue of short-term cash needs. As Senator Johnson indicated, we need to lecture people and encourage them to save, but if you do get to the point where you need the cash, we ask that you come to the military aid society. That is why they are there. I reviewed with them just very recently what fraction of their portfolios are they devoting to this, and it is a high number in each case. They are trying to do that job. They are willing to do more if that is necessary. So there is a safety net out there. We are also asking our credit unions--we have credit unions on our military installations--to be sure they offer appropriate small loan products to our personnel as well. So I think there are several avenues of assistance. Ultimately what is needed is the military member or family member needs to get control of their finances, whatever pressed them to the wall. Senator Martinez. Financial literacy, in other words. Secretary Chu. Right. The loan is a Band-Aid. It is not a solution. Senator Martinez. I understand payday loans are now available on the internet from off-shore lenders, and if Congress acts to curb unethical lending practices at home, what more can we do to protect the Nation's military personnel from online lenders outside the country? Secretary Chu. Well, I think the important provision that is in this, as I understand the Senate Authorization Amendment, is to make internet contracts as far as military personnel are concerned unenforceable, and that means we can go--I am not trying to encourage inappropriate behavior, but if we faithfully execute that provision as Congress might desire, it will essentially make it unattractive for any internet lender to lend to a military person. Senator Martinez. Often times, subprime lending, particularly longer-term loans, can be confused with predatory lending. There is a difference between the two, is there not? There can be people with a credit rating that may not be as worthy as another or their loan might be at a higher interest rate, still within the law, still within reason, but a higher interest rate. That is not what we are talking about here today, is it? Secretary Chu. You are absolutely correct, sir. That is not what we are talking about. That is why we have endorsed the 36 percent limit. That is a high number. It is a high number, but we think it allows for subprime lending. It does cutoff a source of credit that might be important to people. It is consistent with the laws of a majority of States of our nation. Senator Martinez. Speaking of State laws, in 2001, partially in reaction to what Orange County had done in Florida, the State passed a very comprehensive law to prohibit the abuse of payday loans and by both licensed providers and consumers, and some say that the Florida laws are some of the strictest in the country. Are there aspects, if you are familiar with Florida law, that you believe would be a good basis for a national model? And perhaps our next panel might be better to answer this question, but I wanted to put it before you. Secretary Chu. Thank you, sir. I should probably turn to them. I am not an expert on Florida law, but I do know that across the board, Florida has been a leader in trying to support our military families in this area and in several other arenas as well. Senator Martinez. Thank you, Mr. Chairman. Senator Shelby. Thank you, Senator Martinez. Dr. Chu, it is my understanding that the Armed Forces Disciplinary Control Board can place commercial entities off limits to military personnel. Can you explain why this mechanism is not being used more frequently to ban specific predatory lenders from accessing military personnel? First, it that true? Can the Armed Forces Disciplinary Control Board place commercial entities off limits to military personnel? Secretary Chu. Yes, sir, it can. Senator Shelby. Have you done that? Has the Pentagon done any? If not, why not or do you plan to? Secretary Chu. It is a responsibility at the local level, installation level, as you can appreciate, sir. Senator Shelby. Is that by commander? Secretary Chu. By commanders. The difficulty, as I believe you are aware, is that as a matter of law, and I am not a lawyer, but as I understand the situation, basically, the way they place them off limits is because the establishment is violating the law. Of course, that is the essence of the issue here. These practices in many States are not illegal. We have looked at using this mechanism. Our counsels, plural, advise it is legally problematic to do that for this and other reasons. So in our judgment, the Disciplinary Control Board mechanism placing establishments off limits, at least under the present statutory construct, will not be effective for this purpose. Senator Shelby. For this purpose, but it could help, could it not? Secretary Chu. It is doubted by our legal staff that we can get very far with that instrument. Senator Shelby. In other words, the base commander can to some extent restrict who is coming on that base. Is that right? Secretary Chu. That is a different statement, sir, but in terms of patronizing off-base establishments-- Senator Shelby. Off base. Secretary Chu. He is, as I appreciate the law and I ought to let the lawyers speak to this, he is restricted to those establishments that are violating a law. If the product is legal, and that is our central problem, if the product is legal, however much we may find it distasteful, that establishment is not violating the law and he can't reach it with this mechanism. Senator Shelby. I believe Senator Dole said something to the effect that over half of the service people are under 25 years of age. A lot of them are 18 and 19 years of age. Secretary Chu. Yes, sir, and some of their spouses are younger. Senator Shelby. Do you know what percentage are 18 or 19 years of age? Secretary Chu. Not of the top of my head, sir. I can get those numbers for you. Senator Shelby. Could you do that for the record? Secretary Chu. I would be delighted to, sir. Senator Shelby. I just believe that we should, working with you and the Administration, do everything we can to protect the young soldiers because they are highly vulnerable, are they not? Secretary Chu. We agree, sir. They are early in their careers. Our nation's educational establishments, I think you and others noted this morning, do not give a large amount of education on financial management. That is something that is worth looking at, I think as a country, but, of course, people come to us with the preparation that our country gives them, and they often don't have the preparation. That is why we are investing in their preparation starting in basic training, but it does take time for those lessons to sink in. So yes, sir. We would appreciate the kinds of steps that Congress is considering to put temptation aside. Senator Shelby. Most of these young people, most of them or a great percentage of them, this is their first steady paycheck. I believe Senator Dole mentioned that I, as well Senator Martinez. Is that correct? Secretary Chu. Yes, sir. That is true. Senator Shelby. So people know that they have got a steady paycheck. So they know where the potential is often times for exploitation. Secretary Chu. Yes, sir. Senator Shelby. Does the report that you are talking about today indicate any trends concerning the prevalence and the impact of predatory lending on our service members? I think it does, but I would like to hear from you. Secretary Chu. Yes, sir. We have seen a growth, and Senator Dole's maps are eloquent in the North Carolina case, a growth in predatory lending institutions near military bases. I was struck just yesterday that a citizen with no connection to the problem, unaware that the department had done a survey, raised with me why when he was in the White Sands Missile Base did he see a clustering of these kinds of payday lenders right outside the gate. He thought that was shameful and a blot on our national reputation. Senator Shelby. Your report makes clear that loopholes and State laws or exemptions granted by State authorities are often abused by predatory lenders to avoid interest rates caps, disclosure requirements, and other consumer protections. Has the Defense Department approached the States with its concerns, with your concerns, and if so, what kind of response have you seen from the States in this regard? Secretary Chu. Yes, sir, we have. As I indicated, it is one of the issues the Secretary is personally engaging the Governors on, and as a broad matter, we are pleased with the Governors' willingness to listen to us. That does not, of course, always mean they can get the necessary legislation enacted in their States. That is why I think all of us pulling together can make a difference here, and I think national legislation will send a strong signal to every State that this is where the country wants us to be. Senator Shelby. Dr. Chu, we appreciate your work as the Under Secretary of Defense for Personnel and Readiness and especially in this issue. We will continue to work with you to try to resolve a real problem that we have on the bases. Thank you very much. Secretary Chu. Thank you, Mr. Chairman. Thank you for the opportunity. Thank you for your questions. Senator Shelby. I am going to call up now our second panel: Admiral Charles S. Abbot, Retired, President and Chief Executive Officer, Navy-Marine Corps Relief Society; Dr. William O. Brown, Jr., Associate Professor, Department of Accounting and Finance, Bryan School of Business and Economics, University of North Carolina; Ms. Lynn Drysdale, Staff Attorney, Jacksonville Area Legal Aid; Mr. Hilary Miller, President of the Payday Loan Bar Association; Mr. Christopher Peterson, Assistant Professor of Law, Levin College of Law, University of Florida. If you will all take your seats. Senator Shelby. All of your written testimony, as I have previously said, will be made part of the hearing record in its entirety, and what we would like to do, because we are going to have a vote on the floor in a little bit and we will have to move on, is let you sum up your top points that you want to make orally as fast as you can. Admiral Abbot, we will start with you. Welcome to the Committee. STATEMENT OF ADMIRAL CHARLES S. ABBOT, RETIRED, PRESIDENT AND CHIEF EXECUTIVE OFFICER, NAVY-MARINE CORPS RELIEF SOCIETY Admiral Abbot. Mr. Chairman, members of the Committee, thank you very much. I am grateful for the opportunity to appear here and to comment on the Department of Defense report, and I will abbreviate my remarks to leave the entirety as a part of the record, but as the President of the Navy-Marine Corps Relief Society, I am a head of a military charity, one of the four that Secretary Chu mentioned, and for a hundred years, we have been providing support to sailors and Marines and their families. I would like to say that as I look at the history of our organization, this problem with predatory lending, with payday lending, is the most serious single financial problem that we have encountered in that hundred years, and we know that the industry has said that they don't, in fact, target military personnel, but certainly our experience, we see it at the suffering end of these individuals that they are, in fact, a direct target. And I echo Senator Schumer's comment about the ``Navy Times' and other similar publications having ads in them where the lending organizations state that, in fact, they are purposefully organized to target military personnel. We see every day in our offices around the country individuals who have come in and have fallen into the venus fly trap of the payday lending problem, and it has literally destroyed their lives, and we provided cases to the Department of Defense for them to use in their report and we see additional ones every day which are contained in my draft comments to you. I believe that it is a growing problem. Every year, we see more of these individuals coming in the door at our offices, and over the last 5 years, it has been in excess of 5,000 individuals in more than two and a half million dollars, and we also see the growing problem of the internet payday lending business and the effect that that is having on the problem more broadly. So we enthusiastically support the recommendations of the DoD report. I do believe that in addition to the interest rate limitation, that flipping of the loans is, in fact, one of the serious problems. It is, in fact, what causes the individuals to get caught in the trap. There aren't very many who simply get a single loan and that is the last time they were ever seen. There are statistics which show that the average number of loans is usually as high as about five for an individual, and it destroys lives. It destroys families. Senator Shelby. It doesn't help readiness either, does it? Admiral Abbot. It does not, sir. We see that effect as the individuals come to us and they are removed from their duties to be able to deal with these problems, and then some, as Dr. Chu describes, in fact, lose their clearance and are unable to continue to serve in their assigned billets. So I thank you very much for the opportunity to appear before the Committee. Senator Shelby. Thank you. Dr. Brown. STATEMENT OF WILLIAM O. BROWN, JR., ASSOCIATE PROFESSOR, DEPARTMENT OF ACCOUNTING AND FINANCE, BRYAN SCHOOL OF BUSINESS AND ECONOMICS, UNIVERSITY OF NORTH CAROLINA Mr. Brown. Yes. I will shorten my remarks that are in my statement, as you wish. I have conducted some research on payday lending and on payday lending in the military. Senator Shelby. Have you published in that area too? Mr. Brown. I have not published academic journal articles, but hopefully I will at some point. This research has focused on trying to figure out why it is that military personnel use payday loans and why payday loans are used by the broader sort of population and student population as well. As noted here, this business has expanded greatly in the last 10 years. It almost went from a business that didn't exist to a business that now has over 20,000 outlets. So I will summarize some of our key factors that found. We surveyed a list of personnel in the four service branches regarding their attitudes toward and uses of the short-term credit, including payday loans. Our analysis is based on the empirical data that we collected through a random sample of people who live on the military bases. The first finding is that a small percentage of enlisted personnel use payday loans. We found that roughly 13 percent of the 460 enlisted personnel that lived around the military bases that responded to our survey indicated that they had used a payday loan in the previous year. That number, I mean, 13 percent to some extent may seem high, but this is just enlisted personnel, which you already noted the people are often times 18, 19 years old. If you compare that to a similar group of population among the general population, you will find that that number is not out of line with people that are 18, 19 years old in terms of what they are doing with payday loans as well. Military borrowers report that they use payday loans for the same things as civilian borrowers do. They are paying bills that they otherwise can't afford. They have unexpected automobile, home repairs, those kinds of things, and so they are reporting that they are using it for those purposes. Despite this admonition that they should save, you know, spending a lot of time around young people, these admonitions don't go very far. Right? You should also study for your exams. Right? With students, sometimes it takes a while to learn that. Right? So it is only after failing on occasion that sometimes you learn and stuff hits. So I think just admonishing them to save and not actually giving them the ability to fail in small steps--now, you want to prevent these serious egregious things that happen which you can make sure that you give people the ability to learn from their mistakes in some cases as well. What we also found is that the military enlisted personnel look much different from civilians using payday loans in that they tend to pay them back more quickly. We don't see the same rollover problem that you see with the civilian users and the military of payday loans. Forty-nine percent of the military payday loans, borrowers had two or fewer loans in the last 12 years. I mean the last 12 months. So it is not an indication that they are rolling these things over or rolling them over continuously. Again, there is a small group in the sample that do roll these over, and you should be concerned about those people and find better education for them, but given the overall low default rate on these loans to begin with, given the military personnel and the small fraction that are using them, and given that most of them aren't using them and don't have these serious rollover issues and are only using them once or twice a year, we indicate that there is not really a threat to military preparedness, and there is nothing in the DoD report that suggests, that gives anything other than this anecdotal evidence that these sometimes create problems. There is no large scale statistical evidence that this is a problem. Senator Shelby. Ms. Drysdale. STATEMENT OF LYNN DRYSDALE, STAFF ATTORNEY, JACKSONVILLE AREA LEGAL AID Ms. Drysdale. Thank you, Honorable Chairman and Committee Members. I am a legal services attorney in Jacksonville, Florida, home of Naval Air Station Jacksonville and Mayport Naval Station. Based upon the increasing number of clients I represent and the military people I talk to, the DoD report is right on target, and I urge you to adopt the recommendations for statutory changes. In brief, the payday loans I see are generally short-term 2-week loans with interest rates ranging from 390 percent to well over 900 percent. If I don't have $300 today, it is unlikely that I am going to have $300 today plus 900 percent interest 2 weeks later. So they are destined to fail. Why do people sign these loans? Because even your mainstream payday lenders explain away the interest rate. They say, Well, the APR is 390 percent, but it is only a 2-week loan rather than a year loan, so don't worry about the interest rate. Others use loan disguises. I am going to reference just a few. Senator Shelby. How much do you say the APR was? Ms. Drysdale. Anywhere from 390 percent. Senator Shelby. 390 percent? Ms. Drysdale. 390 percent up to--the most recent I have seen is 906 percent. The lenders which do this get around Florida law by using loan disguises. I will describe very briefly several of my clients, and some of them I will have to refer by an initial. Please keep in mind that these are only representative of dozens of other clients with the same problems. Mr. B went to a payday lender which disguised its loan as rebates. In other words, he was getting not a loan, but a rebate in return for his paying for the right to use the internet on the small computer they had in their office that was not plugged in. When he could not repay the loan at a 400 percent interest rate, they took the loan amount plus hundreds of dollars directly out of his bank account, meaning that he did not have enough money to pay rent. He also not have enough money to put groceries on the table and not enough money to pay for diapers for the family's small children. When this company had taken all of the money out of the bank account, they sent him an unauthorized letter on State Attorney letterhead threatening criminal prosecution if he didn't pay the debt. Not only do these lenders illegally try to use our State Attorney's Office for a law enforcement arm, but they also use the military chain of command as a collection enforcement tool. Because the members of the military are governed by the Uniform Code of Military Justice, the payday lenders contact the service members to harass them and they also contact their chain of command. You may have seen the Hubbells, a family represented in an ABC News story who started out by taking out one payday loan because Ms. Hubbell was stricken with a very aggressive form of breast cancer. They were both in the military, but she was forced to quit work. They took out a payday loan to address some of the financial stress involved with her illness. Over the years, they have borrowed about $10,000 in payday loans, most of which did not benefit them, but went to rollovers. They have paid tens of thousands of dollars back and still owe $12,2000. Mr. Hubbell once got a call when he was at work. He was an E-6 air traffic controller and got a call at work from a payday lender threatening and harassing him to pay. He told them he had an attorney, and so the call ended. Twenty-five minutes later, his superior officer called Mr. Hubbell and said, I have already had two phone calls from the same gentleman harassing me, ordering me to give him the name of your commanding officer so he could call him. Mr. Hubbell was terrified he was going to lose his security clearance, he was going to lose rank, he was going to lose pay and maybe even his job. Mr. G sent me an E-mail. He was stationed out in the middle of the Mediterranean in an undisclosed location. He was terrified because his wife had E-mailed him telling him that a payday lender was threatening to put her in jail which would mean their two children would not have a parent at home. Mr. Kahne was so frightened by all of these types of collection techniques that he spent his entire day off going from payday lender to payday lender, rolling over loans with nine different companies so that he would not bounce a check. Mr. Wall sued Military Financial Network because they debited his account 11 times in 1 day, creating hundreds of dollars in bounced check fees with his financial institution. The lender also added additional fees and charges. Military Financial Network also put a clause in Mr. Wall's contract that if he didn't pay the debt, he would be subject to a court- martial, imprisonment, and dishonorable discharge. Also, if Mr. Wall wanted to sue this company because of all of these illegal actions, he was precluded from doing so even though this company had all rights of enforcement. They put a clause in his contract that if he didn't like the way they were operating, he could not go to court; he had to go through expensive arbitration in Delaware despite the fact that he was located in Florida when he signed the loan. You will hear that the pay day lenders' organization, the CFSA, has best practices that all of its members are required to follow. Well, let me comment on a women I started representing 2 weeks ago. She is a Navy wife who has taken out a loan with one of this industry organization's founding members. In Florida, there is a prohibition to rollovers, but this company and other companies get around it by requiring the borrow to wait 24 hours before getting the rollover loan. Florida also allows a grace period with no additional penalties or fines or interest if you seek credit counseling. Ms. Griffin went to pay off her loan and was told that she needed to roll it over because she was $45 short, which she did. The next time she went back, she had obtained the required credit counseling from the Navy-Marine Corps Relief Society, which is an authorized credit counseling agency for the purposes of getting the grace period. They still refused the grace period, and ironically, in their contract, the lender stated it was a member of the CFSA and followed the best practices. The Director of the Navy-Marine Corps Relief Society, Retired Captain Dave Faraldo, called this company and said, ``You are required to give her the grace period.'' The employee said, ``No, we don't have to give her the grace period and, in fact, I have been a trainer of employees for 8 years and we have never had to give the grace period.'' She refused to speak to him anymore, and would only speak to her attorney. I called them as her attorney. They refused to speak to me even if I did provide a written release. I said, I would like to speak to your supervisor. She said, I can't give you the name or the number of that person, but I will have them call you. That is 2 weeks ago. I haven't heard a word from them. And the real shame in this is that all of these people I have mentioned would have the alternative of the Navy-Marine Corps Relief Society, and even my credit union offers a similar short term loan for emergencies. They did a study and determined they could provide a similar product and they could feasibly do it at 14 percent APR. There is also a savings component in with the loan as well as credit counseling. My credit union is responsible to me to make sure it is making financially sound decisions. I have filed lawsuits against the internet lenders and am presently pursuing those cases, and also there have been enforcement actions by other States against the internet lenders so they would not be immune to the type of legislation that has been proposed. Senator Shelby. Thank you. Mr. Miller. STATEMENT OF HILARY B. MILLER, PRESIDENT, PAYDAY LOAN BAR ASSOCIATION Mr. Miller. Thank you, Mr. Chairman and Members of the Committee. It is a pleasure and honor to be here today. My name is Hilary Miller and I am here both as an expert on subprime lending and also on behalf of the payday advance industry's national trade association, the Community Financial Services Association of America or CFSA. Both the Payday Loan Bar Association, of which I am President, and CFSA subscribe to the highest principles of ethical and fair treatment of borrowers. CFSA represents the owners of approximately half of the estimated 22,000 payday advance retail outlets in the United States. CFSA has and, importantly, enforces among its members responsible industry practices and appropriate consumer rights and protections, including special protections for the benefit of military personnel. There are serious flaws in the Defense Department's report. Those flaws involve both fundamental matters of methodology and policy. We think that decisions involving potentially far- reaching implications regarding the cost and availability of consumer credit should be reached only after a careful gathering of data from a variety of sources and even-handed analysis of such data. By failing to synthesize information from balanced sources and by systematically excluding any input from independent economists, from consumer credit experts, or from the industry itself, the DoD report presents the views only of opponents of the kind of lending that is discussed in the report. The result is a biased, inaccurate, and incomplete picture of the market for such credit. Our industry, contrary to some of the discussion of the ability-to-repay issue, has a vital interest in making sure that military borrowers can repay their loans, and for one simple reason: as lenders, we only make money when our borrowers repay us. If they do not pay, not only do we fail to collect their finance charges, which the DoD criticizes, but we also lose many times those finance charges in loan principal. In short, it is contrary to our interests to have service members get into trouble with their loans. The reason we lend to military borrowers at all is that the entirety of the available scientific data suggests that only a tiny percentage of military borrowers actually do get into trouble with payday loans. Anecdotes derived from a non- representative sample of this small group are now being used to drive public policy for the much larger numbers of military borrowers who use payday loans for their intended purpose and who repay their loans on time and without financial difficulty. There are serious flaws that I have mentioned, and here are some of them, in the report: First, the DoD report determines that payday loans are predatory solely by uncritically adopting eight factors used by an opponent of the industry, the Center for Responsible Lending, without making the independent determination that such loans are unfair or abusive as required by the applicable statute. No other recognized authority has used these factors. Second, according to DoD's own internal data, fewer than 5 percent of service members have had a payday loan. That is not indicative of a problem from my standpoint, and because fewer than 6 percent of payday loans ultimately default, at most 6 percent of that 5 percent, or 0.3 percent, of all service members have experienced financial difficulty with a payday loan. In other words, 99.7 percent of service members have either not had a payday loan or have not had financial difficulty with payday loans. There is simply no statistical evidence that payday loans contribute to military readiness problems to any measurable degree. Now, although some service members with financial problems have taken out payday loans, DoD data do not support the conclusion that payday loans cause financial problems. It is purely a correlation-is-causation argument in their report. Payday loans are intended to solve financial problems and the overwhelming majority of users employ them in that manner. DoD's data regarding the asserted hardship related to payday loans consists of a mere 12 anecdotes drawn from the experience of 1,400,000 active-duty military personnel. We did a sample of service members who had a variety of different kinds of debts and who went into bankruptcy, which is the ultimate example of financial failure. Now, we looked at not only what kind of payday loans they had, but what all of their other loans were, and our experience was that the payday loans were the last loans that they got. They were not the first loans that they got. Most of those borrowers had mountains of credit card debt. They had automobile loans. They had student loans. They were not going ``belly-up'' because of payday loans. DoD's principal recommendation is to reduce the maximum permissible charge on loans to 36 percent, which is below the lender's marginal cost of producing the type of credit that the payday advance industry provides. The effect of that cap would be to drive legitimate regulated lenders out of the market and to compel borrowers to deal with illegal lenders such as overseas lenders. Those lenders will just as likely pursue illegal collection methods when the time comes to collect the loan. There are many other approaches to dealing with it. Our trade association, the CFSA, has proposed alternative approaches to the DoD, and for the most part, we have been spurned, but we look forward to having a dialog with the Defense Department and to working these matters out. Thank you very much for your time and for your patience. I look forward to answering your questions. Senator Shelby. Thank you, Mr. Miller. Professor Peterson. STATEMENT OF CHRISTOPHER L. PETERSON, ASSISTANT PROFESSOR OF LAW, LEVIN COLLEGE OF LAW, UNIVERSITY OF FLORIDA Mr. Peterson. Thank you, Mr. Chairman, Ranking Member Sarbanes, and other members of the Committee. It is a real honor and a privilege for me to get to come and share some thoughts about this with you today. I spent a significant chunk of my life writing this study that Senator Dole showed some maps from along with my co- author, Professor Graves, and what we did is we looked at 109 military bases around the country and the State that those bases were in, and we analyzed every location of every payday lender in all of those States and every bank location in all of those States. Senator Shelby. Do we have the study? Have you furnished that to the staff? Mr. Peterson. Sure. Yes. I believe I have, but it is around. It is right here in the Ohio State Law Journal. Go Buckeyes. What we looked at were all the counties and all the ZIP Codes, and what we came up with was I think pretty irrefutable statistical evidence suggesting that payday lenders cluster around military bases, targeting military personnel. There are a lot of reasons for that. I think some of them Admiral Abbot and Dr. Chu explained, but I really don't think there is any doubt about that. The one State that we didn't find that, which was really sort of troubling to me when I realized it, was New York. Fort Drum in upstate New York, when we started trying to get the data, we couldn't find any payday lenders up there. It troubled me so much that in the middle of January, I got on an airplane and flew all the way up there to the Canadian border, which is tough for a Florida boy. I drove around the entire base, every street to make sure that our data was right on this, and there were a couple that had sort of snuck up and were disguising it, but the Attorney General is shutting them down. The reason, clearly, was because New York had stuck by their guns in their traditional interest cap of 25 percent. That brings me to a historical point that I would like to make, that predatory lending to military personnel is nothing new. I have done a lot of reading of history, and it has happened in the Chinese Empire, in the Roman Empire. The first succession from the Roman Republic was a riot that spread all throughout the Roman society over abusive loans to military veterans. The Romans figured that out. Their emblems are here still adorning our room, and they put a 12 percent interest rate cap on. They were the first to do it. The very first comprehensive law in the history of our species, the Code of Hammurabi from 1750 B.C., the legend was that Hummurabi ascended the mountain where Shamash, the god of justice gave him this comprehensive code and they chiseled in on a rock, and we still have it. It is in the Louvre in Paris. It has an interest rate cap in it of 20 percent for loans made in bulk silver and 30 percent for loans in grain. This is before we figured out how to coin money. And it actually, if you translate it, it is almost exactly the same as the 18 percent interest rate cap that happens to still be on the books, although not enforced particularly well, in the great State of Florida. So the first law in still in the State of Florida now, but we have fallen away from that. Throughout the history of our country, our republic, we have always had interest rate caps. Thomas Jefferson and George Washington would have been pretty upset if there were lenders lending at 500 percent to the Continental Army. They would not have tolerated that, those guys. And I don't think General Eisenhower would have in World War II. Throughout the Great Depression and World War II, this was an illegal practice. We would not tolerate that. It is only in the past 15 years or so, for the first time in the history of our republic, that we have come to the point where we could say something along the lines that the Congress will not stand up and stop 500 percent loans to the Marine Corps. Well, that is a very peculiar and troubling thing to me. And last, an economic point: I note that there is a profound difference between market competition, of which I believe in--free market is very important, but there is a difference between market competition and market anarchy. We don't allow unregulated markets in any market. If somebody wants to sell weapons-grade plutonium, we won't tolerate that. If they want to sell child pornography, we don't tolerate that. If they want to sell 500 percent interest rate, loans to the Marine Corps, I don't think that we should tolerate that. I think it is a bad idea for our national security and it is a bad idea for ourselves in our own moral sense of who we want to be as a country. So with respect, I would strongly urge the Committee and Senators to support providing some national limit to what I think is a tragedy. These soldiers are going over to Iraq and they are bleeding out on the desert floor, and the Congress can't come up with a cap for the loans that they are being charged? It is time for us to do something about it. Thank you. Senator Shelby. Thank you, Professor. I have a number of questions that I am going to submit them for the record to all of you, because we have just now been notified we have a vote on the floor and we are going to have to leave here in just a few minutes. I want to recognize Senator Sarbanes. He has been in another meeting. STATEMENT OF SENATOR PAUL S. SARBANES Senator Sarbanes. Thank you very much, Mr. Chairman. I will be very brief. I just want to make some comments. First of all, I want to thank the panel for their contributions. I want to commend Chairman Shelby for holding this hearing on the ''Defense Department's Report on Predatory Lending Practices Directed at Members of the Armed Forces and Their Dependents``. In my view, it portrays clearly unacceptable practices on the part of a number of short-term lenders. This report is a result of an amendment that Senator Dole included in the National Defense Authorization Act mandating a study on predatory lending. I think it provides a disturbing insight into how predatory lenders target military personnel. It details the disastrous effects of high-cost predatory lending on our military and outlines actions taken by the military to address predatory lending and makes recommendation for further statutory protection. There are approximately 1.3 million members of the U.S. Armed Forces. Even 10 percent of those would be 130,000 people. These men and women play an important role in our defense, obviously, and the view that a number of these practices are directed at them in a whole range of ways, I think is a matter for the considerable concern. The DoD report cites a study showing that service members are three to four times more likely, actually, to have payday loan than are civilians. They are not typically based on the borrower's ability to pay. I was interested in Mr. Miller's comment that this is the loan of last resort, that they have been through all these other things showing a weakened financial condition and everything else. Why are you making this loan to someone who has got that kind of financial trouble? They carry annualized interest rates often of more than 400 percent, often extended through rollovers, which, of course, include additional high fees, no payment of the principal. Service members get trapped in the seemingly never ending cycle of debt. I have some examples here, but due to the shortage of time, I won't put those in the record. I do want to commend the military for its efforts to address these predatory lending practices. I don't think there is sufficient protection for service members. And, Mr. Chairman, I hope that we will be able to take a very careful look at the recommendations of the DoD report and other proposals that have been put forward in order to try to get this situation under control. Our men and women in the armed forces deserve better than this. Thank you. Senator Shelby. Senator Martinez. I know you have a Floridian here. Senator Martinez. I know, and I want to just welcome both of my Floridian friends here and commend both of you for your testimony. I know Senator Dole wanted me to welcome you. Senator Shelby. Floridians. I said one. Senator Martinez. There are two, actually. Senator Shelby. You stacked the panel, didn't you? No, you didn't. Senator Martinez. Well, we are concerned about this in Florida, sir. We have got Mayport and NAS in Jacksonville. They are very important to our national defense, and I know we have got to go vote. So I will be very brief, but I just can't help but ask Mr. Miller. I just want you to know that I am not impressed that you are only destroying the financial lives of a small percentage of our service members; but understanding that, this agreement, what is the average percentage rate of your lenders in this business of average payday loans? I believe we heard a 390 percent to 906 percent. Do you dispute those figures? Mr. Miller. I think there are probably relatively few operators who are in the 900 percent range. Senator Martinez. Where would most of them be? Five hundred or so? Mr. Miller. Standard pricing for a payday loan would be a finance charge of approximately $15 for a 2-week, $100 loan. Senator Martinez. Just do it in a percentage, in an APR. What would be the APR rate? We are all grown-ups and know what that means. Mr. Miller. That would be equivalent to a 398 percent APR or 390 percent APR. Senator Martinez. What is your evidence that the cost of lending that--that is before they get in trouble, by the way, and could escalate then further with penalties and fees and so forth, but what is the financial basis for a 390 percent lending rate? Is there a sound basis that you can say these loans are so risky that we have to charge that high a rate? Because you on the other hand were telling us that very few actually are bad loans, that most of them are not bad loans. Mr. Miller. Senator, that is a very good question, and I am happy to respond to it. The principal costs associated with making payday loans are real estate and personnel costs. They are not credit-related costs. The costs of keeping stores open generally on a 24-7 basis in some of the larger areas, of processing numerous very small transactions that involve a tremendous amount of back office activity is what generates the costs associated with this business, and there is a study done by two researchers at the FDIC that substantiates that the costs are primarily office-related costs rather than credit- related costs. Senator Martinez. But you wouldn't disagree that a 390 percent loan is unconscionable? Mr. Miller. I would disagree with you. Senator Martinez. You would disagree with me? That is a fair rate of lending and that that is not going to drive someone to financial ruin if they are paying that kind of an interest rate, particularly when they are working in a fairly modest salary scale in the first place? Mr. Miller. Well, I respectfully disagree with you. Senator Martinez. Do you think an 18-year-old taking a loan at 390 percent is conscionable? You can look at me with a straight face and tell me that that is, in fact, what you believe? Mr. Miller. I believe that used for its intended short-term purpose, that loan can be very helpful to bridge a financial problem that an 18-year-old might have. Senator Martinez. Have you ever gone through a credit counseling place where people counsel folks on credit counseling and how to avoid financial difficulties such as that? Do you think anyone ever in a credit counseling session would recommend someone to go get yourself a loan with a 390 percent? Mr. Miller. I don't know. I am not familiar with how credit counseling operations act. Senator Martinez. You should become familiar. Your organization should become familiar, because our servicemen and women need to be become familiar, and part of avoiding this kind of unconscionable problem is for them to be better informed on issues of financial literacy, and I think that is one of the areas we really show focus, but I also don't understand how a credible organization purporting to serve the public interest could suggest that loans at those rates of interest are really in the best interest of our servicemen and women. Thank you. Senator Shelby. Senator Carper. Senator Carper. Thank you, Mr. Chairman. I spent some time at some of those bases that Senator mentioned, Jacksonville, Mayport, those places. I was in the Navy for 23 years and active in the Reserves, and one of the things I was struck by in the training that I had and I suspect the training that given to our enlisted personnel down in Orlando and other places around the country, that apparently we don't do a very good job of literacy training, financial literacy training, for the officers that were coming up and I am sure for enlisted men and women as well. Let me just ask our friends here from the DoD and maybe Admiral Abbot your own thoughts on the kind of financial literacy training we are providing to people that are in the armed services, especially with the enlisted ranks. Admiral Abbot. Senator, the Navy and I believe all the services are doing a job good job at financial literacy training and it is getting better. It starts at boot camp and it continues on into the specialty schools afterwards. They have to start off at square one. As has been mentioned before, a lot of these young people haven't ever had a paycheck, haven't had a checking account. They are required to have a checking account in order to have their pay deposited. You have to start off by teaching them how to read an earning statement and how to balance a checkbook, and then they move on in subsequent sessions to give them more of an education on handling the basics of life, of buying an automobile and housing and paying for groceries and dealing with the family; but it requires a continuum of education and repetition, and the Navy and the Marine Corps I know are focused on that and getting better. Senator Carper. Good. I know when I got to the Naval Air Station in Pensacola when I was a brand new enlisted man, one of the first things I did was I opened up an account at the Navy Federal Credit Union right there in Pensacola and used that to buy a car, and I know a lot of my colleagues did the same kind of thing. We have Federal Credit Unions. We have banks all over the country as well. The access to credit unions on the military base is pretty good, and the idea is that an enlisted man or woman or an officer can go into a credit union or a local community bank and get access to pretty low rates, especially in those credit unions. I am not sure why that are not better used. The other thing I would say--Senator Martinez has gone. What I find especially objectionable and concerning with respect to the kinds of loans that we are talking about here today is not so much they are paying $15 to get a loan for a transaction cost. The real problem is when the loans roll over and over and over and extend beyond a week or two. That is where the real problem lies and that is where I hope that we will focus our attention and the industry will focus its attention. The other thing is, Mr. Chairman, my hope is that when we go to the next year that we can come back and revisit this issue in the context of predatory lending in a broader sense that is going on in this country. I am very concerned, and I know you are in Alabama and other States, and this is one that we need to just keep our eye on the ball and do something responsible and soon. Thank you. Senator Shelby. We have a vote. We have got to conclude the panel. We thank you for your contribution. We appreciate what you are doing. This is something that I believe we have to address. Thank you very much. The Committee is adjourned. [Whereupon, at 11:43 a.m., the hearing was adjourned.] [Prepared statements, responses to written questions, and additional material supplied for the record follow:] PREPARED STATEMENT OF SENATOR TIM JOHNSON Thank you, Mr. Chairman and Ranking Member Sarbanes. I appreciate that the Committee is meeting today to address this issue of critical importance. Thousands of our military personnel are currently serving in harm's way in defense of this country. In South Dakota, over 3,800 military personnel and civilians are stationed at Ellsworth Air Force Base, 300 of which recently deployed in support of the Global War on Terror. As the father of an active-duty soldier who has served combat tours in Iraq and Afghanistan, I am acutely aware of the very personal challenges facing our men and women in uniform. I am proud of their courage and professionalism, and grateful for their service to our country. Congress has an obligation to ensure each soldier is combat ready before deployment. This includes equipping our troops with body armor, up-armored Humvees, night vision goggles, and other essential life- saving equipment. But our commitment to our servicemembers does not just involve protecting their personal safety. I hear much too often that our military personnel and their families are not equipped with the tools to adequately manage their personal finances. Financial stress can affect any soldier regardless of their marital or deployment status--in particular, younger or lower-ranked enlisted personnel. We all sympathize with the soldier who incurs debt because he was blindsided by unexpected emergencies, auto repairs, personal or family illness or is just struggling with basic living expenses. To ensure our servicemembers are capable of addressing their financial needs, we must first provide them with adequate compensation. To that end, I have consistently supported robust pay raises each year in the defense appropriations bill. At the same time, we must help our soldiers exercise financial responsibility. This has proven to be a challenge for many Americans and financial literacy remains a critical issue of importance. I share DoD's concern about servicemembers falling into a ``cycle of debt'' whether through inappropriate use of credit cards, payday loans, or other forms of credit, and I believe Congress and DoD must work together to improve the financial literacy of our servicemembers, and crack down on abusive and predatory practices by any lender. It is essential that military personnel and their families have access to information and assistance and that DoD's commitment to financial readiness extends from the top down and is consistent throughout all branches. I am concerned that DoD's Financial Readiness Campaign that began in 2003 has not been fully embraced by all of the services. I look forward to hearing from our witnesses today, and I am especially interested in hearing from Secretary Chu regarding the report's findings and recommendations. I am concerned that DoD is recommending a federal ceiling on the cost of credit to military borrowers and their families, capping the APR at 36%. This would, in effect, ban short term, high APR loans, but would do nothing to address predatory lending by ``military lenders'' that specifically target 100% of their loans to servicemembers, DoD employees, and retired servicemembers.While well intentioned, I am not convinced that this approach would solve the larger problem. It is very clear that military personnel like many other consumers have a real and legitimate need for short-term, small denomination credit products. And we must remain mindful of that fact as we address the issue of predatory lending. There are clear differences of opinion as to how those products should be structured, and how they should be delivered. I have a real concern that if these types of financial services products are pushed outside of a regulated environment or banned outright, it will open the door for abuse and inevitably result in less consumer protection. There is something to be said for striking the right balance between regulation, consumer protection, and effectively meeting consumers' credit needs especially those of our service men and women. Our servicemembers, like all other consumers, should be afforded the benefit and opportunity to choose the financial services and products that best suit their needs. Additionally, the financial services industry must continue to develop and offer meaningful products, including short term credit products that will meet the needs of the military while also protecting all consumers, including servicemembers, from potentially abusive and predatory practices by lenders. And it is equally critical that the regulatory agencies foster a regulatory environment that supports short-term credit products and one in which such products can thrive while providing the greatest benefit to the consumer. As we continue to address the issue of predatory lending to the military, the primary goal should be to develop meaningful solutions that will offer the greatest protections to our servicemembers, while avoiding measures that carry the potential for the unintended consequence of driving servicemembers into potentially abusive, and far more expensive forms of credit. Mr. Chairman, I would like to include with my statement a cost comparison chart of payday loan alternatives. [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Consumer groups and academic researchers comment on the cost of payday advance versus its alternatives: ``We find that fixed operating costs and loan losses justify a large part of the high APR charged on payday advance loans . . . These operating costs lie in the range of [payday] advance fees, suggesting that payday loans may not necessarily yield extraordinary profits.''-- Payday Lending: Do the Costs Justify the Price, Center for Financial Research, Federal Deposit Insurance Corporation, 2005 ``Critics also contend that [overdraft] bounce protection fees, as high as $37 per transaction, are little more than high-priced credit. `If a bank lends you $100 and charges you a $20 fee--and then you pay the money back in two weeks--that's an annualized interest rate of 520%,' notes Jean Ann Fox, director for consumer protection at the Consumer Federation of America in Washington. `It's worse than a payday loan'.''--Business Week, May 2, 2005 ``Unlike payday lending programs, the extraordinarily high APRs in fee-based overdraft programs are never disclosed as such, and none of the other consumer protections are provided. Moreover, fee-based overdraft programs are aimed at the very same customers that payday lenders are seeking . . . and the costs rival or exceed those of payday lending.''--Comment letter to Board of Governors of the Federal Reserve System from 90 consumer group organizational signators, January 27, 2003 ``Interviews and industry survey indicate that payday loan customers do make a cost analysis in comparing the price of a payday loan with the alternative costs of bouncing a check and/or incurring late fees . . . When used on a recurring basis for small amounts, the annualized percentage rate for fee-based bounce protection far exceeds the APRs associated with payday loans.''--Low-Cost Payday Loans: Opportunities and Obstacles, Annie Casey Foundation Report, June 2005 ``Courtesy pay is not marketed as an alternative to a payday loan, but it serves a similar function when used as credit. Credit unions charge fees ranging from $15 to $35 to cover an overdraft.''--Credit Union Payday Loan Alternatives, National Association of Community Credit Unions, December 2005 ______ PREPARED STATEMENT OF DAVID S.C. CHU Under Secretary for Personnel and Readiness, Department of Defense September 14, 2006 Mr. Chairman and members of the committee, it is a privilege to testify on the predatory lending DoD report. This report, required by Section 579 of the Fiscal Year 2006 National Defense Authorization Act, reviews the impact of lending practices that prey on Service members and their families, the efforts of the Department to ameliorate those impacts, and recommendations for legislative remedies to assist our military families. This Administration recognizes personal finance as a primary aspect of ``quality of life'' for Service members and their families. It has included payday lending as one of ten key issues requiring the assistance of state governments to protect their well-being. Permit me to summarize how we reached this conclusion as context for the report. Social Compact In 2001, the President directed the Secretary of Defense to ``undertake a review of measures for improving the quality of life for our military personnel.'' We collaborated with the Military Services to develop a ``Social Compact'' that describes the reciprocal nature of the commitments among Service members (to the defense of the nation), their families (to being part of that commitment) and the Department of Defense (to caring for their well-being). This bottom-up review articulated the linkage between quality of life programs as a human capital management tool and the strategic goal of the Department-- military readiness. The Social Compact lays out long term strategic-level plans for key aspects of quality of life, of which financial readiness is one. The long-term vision for financial readiness is to develop a military culture that values financial competency and responsible financial behavior. Financial readiness is equally important as other military skills and attributes. Financially ready Service members seek out information to be proficient, and seek assistance when they encounter difficulty. Financially ready Service members would not seek to hide their financial problems by continuing to build debt to the point of destroying their finances, adversely impacting their family life and jeopardizing their military careers. The goals associated with this strategic plan focus on the benefits of financial readiness to the individual and to the Department. We seek to:Reduce the stresses related to financial problems-- the stress of out-of-control debt that can impact the performance of Service members and their family's quality of life. Increase savings--a personal and family goal of motivated Service members to control their finances and plan and prepare for their futures. Decrease dependence on high interest rate or unsecured debt--the vulnerability associated with living from paycheck to paycheck. Decrease the prevalence of predatory practices-- protection from financial practices that seek to deceive Service members or that take advantage of them at a moment of vulnerability. These goals establish an environment and culture in which Service members can feel secure about their finances and are ready to engage in the military mission. To accomplish these goals, Service members need to be competent in dealing with finances, protected from financial predators and motivated to achieve financial readiness. The Department uses awareness media, education programs and assistance through counseling to help Service members conform their behavior to the goals. But these tools do not protect them from predators as they develop their financial competency. Financial Education Policy and Metrics The Military Services are expected to provide instruction and information to meet the needs of Service members and their families. To this end, the Department published in November 2004: DoD Instruction 1342.27, Personal Financial Management Programs for Service Member. As outlined in the Government Accountability Office Report 05-348, each Military Service tailors its programs for training first-term Service members on the basics of personal finance. These programs vary in terms of venue and duration, but all Military Service programs must cover the same core topics to the level of competency necessary for first-term Service members to achieve financial readiness. The Department monitors the ability of Service members to pay their bills on time, as a reflection of their financial competency and ability to apply basic financial principles. The Department has tracked the performance of the first four enlisted ranks as a leading indicator for the rest of the force. Since 2002, these Service members' self-reported assessments indicate they are paying better attention to keeping up with their monthly payments (graph at Table 1). [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] The Department is adding another indicator this year to the performance measure for personal finance: enrollment in the Thrift Savings Plan. I review these metrics quarterly along with metrics that measure other important aspects of Service member and family quality of life. The Department is developing an evaluation tool that measures first-term Service members' ability to apply basic principles to scenarios they may encounter. This tool will standardize the evaluation process throughout the Military Services and will help ensure that Service members can apply the instruction they receive. Financial Readiness Campaign To assist the Military Services in delivering financial messages, the Department established the Financial Readiness Campaign in May 2003. It is now supported by 26 nonprofit organizations and federal agencies. In the past three years, Service members have benefited from the materials and assistance from: Air Force Aid Society (AFAS)--provides financial counseling and emergency monetary support for airmen in need. American Savings Education Council (ASEC)--provides over 60 award winning public service announcements that have been shown on American Forces Radio and Television Service (AFRTS). Army Emergency Relief (AER)--provides counseling, education programs and emergency financial relief to soldiers. Consumer Federation of America (CFA)--established the ``Military Saves Campaign'' as part of the CFA ``America Saves'' initiative, to encourage Service members to establish emergency savings and invest in the Thrift Savings Program. Association of Military Banks of America (AMBA)-- AMBA members provide educational programs to supplement programs offered by the Military Services, as part of the responsibility for residing on military installations. Additionally, AMBA assists the CFA in deploying the Military Saves Campaign. Council of Better Business Bureaus--works with the Military Services to assist Service members and their families with a variety of consumer-related issues, along with providing education programs upon request. Defense Credit Union Council (DCUC)--members of DCUC provide education programs to supplement programs offered by the Military Services, and assist in the deployment of Military Saves. Federal Deposit Insurance Corporation (FDIC)--made available their ``Money Smart'' curriculum and train-the- trainer program to the Military Services, as well as AMBA and DCUC members. Federal Reserve Board--studies the impact of the AER sponsored education course conducted at Fort Bliss, TX, to determine the effect of training on financial behavior. Federal Trade Commission (FTC)--provides most widely disseminated materials available outside of DoD, on various topics concerning consumer protection. Financial Literacy and Education Commission (FLEC)--consolidates the materials available through the federal agencies via the ``www.mymoney.gov'' website, and accompanying toll-free number. It is widely advertised and linked to DoD and Military Service websites concerning personal finance. InCharge Institute--provides access to credit counseling/debt management, and publishes a quarterly magazine ``Military Money'' in partnership with the National Military Family Association (NMFA). The magazine is designed primarily to reach out to military spouses on a variety of financial, spouse and family life topics. To accompany the magazine, InCharge also provides public service announcements called the ``Military Money Minute,'' on AFRTS, covering helpful financial tips on military pay, deployment preparation, etc. Institute for Consumer Financial Education--helps individuals and counselors with credit questions and understanding credit reports. Moneywise with Kelvin Boston--provides access to his syndicated television program for broadcast on AFRTS. National Association for Credit Counseling-- partners with military installations to provide educational classes and credit counseling services. National Association of Securities Dealers (NASD) Foundation--funds a multi-year awareness and education program to supplement the programs provided by the Military Services. Included in the program are multimedia public service announcements (through sources such as AFRTS, Military Times magazines and local radio); an interactive website; sponsorship of a scholarship program for military spouses (through partnership with NMFA) to accredit them as Financial Counselors in return for volunteer hours in military communities; and education for Military Service Financial Counselors and Educators. National Endowment for Financial Education (NEFE)-- provides access to its ``Project for Financial Independence,'' to severely injured Service members, members of the Guard and Reserve, and their families. The Project for Financial Independence connects Certified Financial Planners with Service members (geographically separated from an active duty military installation where they can obtain financial counseling) to accomplish pro bono financial planning. National Military Family Association (NMFA)-- partners with several other organizations to facilitate reaching military spouses, a primary target of the Financial Readiness Campaign. Navy-Marine Corps Relief Society--provides education, counseling and emergency financial support for sailors and Marines in need. Securities and Exchange Commission--provides seminars at military installations, along with investor education materials in libraries on military installations. These partnerships allow the Military Services to choose the programs that can best supplement the education, awareness and counseling services they provide. Education and Predatory Lending Predatory lending practices are covered as topics in initial financial education training and in refresher courses offered at the military installations. As described in the report, the Military Services have provided over 11,800 classes and trained over 324,000 Service members (approximately 24 percent of the force), as well as 19,400 family members. In addition to these classes, Financial Readiness Campaign partner organizations conducted 1,300 classes for a total of 60,600 Service members and family members. These classes were primarily provided by the staff of banks and credit unions located on military installations. These institutions provide these classes as part of their responsibilities outlined in the DoD Financial Management Regulation. Other organizations involved include local Credit Counseling Agencies, state financial regulatory agencies, the InCharge Institute and the NASD Foundation. The Military Service financial educators, along with partner organizations, have also distributed over 223,000 brochures and pamphlets, with the Military Services and Federal Trade Commission the primary provider of these products. In addition, Military Money Magazine has run several articles, including two cover article editions, on predatory lending. The free distribution of the magazine is through military commissaries, family support centers, other service agencies on the installation. The magazine is sent to residents on the military installations and home addresses off the installation upon request. Approximately 250,000 copies are distributed per quarter. Predatory Lending Practices Considered The lending practices covered in education programs parallel those covered in the report: payday loans, Internet loans, military installment loans, tax refund anticipation loans and rent-to-own programs. Education programs also cover budgeting, the appropriate use of credit, credit cards, and other financial services. The loans covered in the report include those with high interest rates, little or no responsible underwriting, loan flipping or repeat renewals that ensure profit without significant payment of principal, loan packing with high cost ancillary products whose cost is not included in computing interest rates, a non-mortgage loan structure or terms that transform these loans into the equivalent of highly secured transactions; and loans that involve fraud or deception, waiver of meaningful legal redress, or operation outside of state usury or small loan protection law or regulation. These characteristics strip earnings or savings from the borrower, place the borrower's key assets at undue risk, potentially deepen the borrower's financial shortfall and trap the borrower in a cycle of debt. These loans take advantage of the borrower's lack of understanding, vulnerability or both. The types of loans included in the report were chosen as a result of feedback from military financial counselors and legal assistance attorneys who have provided counsel to Service members with financial problems. The Military Services and Military Aid Societies provided 3,393 case studies providing information about incidents where Service members have requested assistance with their lending problems. These case studies showed that the typical scenario involved indebtedness resulting from a lack of financial control, a financial emergency, or both. Many of these cases involved military borrowers who owed money to installment lenders and payday lenders that created a cycle of debt. Efforts to Curb the Prevalence and Impact of Predatory Loans The Department has attempted to use the processes and resources available within the Department to curb the prevalence of payday lenders. But the Armed Forces Disciplinary Control Board (AFDCB) and command policy are not adequate to address the issue. The AFDCB is designed to address commercial entities providing services that are a detriment to good order and discipline, and in violation of federal or state statute. Without appropriate statute, commanders and AFDCBs have difficulty citing payday lenders as the focus of remedial action. Moreover, in states that authorize payday lending, AFDCBs must establish their own local guidelines in addition to the provisions of state law, ensure all affected businesses are aware of these new rules, and then require these businesses to comply. The Department has considered establishing guidelines that would ameliorate the concerns posed by lenders characterized above, but establishing these policies within DoD poses legal problems and raises the potential for troublesome litigation against the Department. There is no established authority for DoD to make rules governing off-base private business dealings. Military installment companies have also attempted to evade state usury limits and oversight. In 2005, the California Department of Corporations considered a complaint filed against one such company, alleging it operates without a license, charges usurious interest, collects prepaid finance charges which are not permitted in California, contracts for excessive dishonored check fees, and automatically adds various forms of credit insurance to loan agreements (98 percent of contracts include ``voluntary'' insurance purchases). Internet lenders claim jurisdiction in states with lax protections and unlimited rates and often attempt to bypass the state credit, usury or payday loan laws of the state where the borrower receives the loan. All military installment lenders cited in the report listed Nevada as their home state. State regulators have successfully enforced home- state law against Internet payday lenders making loans to consumers in their states in Colorado, New York, Massachusetts, Kansas, Pennsylvania and the District of Columbia. The scope and methods of payday, military installment and Internet lenders are outside the capability of the Department to place ``off limits'' as a way of dealing with good order and discipline concerns associated with these lenders' practices. It is also unrealistic to believe that the Department can adequately control these concerns through education alone. The recent survey accomplished by the Consumer Credit Research Foundation stated that the primary reason Service members choose payday loans is because they are convenient. Certainly, obtaining ``fast cash'' from a payday lender is far more convenient than debt counseling or addressing inherent overspending that creates situations where sub-prime loans are needed. The Department seeks your assistance in helping Service members find convenient, less costly options that build their financial future. Alternatives The Department would prefer Service members and their families seek out the alternatives available through Military Aid Societies, military banks and defense credit unions. These institutions have established programs and products designed to help Service members and their families resolve their financial crises, rebuild their credit and establish savings. The Military Aid Societies are strong advocates for limiting the cost associated with credit and for developing alternative products by financial institutions for Service members who cannot otherwise qualify for loans. Within their own resources they provided $87.3 million in no-cost loans and grants to Service members and their families in 2005. As described in the report, many military banks and defense credit unions have developed products and services to assist Service members recover from their financial problems. These alternative programs require Service members to commit to changing their financial behavior. The Department is seeking this outcome in its awareness campaigns, education programs, and the counseling services it offers, and supports reasonable alternative programs that help Service members recover their financial well-being. Legislative Recommendations For the reasons outlined above, the Department is requesting the Congress' assistance in establishing limits that will help Service members seek out alternatives capable of motivating them to change their financial behavior. The report outlines several recommendations that are designed to curb the corrosive nature of predatory loans. Each recommendation seeks to limit the abuses articulated in the report: Require that unambiguous and uniform price disclosures be given to all Service members and family members with regard to any extension of credit (excluding mortgage lending). All fees, charges, insurance premiums and ancillary products sold with any extension of credit should be included within the definition of finance charge for the computation and disclosure of the annual percentage rate (APR) for all loans made to military borrowers. As stated in the report, some loan companies pack loans with additional fees not included in the APR calculation. Additionally, many Internet lenders do not disclose their interest rates and fees on their websites, and are only disclosed after the borrower has committed to taking the loan. Require a federal ceiling on the cost of credit to military borrowers, capping the APR to prevent any lenders from imposing usurious rates. Lenders should be prohibited from directly or indirectly imposing, charging, or collecting rates in excess of 36 percent APR with regard to extensions of credit made to Service members. This APR is expected to cover all cost elements associated with the extension of credit. This limitation is expected to affect all lenders referenced in the report (payday, installment, Internet, tax refund anticipation, and rent-to-own). This limit may affect payday lenders, but by their own statistics, the military represent only one to four percent of their market. True, a 36 percent APR may preclude some Service members from obtaining credit. The Department believes Service members who require loans with interest rates above 36 percent APR should seek assistance and not consider further increasing their debt load. The 36 percent APR limit creates a barrier for installment lenders to refrain from packing fees and premiums onto the base interest rate they charge for a loan. The limit of 36 percent APR is considered appropriate, since it mirrors the limitations found in several states for their small loan products. For those states where the cap is lower than 36 percent, the state limit and consumer protections would apply. Prohibit lenders from extending credit to Service members and family members without due regard for the Service member's ability to repay. Perhaps the most important limit that can be applied is assuring Service members are not provided loans they cannot repay in a timely manner. If they are in situations that require them to take loans to meet short-term obligations without considering their short- and long-term ability to repay, then they should be obtaining counseling and assistance to restructure their debt and develop long-term budgets that can help them recover from their financial concerns. Such a prohibition would also limit the use of high interest credit to make impulse and unnecessary purchases, since these outlays push Service members and their families deeper into debt. Lenders that require checks, access to bank accounts or car titles to secure obligations consider these essential assets to mitigate their risk and do not consider the ability of the borrower to repay the loan. Lenders that require allotments to repay loans deliver their products under the same expectations. Access to essential assets places the borrower in a position of undue duress, with no options but to pay according to the schedule, even if the borrower has no capability of doing so. Again, this is not of concern to the lender holding these assets. If this restriction precludes some Service members from obtaining credit, then they may consider the alternatives--counseling, assistance and a change in financial behavior. Prohibit provisions in loan contracts that require Service members and family members to waive their rights to take legal action. Service members should maintain full legal recourse against unscrupulous lenders. Loan contracts to Service members should not include mandatory arbitration clauses or onerous notice provisions, and should not require the Service member to waive his or her right of recourse, such as the right to participate in a plaintiff class. Waiver is not a matter of ``choice'' in take-it-or-leave-it contracts of adhesion. To the contrary, Service members should be given the opportunity to hold lenders accountable for situations where they have violated their rights. Prohibit contract clauses that require Service members to waive any special legal protections afforded to them. These proposed protections, and those provided to Service members through the Servicemembers Civil Relief Act, were intended to strengthen our national defense by enabling Service members to devote their entire energy to the defense needs of the Nation. In the interest of our national defense, such protections should not be subjected to waiver (other than in circumstances stated in the Servicemembers Civil Relief Act), in writing or otherwise. Prohibit states from discriminating against Service members and family members stationed within their borders, and prohibit lenders from making loans to Service members that violate consumer protections of the state in which their base is located. States should be prohibited from discriminating against Service members stationed within their borders and should be required to assure that such Service members are entitled to and receive the benefit of all protections offered to citizens of the state, including regulation of lenders located in the state or that provide loans via the Internet to Service members stationed there. States have a vested interest in assuring the financial safety and stability of Service members stationed within their borders. States should be prohibited from authorizing predatory lenders to treat ``non- resident'' Service members stationed within the state's borders differently than the state would permit that lender to treat in-state residents. Lenders should be prohibited from charging Service members stationed within a state an APR higher than the legal limit for residents of the state, and should also be prohibited from violating any other consumer lending protections for residents of the state in which the base is located. Conclusion The Department appreciates the opportunity to report to the Congress on the issue of predatory lending. The report outlines the prevalence around military installations of payday lenders and the overt marketing of some installment and Internet lenders. The report and this testimony provide an overview of the efforts within the Department to educate, inform and influence Service members and their families to take control of their finances, build wealth and escape the cycle of debt--for their own well-being and to enhance their military readiness. The Department's strategic plan seeks to increase savings and decrease dependence on debt. The strategic plan also focuses on improving the protection afforded Service members and their families in the market place--again to help assure their military readiness. The vision for personal finance in the Department is to develop a military culture that values financial competency and responsible financial behavior, in other words, a system that values Service members addressing their financial problems, rather than perpetuating them through high interest loans. Service members inherently understand that limits on interest rates are appropriate, even if these limits would decrease the availability of credit. When asked in a recent survey conducted by the Consumer Credit Research Foundation if Service members strongly/somewhat agree or disagree with the statement: ``The government should limit the interest rates that lenders can charge even if it means fewer people will be able to get credit,'' over 74 percent of the Service members surveyed agreed with the statement (with over 40 percent strongly agreeing). Similarly when asked their position on the statement ``There is too much credit available today,'' 75 percent of Service members not using payday loans and 63 percent of Service members using payday loans agreed (with 51 percent of non-users strongly agreeing). Service members agree that there should be limits. Commanders have made their positions known that limits should be established. This issue is an important part of the Department's social compact with commanders, Service members and their families, for their well-being and in support of military readiness. The Department asks for your assistance enacting the statutory language necessary to establish more effective limits. I thank you for this opportunity to share these concerns with you and the committee. The Department stands ready to assist the committee in developing effective limits on predatory lending. ______ [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] PREPARED STATEMENT OF ADMIRAL CHARLES S. ABBOT, RETIRED President and Chief Executive Officer, Navy-Marine Corps Relief Society September 14, 2006 Mr. Chairman, Senator Sarbanes, Members of the Committee on Banking, Housing, and Urban Affairs: I am honored to have the opportunity to testify this morning on the Department of Defense Report on Predatory Lending Practices Directed at Members of the Armed Forces and Their Dependents. The Navy-Marine Corps Relief Society was founded by President Theodore Roosevelt in 1904 to provide emergency financial assistance in the form of interest-free loans and grants to Sailors, Marines and their families. Through the decades, our organization has encountered various scams, but none as flagrant and serious as today's predatory lending industry. As President of the Society, I have personally witnessed the downward spiral of debt suffered by our Sailors, Marines and their families who seek financial assistance from predatory lenders. This industry says it does not target the military, but pick up any edition of Army, Navy, Air Force or Marine Corps Times and you'll see large, color advertisements with quotes like ``Our entire focus is on the U.S. Military''; or ``We are dedicated exclusively to military personnel.'' Instead of solving what may be temporary cash flow problems, these military families become overwhelmed and financially destroyed when they fall into the payday loan trap. The resulting low morale and pre-occupation with personal financial difficulties have a negative impact on military readiness. Their stories are heartwrenching: A 21-year-old Active Duty Sailor in Virginia Beach, with four dependents was involved in payday loans for two years. He started in March 2004 by taking out three payday loans to take his family to visit his grandfather who was diagnosed with cancer. By October 2005, he had four payday loans totaling $2,300 that cost him $600 every month just to roll over. To cover all of this, plus the bounced checks that it caused, he also borrowed from his Thrift Savings Plan and took out additional loans. He routinely paid late charges for his rent and car payments. An E-4 Active Duty Sailor with a wife and child in the Pacific Northwest was assisted by the Society with payment of 8 payday loans totaling $5,250 in July 2005. The service member took out two payday loans to make a down payment on a car. His two loans grew to four, six, then eight as he rolled them over and continued to make up his budget deficit by taking out additional payday loans. His electricity was cut off. The family had to go and live with relatives. His car was repossessed, sold at auction, and he currently owes $12,000 on that automobile. An E-6 Active Duty Sailor requested assistance in paying one month's mortgage ($1,870.38) payment. The service member stated he got behind on his mortgage when his wife's father became ill in Japan and he had to send her home to provide support. At that time, he turned to payday lenders. He took out 10 payday loans. During some months, he needed two payday loans to pay off earlier loans. He used his reenlistment bonus check to pay off the lenders and refinanced his house to pay off all of his other debts, but still required the Society's assistance to catch up on his mortgage. In Jacksonville, Florida, an E-5 Active Duty Sailor with a wife and three children accumulated nine payday loans totaling $5,409. The interest rate on these various loans varied from 121% to 421%. Having no credit cards, this military couple purchased furniture by using payday loans on the occasion of a permanent change of station move. There was a death in the family, followed by an ill relative. Each month they rolled the loans over, paying a fee to take out additional new loans. Finally, they sought assistance from our organization. These examples illustrate the ever-growing problem. Since August of 2001, the Society has assisted more than 5,500 Navy and Marine Corps clients victimized by predatory lenders in the amount of $2,597,881.19. The problem has been made more difficult to monitor and control now that these loans are easily accessible on the Internet. The web sites of these predators are as compelling as the neon signs that beckon unsuspecting Soldiers, Sailors, Airmen and Marines at establishments outside our military bases across the United States. If one reads the not so fine print at these web sites, one can learn that: At Checkmate, you can borrow $150 for three days with a finance charge equivalent to an Annual Percentage Rate (APR) of 3,220 percent; At Northway Financial Corporation, you can borrow $700 and the cost for your credit as a yearly rate is 758.08% APR; At ATMAdvance.com, you can borrow $170 for two weeks and the finance charge is equivalent to 460.16% APR; At Cashcall, you can borrow $5,000, and if you make scheduled payments only (120 payments over ten years), you will end up paying back more than $30,000. It is a grim picture that is brought into sharp focus when destitute military clients come to the military aid societies to ask for help. The Department of Defense report does a commendable job of documenting the problem and its impact on our military families. Equally commendable is the Department's aggressive education program designed to inform our military families about the perils of accepting financial assistance from predatory lenders. Education, consisting of effective personal financial management training, and an intensive, sustained publicity campaign can reduce the problems resulting from this legalized loan shark industry. It is an important first step, but education alone is not enough. Two additional requirements are critically important to solving this serious problem: responsible alternative sources of short term loans and, equally important, Federal legislation with teeth. There has been some success fighting this battle on the state level; but Federal legislation will be necessary that, at a minimum, provides the following: Caps the interest rate at 36% (to include all fees and insurance). Eliminates all loan roll overs or the ability for individuals to take out another loan to payoff the first loan which creates a vicious cycle of debt. Requires all payday lending businesses to belong to a PDL association that will serve as a clearing house to ensure clients don't have outstanding payday loans from other payday lenders, and allows monthly payment plans. Regulates on-line payday loan transactions. Thank you for focusing attention on this significant problem that affects military readiness and the lives of our men and women in uniform. I appreciate this opportunity to share my concerns with members of this committee. I hope that Congress will take prompt and effective action by drafting and passing effective anti-predatory lending legislation. I would be pleased to answer your questions. [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] PREPARED STATEMENT OF WILLIAM O. BROWN, JR. Associate Professor, Department of Accounting and Finance, Bryan School of Business and Economics, University of North Carolina September 14, 2006 Chairman Shelby, Senator Sarbanes and members of the Committee, thank you for the opportunity to speak to you today about the Department of Defense's report on lending practices directed at members of the armed forces. I am currently an Associate Professor in the Department of Accounting and Finance at the University of North Carolina at Greensboro and an economist by training. Over the past two years I have conducted research on payday lending, military compensation and the use of payday loans by military personal. In June of this year, I released a study with my colleague, Dr. Charles B. Cushman, Jr. from The George Washington University, of payday loan attitudes and usage among enlisted military personnel. Our results are cited on several occasions in the Department of Defense Report. I would like to take this opportunity to share with you some of our key findings and then raise some of my concerns about the methodology and analysis in the recent Department of Defense report. Our study surveyed U.S. enlisted personnel in four branches of the armed service regarding their attitudes toward, and usage of, short-term credit, including payday loans. Our survey is the first systematic survey of enlisted military personnel regarding their economic circumstances and attitudes toward short-term credit. Our analysis is based on empirical data that we collected through a random sample of enlisted military personnel who live near military bases in the United States. I want to briefly discuss some of our findings that I believe are relevant to the discussion today. Our results indicate that 13% of the 460 enlisted personnel that lived around military bases and responded to our survey had obtained payday loans in the previous year. It is important to note that these numbers are only for enlisted personnel and not all military personnel. It is suggested in the Department of Defense report and elsewhere that our number indicates a higher incidence of payday loan use by members of the military than the general population. However, our results do not provide such a comparison. One would need to compare enlisted personnel with a civilian population of similar age and income in order to make such a comparison. Otherwise, it is an apples to oranges comparison. Military borrowers report that they use payday loans to help pay bills, for auto and home repairs, family emergencies, relocations and other short term cash flow disruptions. This usage is very similar to that reported by civilian users of payday loans. The military enlisted personnel who have had a payday loan repay them more quickly than their civilian counterparts. Forty-nine percent of military payday loan borrowers have had two or fewer loans in the last 12 months, and 78% have had four or fewer loans. A 2001 study indicated that only 35% of civilian payday loan users had fewer than four loans. There is little evidence that military users of payday loans use these loans as a substitute for longer term credit. Given the relative low overall default rate for such loans in general, the claims of some opponents to payday lending that payday loan are a threat to military readiness appear unsupported. Payday loans are but one form of short-term credit available to military personnel. Bounced-check fees, late fees and utility reconnect fees can be and are often more costly than a payday loan. The majority of military survey respondents reported that they choose a payday loan for convenience related reasons. In addition some military personnel reported a lack of alternative options or lack of knowledge about alternative sources of short term loans indicating that the military may need to do a better job of educating enlisted personnel about short term credit options. As potential decisions regarding the cost and availability of consumer credit by members of the armed services are considered today, I sincerely believe that our comprehensive study, which I have only briefly reviewed here today, would be a valuable body of information to inform your views on this topic. For this reason, I am submitting a copy of our full study for the record today. As to the Department of Defense report, I have several points of concern and disagreement with the conclusions drawn. From anecdotes portrayed in the news media and mentioned in the Department of Defense report, one could have the impression that the majority of military personnel are deep in debt, the victims of aggressive payday loan issuers. I am sure many on the anecdotal stories are true. However, anecdotes only tell us what can happen in some cases, they fail to give us a bigger picture view or tell us how often these things happen. There is nothing in the Department of Defense report to give any indication of the prevalence of problem borrowing by military personnel. There are certainly some military personnel with financial problems and service members with financial problems may have obtained payday loans, but there is no evidence that payday loans are the cause rather than a symptom of these financial problems. This causation connection is completely missing in the Department of Defense report. Consumer make purchasing decisions based on a number of factors: price, convenience and opportunity being chief among them. This Department of Defense report fails to consider that service members either choose payday loans either because of they lack a better alternative or because they lack available information about better alternatives. In either case, the Department of Defense needs to do a better job of working with financial services firms to provide products that meet the needs of military personnel and educating military personnel about the availability and use of those products. Finally, the Department of Defense's recommendation to reduce the maximum permissible charge on payday loans to 36% would likely drive lenders out of the market. The problem is that marginal cost of providing small consumer loans is high. This is why so many banks and financial service firms fail to provide such products. When you take choices away from consumers, prices go up, not down. Again, members of the military have a demonstrated need for access to short-term credit. The likely impact of such a rule would be to make military personnel with short term credit needs significantly worse off. Mr. Chairman and members of this Committee, I thank you for the opportunity to appear before you and will be happy to answer any questions you may have. [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] PREPARED STATEMENT OF LYNN DRYSDALE Staff Attorney, Jacksonville Area Legal Aid September 14, 2006 Introduction Chairman and members of the Committee, thank you for the opportunity to speak in support of the Department of Defense Report on Predatory Lending Practices Directed at Members of the Armed Forces and Their Dependents and to illustrate the problems and proposed solutions in the report with the experiences of military families I represent in Florida. Since 1988, I have been a consumer protection attorney with Jacksonville Area Legal Aid, Inc. and represent low income consumers in Duval County. I am co-author of a law review article titled ``The Two- Tiered Consumer Financial Services Marketplace: The Fringe Banking System and its Challenge to Current Thinking About the Role of Usury Laws in Today's Society,'' published in the South Carolina Law Review in 2000. This widely quoted article covers the high cost loan products detailed in the Department of Defense report to Congress. I serve on the Jacksonville Bankruptcy Bar Association Board of Directors and have been a trainer for Judge Advocates, legal officers and Senior Leadership at Naval Air Station Jacksonville. Duval County, FL is home to Jacksonville Naval Air Station and Mayport Naval Station where about thirty thousand service members plus their families and retirees live and work. Over the years I have represented many of these Sailors and their dependents as well as veterans who have fallen victim to the predatory loan practices described in the DOD Report to Congress. Today I will use their stories to put a face on the problems identified in the Department of Defense report and to support the recommended solutions to those problems. Why military consumers are ideal customers for quick cash lenders Despite their moderate incomes, many Service members are young and financially inexperienced, with young families and tight budgets. They are attractive to lenders because their pay is certain, their residence is easy to find and they live in concentrated areas. They have stable and steady employment and, as members of the Armed Forces, unlike civilian borrowers, they are easy to collect from because the lender routinely contacts their employer pre-judgment. Service members must comply with the Uniform Code of Military Justice and could lose rank, miss opportunities for advancement in rank and pay, and could lose their jobs for failure to honor their debts. Military pay arrangements benefit lenders Members of the Armed Forces are required to maintain bank accounts in order to receive direct deposit of their federal pay. This makes them attractive to payday lenders whose only qualifications for quick cash loans are a steady source of income and an open bank account. Because they must have a bank account, Service members have added incentive to pay additional sums to renew loans in order to keep the checks provided as security from being returned for insufficient funds. The Uniform Code of Military Justice penalizes a service member's failure to make good on a check drawn on his or her bank account. Many, if not most, lenders can and do ask military borrowers to sign over electronic access to their bank accounts to repay loans. Some lenders require their loans to be repaid by allotment of military pay, which means that funds are taken out of their pay and sent to creditors before the Service member has an opportunity to use the money to pay rent or utilities. This is a form of payment that is supposed to be voluntary and a convenience to the Service member but has been turned into a way to ensure that high cost lenders get paid before funds are available to pay pressing bills or feed the family. A few lenders even require borrowers to sign wage assignments to insure payment is made timely, despite the federal prohibition on wage assignments in loans to enlisted Service members. While these Service members have unique features, such as needing to prove financial responsibility, to strive for advancement in rank and pay, and to preserve security clearances, their experiences with predatory lending are replicated in low to moderate income families in civilian life. The Department's report, in many ways, describes the plight of all low to moderate income consumers who struggle to make ends meet in a predatory lending environment. In my testimony, I will highlight three main points: 1. Predatory loan products and services are expanding rapidly, including quick cash loans offered in exchange for a personal check to be deposited next payday, loans secured by the free and clear title to the family vehicle, and installment loans repaid by military allotments or electronic access to the bank accounts Service members are require to have. All of these loans place important assets at risk, come at a steep cost, and often trap borrowers in repeat borrowing or renewals. These products also do not provide even the compliant consumer with a credit history that helps them escape from this choice of borrowing. High cost predatory lenders target service members by location, affinity marketing, presence on the Internet, or because they are widely available in the communities where military families reside. 2. Service members are not being protected by most states, either because high cost lenders have been carved out of usury or loan laws, or lenders claim that state credit laws do not protect nonresident borrowers such as Service members stationed in the jurisdiction, or because lenders have exploited every loophole to evade consumer protections. High cost loan contracts are grossly one-sided and include unilateral, mandatory arbitration clauses to deprive Service members of their day in court and limit their remedies, both of which are the cornerstones of the American justice system they fight to preserve. Congress must step in to protect Service members. 3. Service members are disproportionately targeted and punished by the products and practices of high cost lenders who harass them, their families and those in their command and who threaten criminal prosecution, court martial, loss of rank and pay, loss of security clearance and dishonorable discharge. Service members fear the consequences of failure to make good on checks used to get payday loans, and facing automatic and electronic withdrawal of money from their accounts are forced to juggle finances to stay afloat. They fear the loss of the family car whose title is pledged for loans. They fear the lender retaliation resulting from the cancelling of an allotment given to a lender. This struggle leads to stress, to loss of morale and impedes military readiness in addition to harsh financial consequences felt by the entire family. The practices and problems described in the DOD Report come alive in my clients' stories. Mr. Hubbell and his wife are both service members. You may have seen their story on a recent ABC News program. Due to the costs of his wife's illness and her inability to work, they took out a payday loan which led to thousands of dollars in outstanding loans from both payday lenders and installment loan companies. The more they paid, the more they owed and have repaid tens of thousands of dollars. One loan led to another because they had to keep borrowing more money to avoid the threats of criminal prosecution and the consequences of the lender contacting Mr. Hubbell's command. Over a five-year period of time, they were forced to borrow just over $10,000 and still have a monthly payday loan debt of just over $3,500. The Hubbells still owe over $12,000 on loans, most of which only went to pay off other loans and provided no benefit to the Hubbells except for digging them deeper into debt. Mr. Hubbell is an air traffic controller and felt he had no option but to stay on this debt treadmill because of his fear of the real danger of losing his security clearance and his rank. Another of my clients borrowed from a sham lender who pretended to sell Internet access to cloak a criminally usurious loan. When he was unable to keep up with payments, the lender directly debited his account for more than the amounts needed to pay off his loan. The lender also harassed him on his ship and called his superior officers. He was faced with not having enough money for groceries and rent for his family, including three children. Problems Identified in the DOD Report 1. Predatory loan practices and unsafe credit products are high risk for military borrowers The Report describes the same types of high-cost, high-risk loan products that we addressed in the law journal article about the two- tiered financial services market: Payday loans, rent to own, car title loans, high cost installment loans, and refund anticipation loans. From my experience helping low income and military consumers, I concur with the Report's description of the lenders' extreme high costs and their unsafe and unsound lending practices. I also concur with the description of the risk to borrowers' assets. Lenders require borrowers to grant them electronic access to their bank accounts as a condition of getting a payday loan at a store or via the Internet or to borrow from a military installment lender. As a result, consumers lose control of their bank accounts and rack up multiple fees when lenders make repeated efforts to collect on the loan by electronically accessing their bank accounts multiple times in one day for just one loan. Predatory lending is not committed only by one class of lenders. Even banks have begun to join the fray of those lending at triple digit rates. Two banks are offering ``account advances'' that work just like a payday loans: the bank advances up to $500 for a short, typically two week loan that must be paid back on the next payday, at annual rates up to 500%. In North Little Rock, Arkansas, near Camp Robinson and Camp Pike, ACE Cash Express partners with First Bank of Delaware to offer an installment loan at a 390% APR rate. The bank can violate Arkansas' constitutional 17% usury cap because banks are exempt from state regulation. The high risks to military borrowers who must maintain bank accounts and who rely on their military pay are illustrated by a Navy borrower I represented. Mr. M had an installment loan through a ``military'' lender that required automatic access to his bank account for electronic payment. When he did not make a timely payment, the lender ``hit'' his bank account eleven times in one day, causing hundreds of dollars in late fees, NSF fees and other bank charges. Lenders often require the borrower to sign a military allotment, which permits the lender to be paid directly by the Department of Defense out of the Service member's pay before funds are deposited in the bank. Allotments to pay consumer debt are supposed to be a convenience for the Sailor, payday and installment lenders turn this convenience into a mandatory wage assignment which is prohibited by federal law for enlisted personnel. The allotment becomes another method used by the payday lender to put the Service member at risk. Ms. W obtained a loan from a ``military'' lender that was marketed online. The lender required her to pay them through a military allotment check. They threatened to contact her Command if the allotment was redirected. This put Ms. W in a bind because the costs were so high for the loan that the allotment took away money she needed for food, transportation to and from work and utilities. Deceptively marketed car title loans have also been problematic for my clients. In these loans, borrowers sign over the free and clear title to their vehicle to secure loans for a fraction of the vehicle's value. Typically these loans must be repaid in full at the end of the month to avoid repossession of the family's transportation. We had a plague of title loan abuses in Florida until the Legislature finally imposed a reasonable 30 percent interest rate cap on these secured loans. Although Florida now caps these rates, the Report maps show that title loan sales outlets are still located in Jacksonville to channel customers to lenders across state lines in Georgia where title lenders are permitted to charge 300 percent annual interest. I represented several Sailors who were in constant fear of losing the family's only means of transportation and their only means of getting to work. In addition to being responsible for sound financial decisions, Service members must also be at work on time. The stress of a potential loss of transportation left one aircraft mechanic constantly distracted while trying to take care of Navy aircraft. 2. Predatory Lenders Target Military Borrowers The Report includes a set of maps created by Professor Steve Graves from California State University at Northridge, illustrating the clustering of payday lenders, installment lenders and a few title loan outlets around military bases in Duval County. In addition, payday lenders that do not explicitly ``target'' the military have a big presence in the commercial areas of Jacksonville. For example, the largest national chain, Advance America has twenty-nine outlets in Jacksonville, Orange Park, and Atlantic Beach yet stated that only about five percent of its borrowers in Duval County are members of the military or their spouses. The Report also includes a brief survey of online lenders and notes there are millions of ``hits'' representing companies that appear when someone uses ``military'' and ``loans'' as their search terms. Some of these sites are designed to appeal to Service members with photos of Service people, flags, patriotic symbols, and military-sounding names. Other online lenders that appear in searches market to the general public but include ``military'' pages to attract more hits from Service members. The problems for military borrowers come from both lenders that wrap themselves in the flag and those that market generally to cash- strapped consumers either in communities where Service members and reservists' families live or through websites available to Service members anywhere around the world where they have access to the Internet. The loans are just as expensive and risky for Service members whether made by a lender with ``military'' in the title or by a national chain marketing to the entire community. My clients tell me that they are influenced by loan ads that include military trappings. They think advertisements appearing in local Navy papers have been approved by the military. Mr. M and Ms. W are both in the Navy and are stationed at NAS-Jax. They each responded to advertisements in the local Navy newspaper and on the Internet by companies called Loans 4 Military and Military Financial Network, Inc. They both thought that the lenders were approved by the Navy because of their names, their patriotic web sites and because they were advertised in the Navy paper. The lender advertised a much lower rate than that which was actually provided. As a result, the borrowers were left with insufficient funds to pay their bills because these lenders required repayment by allotment. They had to take more loans to cover the bills that were not being paid because of the allotments. 3. High cost loans, abusive collection practices, and the debt trap The Defense Report describes the high and deceptively marketed costs, illegal collection practices and repeat borrowing trap that results from predatory lending to Service members. The cost of payday loans for my clients over the years has ranged from 390 percent to 906 percent. One of my clients had an installment loan with a disclosed interest rate of 17% while the true but undisclosed interest rate was 102%. Mr. N who is in the Navy obtained a title loan deceptively marketed as the sale and buy back of his motor vehicle. The lender hid the 300% rate charged because the Florida Legislature had reduced the interest rates that title lenders could charge from 264% to 30%. I regularly see clients who have loans with an installment lender which deceptively markets its products to Service members and claims to provide low interest rates. For example, the disclosed rate in one $1,000 loan was 19%. The lender also required the borrower to pay $475.95 for insurance that provided absolutely no real benefit for the borrower. The insurance was actually additional interest disguised as a real ``insurance'' product. The Department of Defense Report includes results of this year's Defense Manpower survey and questions about payday loan use. Those Service members who admitted to using payday loans reported an average of 13 transactions last year (including new loans and loan roll-overs). This loan use pattern is at the top of the range for average transactions per borrower as reported by publicly-traded lenders and state regulators who collect that data, as noted in the Report. If a consumer pays for thirteen $350 two-week payday loans at a cost of $15 per $100, they would pay $682.50 in finance charges to use $350 for twenty-six weeks of the year. It isn't just the high cost of payday loans that springs the debt trap. Failure to pay or renew a loan means that the check written to secure the loan will bounce and set off a cascade of bounced check fees charged by both the payday lender and the consumer's bank, not to mention the adverse impact on the borrower's credit report as a result of the perceived failure to maintain the bank account. Mr. K spent his entire day off going from payday lender to payday lender to keep from having his checks bounce. At one time, he was trying to juggle nine loans. This is the same experience that a witness reported to Senator Lieberman at his 1999 forum on payday lending here in the Senate. Coercive collections are made easy due to the terms included in payday loans, car title loans and installment loans. A payday lender sent one of my clients, who was required to allow electronic access to his bank account in the loan transaction collection, letters written by the lender on State Attorney letterhead. In these unauthorized and illegal collection letters, the lender threatened criminal prosecution when he did not have sufficient money to pay the loan in full. Mr. W borrowed from Military Financial Network which included language in their documents threatening Court Martial, imprisonment and a dishonorable discharge if he did not pay. Mr. G contacted me via email from an undisclosed location at sea. He was worried about his wife and family because of his outstanding payday loan debt. Due to threats she had received, he was afraid that the payday lender would put his wife in jail, leaving their two babies without a parent. 4. Service members sign away their rights in the credit market Every contract I see includes a binding, unilateral pre-dispute mandatory arbitration clause which is especially burdensome to military borrowers who are not able to pay the costs associated with arbitration or travel to participate in arbitration. For example, Mr. W, who had the Military Financial Network loan while stationed in Florida, was prohibited from suing MFN and, if he thought they acted illegally, was required to arbitrate his dispute in Delaware. Therefore, he effectively had no remedy when MFN debited his account eleven times in one day, used a contract threatening Court Martial, and threatened him while at work. 5. Consumer Protections are evaded, not enforced, or nonexistent Thirty-nine states have carved payday lenders out of usury or small loan rate caps or repealed their credit restrictions for all licensed lenders. Half the states permit title lenders to make short term cash loans at an average of 300% APR. In about half the states, installment lenders claim that state credit code or rate caps do not apply to nonresident service members stationed in that state. My home state of Florida is now in Federal court over the claim that Pioneer Military Lending is not licensed as a small loan company and does not comply with Florida protections. Installment lenders that make loans to military borrowers are not licensed or supervised in North Carolina or Virginia. Just recently California regulators withdrew its licensing waiver for one military lender, deciding that there was a public interest in supervising these companies. Over the years I have witnessed payday lenders use every trick in the book to escape real protections. Hiding behind the check cashing statute. In Florida, payday lenders tried for years to operate under the state check cashing law to avoid compliance with the state small loan law and credit protections. Eventually, Florida allowed payday lenders a safe harbor, permitting rates up to 390% APR for a $100 loan. Even with such generous rates, some lenders have attempted to evade Florida law. Rent-a-bank evasion of state limits were used by some of the largest payday lenders until the Federal bank regulatory agencies halted that tactic. Cash America, a publicly traded pawn and loan chain, used a series of out of state banks as a partner, claiming that they did not have to comply with Florida regulation. Jennafer Long borrowed money from ACE Cash Express while it partnered with Goleta National Bank to make loans at rates that exceeded Florida caps. The company repeatedly debited her bank account and harassed her supervising officers and threatened her with criminal prosecution when she was unable to repay on the due date. We sued and got a favorable ruling from the Federal court. Thankfully, the Comptroller of the Currency, the Office of Thrift Supervision, the Federal Reserve and the FDIC put a stop to the misuse of the charters of financial institutions through strict guidelines, safety and soundness enforcement and close examination of partner institutions. Sham transactions to cloak loans: There is no limit to the lengths some lenders will go to loan money to consumers at outrageous terms. Mr. B, a low-ranking Navy member, entered into a loan transaction with Florida Internet. The loan was characterized as the ``sale of the right to use the Internet'' for hourly increments. The loan was cloaked as a ``rebate'' for buying Internet time. The lender required direct electronic access to the borrower's bank account. This company was hiding interest rates which exceeded 400%, which made the loans criminally usurious and well above the 18% general loan rate in Florida. The same lender used a ``catalogue'' sales model to avoid Florida usury and payday loan law and was sanctioned by the State Attorney in Pensacola, another Navy town. The lender has been convicted of racketeering charges and is awaiting sentencing after decades of predatory lending from Washington to New York's Fort Drum. Claim to broker loans for other lenders under the credit service organization model: Cash America is claiming to be a credit services organization as a ruse to ``broker'' payday loans in Florida for an Ohio-based finance company, which may be a Cash America subsidiary. Cash America guarantees repayment of the loans to the Ohio company, which should take them out of the definition of a credit services organization and put them in the category of a loan guarantor. Cash America's loans cost $18 per $100 for the ``broker fee,'' plus interest charged by the purported lender. This makes Cash America loans even more expensive than Florida's limits for payday loans. I believe that this arrangement does not comply with Florida's Credit Services Organization Act and is simply done to charge Florida borrowers higher rates than even the state payday loan law allows. Attempt to avoid state protections by doing business online I recently filed a lawsuit against an Internet lender, Sonicpayday.com. This lender is available only on the Internet and charges interest rates as high as 900%. They do not allow the grace period provided by Florida law and encourage rollover transactions (paying off an outstanding loan with another more expensive loan). Sonic also requires its borrowers to sign a ``voluntary'' wage assignment. When my clients were unable to pay these high cost loans, Sonic contacted their employers and demanded the employers pay Sonic directly. They also contacted the Service member's chain of command when he told them he could not pay on time. Sonic loans have a term of two weeks or less. The short term makes the loan even harder to pay back. Noncompliance with protections. In July, Florida regulators took EZPawn to court over its failure to get a license to make payday loans. The Office of Financial Regulation alleged that EZPawn Florida, Inc. unlawfully blocked examiners from inspecting its loan papers and other records. This company, one of the large publicly traded payday loan and pawn chains, has at least eighteen locations in Florida The public record is replete with instances of large payday loan companies violating state consumer protection laws. This summer the Washington Department of Financial Institutions filed a case against Check'n Go for continued violation of state rules for payday lenders. Illinois Department of Financial Institutions fined Advance America earlier this year for violating the new Illinois law. West Virginia's Attorney General settled a case against Advance America for debt collection tactics used by its Ohio stores with West Virginia consumers. Arizona's Attorney General brought a case against a payday lender for threatening criminal prosecution for nonpayment. The Colorado Attorney General settled a case against an Internet payday lender that failed to comply with Colorado law. The North Carolina Banking Commissioner ruled that Advance America violated its small loan law while brokering loans through a series of out-of-state banks. Industry ``best practices'' voluntary codes fail to protect consumers Trade group ``best practices'' codes of conduct are more public relations than consumer protection. The CFSA ``Best Practices'' do not call on their members to cap interest rates, to stop enticing consumers to write checks without money in the bank, to consider ability to repay in extending credit, or to provide affordable repayment terms for their loans. Instead, the trade group's voluntary guidelines call for lenders to obey the Truth in Lending Act and state law relating to disclosures, to refrain from threatening criminal prosecution if a check used to get a loan is returned unpaid, and calls for a 24-hour right to cancel the loan by returning the amount borrowed. Even where the guidelines appear to offer the protection of a four roll-overs limit (unless state law requires less), these companies do not consider back-to-back loans as roll-overs restricted by this limit. Their Best Practices call for borrower responsibility but says nothing about lender responsibility to make appropriate loans. One of my clients had a bad experience with a payday lender which bragged about being a member of CFSA in its contract and claimed that it followed CFSA's Best Practices: Ms. Griffin is a Navy wife who has a payday loan with Advance America in Florida, which, as stated above, is a state that requires licensed lenders to grant at least a 60-day grace period with no additional fees, charges or costs if a borrower seeks credit counseling. Despite the grace period and a prohibition on ``roll-overs'' in her contract, she was required to roll over her loan when she could not pay. When she went to pay it off, she was $45 short, not realizing that she would be charged another fee to roll over the loan. Advance America refused the grace period even after she told them she already had the counseling at the Navy Marine Corps Relief Society, an authorized State of Florida Deferred Presentment Provider counseling agency. The director of NAS Jax NMCRS, Ret. Capt. Dave Faraldo, called the lender only to be told they did not have to talk to him and did not have to provide the grace period. You might think this was a matter of an inexperienced employee; however, the Advance America employee said she had been an employee trainer for eight years and they never had to provide the grace period. When I provided a signed release that I was Ms. Griffin's attorney, the Advance America staffer refused to speak to me about the legally-required grace period on her account. The organization also promotes its ``military best practices'' as all the protection military borrowers need. A close examination reveals no cap on interest rates; no ban on check holding or electronic access to bank accounts; no prohibition on mandatory arbitration clauses, and no ban on waiver of rights or access to the courts. Instead, the code prohibits after-the-loan practices that are already largely addressed by Department of Defense rules, the Servicemembers Civil Relief Act, or are promises that sound good but deliver little. Payday lenders use the borrowers' automatic access to bank accounts and checks to collect, not garnishment, in most cases. Federal law provides significant protections against garnishment of wages for enlisted personnel. Officers are directed by DOD not to assist creditors in collecting ``exorbitant'' debts. The other weak provisions of the CFSA Military Best Practices, adopted in 2004, call for honoring repayment agreements negotiated by credit counselors, providing educational materials including a brochure, and maintaining a web site. Since these guidelines have been in effect for over two years, it is obvious their application did not prevent the serious problems identified by the Department of Defense in last month's report. Solutions Needed I agree with the reforms urged by the Department of Defense to protect military borrowers and believe these protections are needed by all consumers struggling to make ends meet. 1. Rate cap which the Senate has already enacted as part of the 2007 Defense Authorization bill, now in conference with the House. DOD calls for a 36% APR cap to include all fees, premiums, other charges. This is the typical state small loan rate cap and is double the federal interest rate cap for Federal credit unions. It is six times the interest rate for loans held by Service members prior to joining the military. The Talent-Nelson amendment places a federal ceiling on interest rates (helpful for those states that neglect to protect nonresident Service members who live in their states) but permits states to provide more protection. 2. Loans should not be based on key assets for families. This puts too much risk into borrowing, fosters coercive collection tactics, and encourages consumers to take desperate steps to avoid losing those assets. S. 1878, introduced by Senator Akaka, would prohibit lending based on solicitation of unfunded checks or electronic access to bank accounts. It is already illegal for lenders to require consumers to pay debts through periodic electronic payments. This protection should be extended to single payment payday loans. No lender should be permitted to require a Service member to sign an allotment to military pay, providing a de facto wage assignment to lenders. 3. Service members deserve to have the full range of American rights when dealing with creditors. They should not be asked to waive their rights under state and federal law or be forced to accept binding, unilateral mandatory arbitration. No one should have to sign that they will not sue a lender for illegal practices and will not join a class action lawsuit. Often class litigation is the most efficient means for both parties to litigate illegal practices relating to hundreds of cases involving relatively small sums. Also, no one should be required to agree to pay the lender's expenses to remove them from a class or promise they will not file for bankruptcy in the future. I agree with DOD that ``waiver is not a matter of `choice' in take-it-or- leave-it contracts of adhesion.'' ______ PREPARED STATEMENT OF HILARY B. MILLER President, Payday Loan Bar Association September 14, 2006 Mr. Chairman and members of the Committee, it is a distinct honor to appear before you today. My name is Hilary Miller, and I am president of the Payday Loan Bar Association. I am here today as an expert in subprime lending, and I appear on behalf of the payday- advance industry's national trade association, the Community Financial Services Association of America (``CFSA''). Our bar association and CFSA both subscribe to the highest principles of ethical and fair treatment of borrowers. CFSA represents owners of approximately half of the estimated 22,000 payday-advance retail outlets in the United States. CFSA has established--and, critically, enforces among its members--responsible industry practices and appropriate consumer rights and protections, including special protections for the benefit of military personnel.\1\ --------------------------------------------------------------------------- \1\ These protections and information resources for service members, which include prohibitions on garnishment and contacting the chain of command for collection assistance, can be viewed in their entirety at http://www.cfsa.net/genfo/MilBestPractie.html (visited September 2, 2006). --------------------------------------------------------------------------- There are serious flaws in the Defense Department's recent Report on Predatory Lending Practices Directed at Members of the Armed Forces and Their Dependents (the ``DoD Report'').\2\ Those flaws involve fundamental matters of both methodology and policy. --------------------------------------------------------------------------- \2\ A copy of the report is available at http:// www.defenselink.mil/pubs/pdfs/Report_to_Congress_final.pdf. --------------------------------------------------------------------------- Decisions having potentially far-reaching implications regarding the cost and availability of consumer credit used by members of the Armed Forces must be reached only after careful gathering of data from a variety of sources and even-handed analysis of such data. By failing to synthesize information from balanced sources--and by systematically excluding any input from independent economists, consumer-credit experts or the industry itself--the DoD Report presents the views only of opponents of the kinds of lending discussed.\3\ The result is a biased, inaccurate and incomplete picture of the market for such credit, of the industry's practices and, most importantly, of the likely impact on military consumers were the DoD Report's recommendations to be adopted. --------------------------------------------------------------------------- \3\ A flawed report was perhaps predictable in light of the original directive of Congress that the Secretary of Defense consult with ``representatives of military charity organizations and consumer organizations'' but not with industry representatives, economists or consumer-credit experts. Section 579 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 119 Stat. 3276-77 (the ``2006 Act''). --------------------------------------------------------------------------- The language of the report reveals the author's bias. Instead of providing an objective explanation of his findings, the author frequently employs normative and emotionally charged terms to describe subprime lending, thereby suggesting--without a basis in research--that such lending is a societal evil. Our industry has a vital interest in making sure that military borrowers can repay their loans, for one simple reason: as lenders, we only make money when our borrowers repay us. If they do not pay, not only do we fail to collect their finance charges--which the DoD criticizes--but we also lose many times those charges in loan principal. In short, it is contrary to our interests to have service members get into trouble with their loans. And the reason we lend to military borrowers at all is that the entirety of the available scientific data suggest that only a tiny percentage of military borrowers actually do get into trouble with payday loans. Anecdotes derived from a non-representative sample of this small group are now being used to drive public policy for the much larger numbers of military borrowers who use payday loans for their intended purpose and who repay their loans on time. Here are some of the DoD Report's principal flaws: The DoD report determines that payday loans are ``predatory'' solely by uncritically adopting eight factors used by a vociferous opponent of the industry, the Center for Responsible Lending, without making an independent determination that such loans are ``unfair'' or ``abusive'' as required by the applicable statute. No other recognized authority has adopted these factors. According to DoD's own internal data, fewer than 5% of service members have had a payday loan. Because fewer than 6% of payday loans ultimately default, at most 6% of that 5%, or 0.3%, of all service members have experienced financial difficulty with a payday loan. In other words, 99.7% of service members have either not had a payday loan or experience no financial difficulties with payday loans. There is simply no statistical evidence that payday loans contribute to military readiness problems to any measurable degree. Although some service members with financial problems have taken out payday loans, DoD has presented no data showing that payday loans cause financial problems. Payday loans are intended to solve short-term financial problems, and the overwhelming majority of users employ them in that manner. DoD's data regarding asserted hardship relating to payday loans consist of a mere 12 anecdotes drawn from the experiences of 1,400,000 or more service members. For a sample of service members with payday loans who have experienced bankruptcy, payday loans account for less than 4% of their total liabilities, and the financial difficulties suffered by such service members manifestly relate to preexisting (i.e., non-payday-loan) factors. DoD's data regarding ``targeting'' of service members by payday lenders are flawed because they do not control for demographics and fail to include tests of statistical significance. The ``targeting'' argument assumes, in defiance of logic, that the industry would commit disproportionate resources to customers who account for only 1% of revenues. Service members appreciate the convenience and ease of obtaining a payday loan; 78% of service members with payday loans agree that ``most people benefit from the use of credit.'' DoD's principal recommendation is to reduce the maximum permissible charge on such loans to 36%, which is below lenders' marginal cost--thereby driving legitimate, regulated lenders out of the market and compelling borrowers to deal with illegal lenders. Those lenders would just as likely pursue illegal collection methods. A 36% rate cap is not the only possible approach to addressing the needs of overburdened service members. The industry has suggested allowing service members a longer repayment plan similar to that offered by the banks highlighted in the DoD Report. Our proposal to DOD was to allow service members to repay their defaulted loans over a term of six months or longer, and to limit interest rates to 36% in the post-default period. It is hard to understand why the bank program is embraced by DoD and the payday-advance industry's proposal is ignored. Ironically, payday lending competes with bank and credit union overdraft charges and service fees and is often less expensive for the consumer. For example, if a service member is a Pentagon Federal Credit Union member, the charge for a $100 overdraft is $25; our industry typically charges only $15 for a $100 advance. Similarly, Pentagon Federal's late charge on a credit card is $39, which explains why more than 70% of our customers use payday advances to avoid late fees. In a comprehensive submission attached to these remarks, we discuss the DoD Report as it addresses payday lending. However, many of our criticisms of the DoD Report are equally applicable to the other forms of credit addressed in the DoD Report. The DoD Report should be rejected, and the subjects raised by the report should be given appropriately balanced further study and analytical reflection by qualified experts. Thank you for your interest. I will be pleased to take any questions. Analysis I. Payday Loans Are Not ``Predatory'' The DoD Report adopts wholesale, and without critical analysis, a set of eight criteria promulgated by a vociferous opponent of the industry, the Center for Responsible Lending (``CRL'') , for determining whether a payday loan is ``predatory.'' \4\ No political, regulatory or academic authority has adopted CRL's criteria. There exists no principled rationale for the use of these criteria to the exclusion of more established notions of what constitutes a ``predatory'' loan.\5\ --------------------------------------------------------------------------- \4\ DoD Report at pp. 13-14. \5\ A standard definition is an unsuitable loan designed to exploit vulnerable and unsophisticated borrowers. A predatory loan has one or more of the following features: charges more in interest and fees than is required to cover the added risk or cost of lending to borrowers with credit imperfections, contains abusive terms and conditions that surprise or trap borrowers and lead to increased indebtedness, does not take into account the borrower's ability to repay the loan, or violates fair lending laws by targeting women, minorities and communities of color. Payday loans meet none of these criteria. See, generally, U.S. Dep't of Treasury/U.S. Dep't of Housing and Urban Development, Joint Report on Recommendations to Curb Predatory Home Mortgage Lending (2000), available at http://www.hud.gov/library/bookshelf12/pressre1/ treasrpt.pdf (visited August 29, 2006). --------------------------------------------------------------------------- Although not clear from the DoD Report, it appears that both CRL and the author of the DoD Report believe that the CRL criteria should be applied disjunctively; i.e., that a loan that possesses any one of the eight criteria is ``predatory.'' Since all payday loans possess at least two of the CRL criteria (``high'' cost and the use of a check- repayment mechanism), the DoD Report effectively classifies all payday lending as ``predatory''--without making an independent determination, as required by Congress, of how payday loans are ``unfair or abusive'' (within the meaning of the 2006 Act).\6\ By circularly defining payday loans to be ``predatory,'' the result of the DoD Report is a political statement, not science. --------------------------------------------------------------------------- \6\ Section 576(c)(2) of the 2006 Act defines a ``predatory lending practice'' as ``an unfair or abusive loan or credit sale transaction or collection practice.'' --------------------------------------------------------------------------- We discuss these eight factors individually. Interest Rate The DoD Report's principal objection to all of the types of loans it criticizes is their ``high cost.'' \7\ Yet no other authoritative source has classified any form of consumer lending as ``predatory'' based solely on pricing.\8\ --------------------------------------------------------------------------- \7\ DoD Report at pp. 13, 16-20. \8\ As a general matter, consumer credit experts understand the term ``predatory'' to be rooted in deceptive and/or illegal practices to coerce borrowers into unfavorable agreements. Stephen C. Bourassa, Predatory Lending in Jefferson County. University of Louisville 2003, http://www.lul.org/?foreclosed.htm (visited August 29, 2006). See also, Remarks by Governor Edward M. Gramlich at the Housing Bureau for Seniors Conference, Ann Arbor, Michigan (2002): In understanding the problem, it is particularly important to distinguish predatory lending from generally beneficial subprime lending. Predatory lending refers to activities and practices just cited--asset-based lending, loan flipping, packing of unnecessary fees and insurance, fraudulent or deceptive practices. Subprime lending, on the other hand, refers to entirely appropriate and legal lending to borrowers who do not qualify for prime rates, those rates reserved for borrowers with virtually blemish-free credit histories. Premiums for extending credit to these borrowers compensate lenders for the increased risk that they incur and range several percentage points over rates charged on prime loans. Although some have argued that these premiums are excessive, market forces should eliminate inappropriate spreads over time.http://www.federalreserve.gov/boarddocs/speeches/ 2002/20020118/default.htm (visited August 29, 2006) (emphasis added). --------------------------------------------------------------------------- In the case of payday loans, the cost of credit, standing alone, is neither ``unfair'' nor ``abusive,'' even though the interest rates on such loans (expressed as an annual rate) are nearly universally in the triple digits. Rather, such pricing has been found to be justified by the fixed costs of keeping stores open and the relatively high initial default rates on such loans. To the extent that CRL--and the author of the DoD Report, by unquestioningly adopting CRL's political views-- claim otherwise, their views are inconsistent with the research of federal consumer credit regulators.\9\ --------------------------------------------------------------------------- \9\ Mark Flannery and Katherine Samolyk, Payday Lending: Do the Costs Justify the Price? FDIC Center for Financial Research Working Paper No. 2005-09. http://www.fdic.gov/bank/analytical/cfr/ workingpapers.html#payday (visited August 29, 2006). --------------------------------------------------------------------------- In large measure, the perceived high cost of payday lending is driven by the small dollar amount of each loan, the high cost of maintaining stores in operation (both during and outside of traditional business hours), and the costs of marketing, originating and collecting such loans. Payday loans are thus ``expensive'' for the same reason that, for example, small quantities of food, available on a 24/7 basis from 7-Eleven, cost more than the same items purchased in bulk from Sam's Club during regular business hours. Likewise, so-called ``low- documentation'' mortgage loans have higher default rates and are more expensive than those based on more time-consuming credit investigations.\10\ Consumers who buy in small quantity and want it ``right now'' and with no ``hassle'' pay higher prices for those privileges. This is not an unfair or deceptive business practice; it is part of the American system of freedom of economic choice. --------------------------------------------------------------------------- \10\ Roberto G. Quercia, Michael A. Stegman and Walter R. Davis, The Impact of Predatory Loan Terms on Subprime Foreclosures: The Special Case of Prepayment Penalties and Balloon Payments (2005), Center for Community Capitalism, University of North Carolina. http:// www.kenan-flagler.unc.edu/assets/documents/foreclosurepaper.pdf (visited September 29, 2006). --------------------------------------------------------------------------- There is no evidence that payday-loan pricing causes economic harm. Indeed, borrowers' economic welfare is generally enhanced, rather than reduced, as a result of such borrowing. Any analysis of the cost of payday-loan credit must take into account the cost to the borrower of not obtaining such credit. For example, a consumer with limited credit alternatives may write a check drawn on insufficient funds. Even if the depository bank pays the overdraft, the cost of such credit is substantial, because the consumer is charged a service charge of $18 to $25 (or more) for the overdraft.\11\ But in most cases, middle-income consumers do not find that their banks are willing to pay overdrafts; rather, the checks are returned unpaid. When the check ``bounces,'' not only does the consumer's bank impose its service charge, but the consumer is also subjected to a returned-check fee by the merchant to whom the check had been written--generally another $25 or more. Thus, the total cost of ``bouncing'' a check, which may provide a consumer with a few days or weeks of credit until the check is paid is often $45 or more. Alternatively, a consumer with limited credit alternatives may engage in self-help to obtain an extension of credit in the form of a deferred payment of rent, a utility bill, or an installment due on a mortgage or a car loan. Such late payments will generally subject the consumer to late fees--penalties charged by the landlord or creditor which are very substantial relative to the true amount of temporary credit of which the consumer has availed himself. If the payment is made to a utility, often the consumer is subject to disconnect and/or reconnect fees. These charges have also risen to the point that consumers will almost always find it less expensive to employ a payday advance instead. Academic literature supports this welfare-enhancing view of payday lending.\12\ --------------------------------------------------------------------------- \11\ The cost of overdraft-protection credit can be astronomical and generally exceeds the cost of comparable payday-loan credit. Banks are not required to disclose these costs as an annual rate. For unknown reasons, the DoD Report does not address them. \12\ Samuel Hanson and Donald P. Morgan, Predatory Lending? Federal Reserve Bank of New York working paper (2005), available at http:// www.consumercreditresearchfoundation.org/_files/ FRB_Morgan_Hanson_5_2005.pdf (visited August 29, 2006) (no evidence that payday lending is ``predatory''). The notion that the borrower engages in his own welfare-enhancement calculus is likewise suggested by Thomas E. Lehman of Indiana Wesleyan University: In all likelihood, the borrower cares not what the ``effective APR'' is on the loan. The real price signal to which the borrower responds is the flat fee that is charged to hold the postdated check. If the value attached by the borrower to the immediate cash advance exceeds the value of the [principal] plus the fee one or two weeks hence, then the borrower will undertake the transaction . . . . ``In Defense of Payday Lending,'' The Free Market, Ludwig von Mises Institute, Vol. 23, No. 9 (2003). See also, James J. White, ``The Usury Trompe L'Oeil,'' 51 S.C. L. Rev. 445, 466 (2000) (``Contrary to those who claim to befriend the impecunious consumer, . . . even the poorest consumers are quite savvy. They understand the alternatives and make choices about borrowing that are wise for them even when the decisions seem foolish or wasteful to middle-class observers''). --------------------------------------------------------------------------- The pricing of payday loans is thus not ``unfair'' because, among other reasons, given the costs of providing credit, such pricing does not result in a grossly disproportionate exchange of value with the consumer or excess profitability to the lender. A recent study by Karlan and Zinman (2006) provides the best and most complete scientific answer to the question, ``Do high-interest short-term loans harm consumers?'' The authors used a lender to conduct a large-scale, randomized trial in which marginal borrowers who would not ordinarily receive access to short-term loans were granted loans. Those who received these loans were, one year later, less likely to be poor, unemployed or hungry.\13\ There is no comparably rigorous study showing a contradictory result. --------------------------------------------------------------------------- \13\ Dean S. Karlin and Jonathan Zinman, Expanding Credit Access: Using Randomized Supply Decisions to Estimate the Impacts (2006). http://www.dartmouth.edujzinman/Papers/ Karlan&Zinman%20Consumer%20Credit%20Impacts.pdf (visited August 29, 2006). --------------------------------------------------------------------------- Both Hanson and Morgan (2005), fn. 12, and Bond, Musto and Yilmaz (2006) \14\ conclude that predatory lending is effectively eliminated through robust competition.\15\ There can be no more perfectly competitive industry than the payday-loan business.\16\ --------------------------------------------------------------------------- \14\ Philip Bond, David K. Musto and Bilge Yilmaz, Predatory Lending in a Rational World, Federal Reserve Bank of Philadelphia Working Paper No. 06-092 (2006). http://ideas.repec.org/p/fip/fedpwp/ 06-2.html (visited August 29, 2006). \15\ See also, ``Let competition curb payday lending excesses,'' Crain's Chicago Business (May 17, 2004). \16\ See, generally, Banking on the fringe, Federal Reserve Bank of Minneapolis (July 2004), http://minneapolisfed.org/pubs/fedgaz/04-07/ banking.cfm (visited August 29, 2006). --------------------------------------------------------------------------- In summary, there is no authoritative or theoretical support for the DoD Report's conclusion that the ``high'' interest rates traditionally charged on payday loans, without more, render them ``predatory.'' --Short Minimum Loan Term The DoD Report asserts--again adopting, without analysis or question, the CRL view--that the short-term nature of the loan, without more, renders a payday loan ``predatory.'' \17\ --------------------------------------------------------------------------- \17\ ``The letters from the regulators recognize that a practice that can be abusive in some contexts can also--in absence of fraud or deception--be highly beneficial to consumers.'' Report of the Staff to Chairman Gramm, Committee on Banking, Housing and Urban Affairs, Predatory Lending Practices: Staff Analysis of Regulators' Responses (August 23, 2000) available at http://banking.senate.gov/docs/reports/ predlend/predlend.htm (visited August 29, 2006). --------------------------------------------------------------------------- The sole support for this claim is the unsubstantiated statement that ``75% of payday customers are unable to repay their loan within two weeks.'' There is no factual basis for this statement. Both CRL (and the author of the DoD Report) assume, without factual basis, that the reason all payday loans that have been renewed, or ``rolled over,'' is that the borrowers were unable to repay them. This conclusion is but one of many possible conclusions why borrowers may choose to extend the maturity of their loans. None of the academic literature in this field addresses the reason for ``rollovers.'' Even assuming that the average number of rollovers cited for non- military users were correct, the rate of repeat usage of payday loans among military borrowers is known to be much lower. In a recent independent study, 49% of military enlisted payday-loan borrowers reported they have used a payday loan no more than twice in the last year (compared to 16% of the general population of payday borrowers); 79% said they had no more than four loans in the last year (compared to 65% of the general population).\18\ --------------------------------------------------------------------------- \18\ William O. Brown, Jr. and Charles B. Cushman, Payday Loan Attitudes and Usage Among Enlisted Military Personnel (2006). Available at http://www.consumercreditresearchfoundation.org/_files/ 060628MilitaryPDLSurvey.pdf (visited August 29, 2006). --------------------------------------------------------------------------- Finally, there is no theoretical support for the supposition that a loan, the duration and cost of which are fully disclosed to the consumer, and which (as noted in the preceding paragraph) military borrowers actually repay in accordance with the original schedule, is ``predatory'' within the meaning of the 2006 Act. The cost of renewal credit is neither ``unfair'' nor ``abusive'' for the same reasons (supra, pp. 2-4) that the cost of the original loan is not predatory. The mere fact that a minority of military borrowers may find it necessary to renew their loans likewise does not render such loans ``unfair'' or ``abusive'' because the consequences of renewal do not result in either a meaningful reduction in consumer economic welfare nor excess profits to the lender. --Single Balloon Payment The DoD Report again incorporates, without examination, a CRL criterion for ``predatory'' lending that the entire balance of a consumer loan is repayable in a single balloon payment.\19\ The report incorrectly states that payday loans do not allow for partial installment payments to be made during the loan term; in fact, nearly all payday lenders permit partial payments, and such prepayments are required to be accepted under the laws of many states.\20\ --------------------------------------------------------------------------- \19\ Many ``mainstream'' forms of consumer credit are payable in a single balloon payment, such as the currently popular interest-only home mortgages and certain home equity lines of credit. The DoD Report fails to explain how, if at all, these credit vehicles are distinguishable in predation from payday loans. \20\ E.g., Nevada, Utah, Louisiana and Virginia. --------------------------------------------------------------------------- The DoD Report fails to set forth any principled reason why a requirement for repayment in a single balloon payment is evidence of predation. As with the ``short minimum loan term'' issue discussed above, the nature and terms of the loan are fully disclosed to, and understood by, the borrower at the time the loan is entered into-- perhaps more than any other aspect of any loan's terms. There is no fraud or deception regarding the consequences to the consumer of being unable to make partial repayments or of failure to make the single required repayment. There is no material economic difference to the borrower, ceteris paribus, in being required to make a single payment in two weeks instead of two payments at one-week intervals; indeed, because payday loans generally have a ``bullet'' maturity date at or immediately after the borrower's next payday, the single-installment nature of the loan benefits the borrower by allowing payment coincident with his employer's payroll practices. --Loan ``Flipping'' The DoD Report adopts the CRL terminology of ``loan flipping'' to refer to ``rollovers,'' or loan renewals. Neither CRL nor the DoD Report correctly utilizes the term ``flipping,'' although use of the term gives the issue more of a political charge, as CRL hopes and expects; and in this respect, the author of the DoD Report is likely an unwitting dupee. ``Loan flipping'' is a ``predatory'' practice by mortgage lenders where the lender induces the borrower to refinance an existing, favorable mortgage (often serially) by falsely representing the benefits of the new loan, and ultimately providing little or no economic benefit for the consumer because the manifest benefit is consumed by additional loan points, loan fees, prepayment penalties and fees from financing the sale of credit-related products such as life and disability insurance.\21\ For example, some homeowners are pressured by lenders into refinancing existing subsidized mortgage loans in exchange for commercial loans at higher interest rates, but with slightly lower monthly payments and substantial fees rolled into an increased principal balance. These tactics, because the consumer is actively deceived into believing that the transaction produces a net economic benefit for him, are clearly ``abusive'' within the meaning of the 2006 Act. --------------------------------------------------------------------------- \21\ See, Comptroller of the Currency, Guidelines for National Banks to Guard Against Predatory and Abusive Lending Practices, O.C.C. Advisory Letter 2003-2, available at http://www.occ.treas.gov/ftp/ advisory/2003-2.doc (visited August 29, 2006). --------------------------------------------------------------------------- In contrast, renewals of payday loans are initiated not by the lender but rather by the borrower. The borrower fully understands at the outset of the original loan and of any renewal loan what the costs and benefits are to him of repayment or renewal. Pricing of a payday loan is straightforward and does not involve complex computations to determine the cost of credit. There is no opportunity for the lender to conceal costs or to confuse the borrower regarding the economic benefits of extension. The payday lender's ``default setting'' is that the loan must be repaid in full on the original due date. Because payday-loan renewals are initiated by the borrower, the harms sought to be avoided by federal and state anti-``flipping'' regulations are simply absent from this arena. Under the Best Practices for the Industry of the CFSA, CFSA members limit payday-loan renewals to the lesser of four or the number permitted by applicable state law.\22\ Applicable state laws in Arizona (for military borrowers), California, District of Columbia, Florida, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, Tennessee, Virginia, Washington and Wyoming proscribe all rollovers whatsoever. State laws in Alabama, Colorado, North Dakota and Rhode Island limit the permissible number of rollovers to one. Laws in the other 12 states which permit payday lending have variable limits on the number of rollovers permitted. --------------------------------------------------------------------------- \22\ Community Financial Services Association, Best Practices for the Industry, http://www.cfsa.net/genfo/egeninf.html (visited August 29, 2006). --------------------------------------------------------------------------- There is no factual or authoritative support for the DoD Report's conclusion that merely permitting rollovers, to the very limited extent allowed by law or by CFSA's Best Practices, is a predatory practice. --Simultaneous Borrowing from Multiple Lenders It is theoretically possible for a borrower to incur substantial amounts of debt by contracting simultaneously with multiple payday lenders--just as a borrower may have multiple credit cards, mortgages, car loans and doctors' bills. Neither CRL nor the author of the DoD Report explains how this possibility is the result of a predatory practice by lenders. Virtually any consumer good or service holds risks if it is over-consumed. To the extent that a borrower can become indebted to multiple lenders simultaneously, consumer activists like CRL (and, by wholesale adoption, the author of the DoD Report) appear to expect lenders to protect borrowers not from predation by lenders but rather from the results of the borrowers' own improvident financial decisions. It is ironic that the proponents of such protections expect sellers of credit services to ascertain whether the buyers have relationships with competitors, and, if so, to refrain from doing business with those buyers. In any other field of endeavor, the Sherman Act would be loudly invoked, and the Justice Department would be vitally concerned about the anticompetitive nature of these behaviors. Once again, the author of the DoD Report does not explain how it is ``unfair'' or ``abusive'' for a lender to extend credit to a borrower who has existing credit relationships with others--especially, as is usually the case, if the lender is unaware of those relationships.\23\ --------------------------------------------------------------------------- \23\ Alabama, Florida, Illinois, Indiana, Michigan, North Dakota and Oklahoma have state ``database'' requirements that limit or proscribe multiple loans to a single borrower from multiple payday lenders and provide for an electronic means to determine the existence of an outstanding loan from a competitor. --------------------------------------------------------------------------- --No Consideration of the Borrower's Ability to Repay CRL's language, which is once again adopted unquestioningly and verbatim by the DoD report, asserts that ``payday lenders encourage consumers to borrow the maximum allowed, regardless of their credit history.'' The notion that payday lenders extend credit regardless of the likelihood of repayment by borrowers is preposterous and reveals the utter ignorance of the DoD Report's author regarding how the industry operates. Every payday lender employs a credit-scoring system to make credit decisions regarding individual borrowers. Such systems are ubiquitous in the consumer credit industry and are employed equally for credit cards, car loans, store credit and mortgages; the models vary from lender to lender and by type of loan. The largest and most sophisticated payday lenders employ computer-based models that are tested against large databases of actual experience and that are continually refined over time. Smaller lenders often use paper-based ``check the box'' systems to ensure that borrowers meet their credit criteria. The systems take into account such factors as whether the borrower has a telephone at his residence, whether he has a steady source of income, his prior credit history with the lender and others, and his legal ability to contract. The factors vary by lender. All of these systems have one goal, and one goal only: to screen out borrowers who are unlikely to repay their payday loans. Lenders make money only if borrowers pay them; if they do not repay, lenders go out of business. It is beyond silly to suggest that lenders are unconcerned about the possibility that a borrower will default. --Deferred Check Mechanism A universal feature of a payday loan is that the borrower gives the lender a check or other authorization to debit the borrower's checking account on the maturity date of the loan. If the borrower has not prepaid the loan in cash or otherwise, on the maturity date, the lender deposits the check. If the check is returned unpaid, the borrower may be subjected to a service charge by his bank because the borrower failed to arrange to have sufficient funds in his checking account at loan maturity. Once again, the DoD Report fails to explain how it could be predatory from the standpoint of the lender when a third party charges the borrower for returning a check unpaid. The lender does not control such charges and is a stranger to the relationship between the borrower and his depository bank. The borrower, but not the lender, had the power to avoid the charge by assuring that adequate funds were in the borrower's account. Automatic charges to the borrower's checking account are a routine feature of many ``mainstream'' forms of consumer credit. The DoD does not suggest how a lender's right to initiate such charges, standing alone, is ``unfair'' or ``abusive.'' The DoD Report also improperly suggests that a borrower ``may fear criminal prosecution'' for such returned checks. Any such fears are unfounded. CFSA, through its Best Practices (supra, fn. 22), forbids its members from threatening or pursuing criminal action against a borrower as a result of the borrower's check being returned unpaid. This proscription is codified in most of the state laws that permit payday lending.\24\ --------------------------------------------------------------------------- \24\ See, e.g., Cal. Fin. Code Sec. Sec. 23035(c)(3) and (d)(1). --------------------------------------------------------------------------- --Mandatory Arbitration Clauses Many consumer and non-consumer contracts contain arbitration clauses. Parties to arbitration clauses do not waive their substantive rights or, as the DoD Report erroneously states, eliminate the borrower's right to sue for abusive lending practices.\25\ Congress enacted the Federal Arbitration Act to promote the expeditious and inexpensive resolution of both contractual disputes and statutory claims. Longstanding federal public policy strongly supports arbitration of disputes. As the U.S. Supreme Court has held: --------------------------------------------------------------------------- \25\ The DoD Report incorrectly states (at p. 21) that the Federal Arbitration Act ``eliminates the borrowers' opportunity to obtain legal recourse'' and improperly suggests that arbitrators ``paid for by the lender'' will be biased in favor of the lender. These statements are patently false. By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum. It trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.\26\ --------------------------------------------------------------------------- \26\ Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 629, 105 S.Ct. 3345, 87 L.Ed.2d 444 (1985). Arbitration permits the vindication of consumer claims for abusive and other improper lending practices. An analysis of actual awards and results suggests that consumers fare better in arbitration than in the judicial system and are satisfied with the results.\27\ --------------------------------------------------------------------------- \27\ Michael T. Burr, The Truth About ADR, 14 Corporate Legal Times 44, 45 (2004); Ernst & Young, Outcomes of Arbitration--An Empirical Study of Consumer Lending Cases (2004), http://www.adrforum.com/ rcontrol/documents/ResearchStudiesAndStatistics/2005ErnstAndYoung.pdf (visited August 29, 2006). --------------------------------------------------------------------------- The DoD Report's statements regarding arbitration are simply unfounded. II. The DoD Report Fails to Demonstrate the Existence of a Problem Warranting Legislative Action The DoD Report presents what is at best a confused, inconsistent and anecdotal picture regarding the prevalence of payday-loan use among service members. It is impossible to draw any conclusion from the report regarding (a) what percentage of military borrowers have experienced extreme financial difficulties while having payday loans outstanding, or (b) whether, and in what percentage of cases, payday loans were themselves a material factor in causing or contributing to the financial difficulties. Without such information, Congress cannot make an informed decision regarding the legislative action, if any, to be taken. It may indeed be the case that some change is warranted, but it is impossible to draw any conclusions from the haphazard presentation of data contained in the DoD Report. --No Meaningful Percentage of Service Members Appear to be ``In Trouble'' with Payday Loans The author's methodology in drafting the DoD Report is highly problematic. Although a quantitative survey of military personnel was undertaken to determine what actual percentage of service members make use of payday loans, that study was not used as a vehicle to determine how such loans have contributed to (or deterred) the service members' economic welfare. Instead, the Defense Department now discredits its own survey and substitutes, for quantitative data, a number of ``case studies'' culled from reports by ``financial counselors and legal assistance attorneys'' in instances where assistance had been rendered to service members after ``being trapped in high interest loans.'' \28\ --------------------------------------------------------------------------- \28\ DoD Report at p. 39. --------------------------------------------------------------------------- These ``case studies'' were not chosen at random from all financial-assistance files.\29\ The ``case studies'' are not asserted to be a representative cross-section of all military families, of all military payday-loan users, or, indeed, of all users of military financial counseling. Rather, they are the product of the author's attempt to extract the most sympathetic (and possibly most egregious) examples of personal financial mismanagement by service members and then to hold them out as the ``evidence'' of the need for legislative relief. --------------------------------------------------------------------------- \29\ The DoD Report does not disclose how the ``financial counselors and legal assistance attorneys'' were instructed to select the ``case studies.'' --------------------------------------------------------------------------- It is impossible to determine the prevalence of personal financial problems from the anecdotes presented in the DoD Report. Assuming, in the light most favorable to the DoD Report's author, that the 3,393 ``case studies'' are drawn only from a single short time period, they represent a mere 0.2% of the 1,379,879 active duty personnel; \30\ if the ``case studies'' were collected over a longer period, possibly of years--during which the armed forces experienced considerable turnover--then the incidence of such ``cases'' is much lower than 0.2%. The DoD Report simply does not disclose enough information to be able to fix the proper denominator. --------------------------------------------------------------------------- \30\ Department of Defense, Directorate for Information Operations and Reports (2006). Military Personnel Statistics. http:// www.dior.whs.mil/mmid/military/rg0601.pdf (visited August 30, 2006). --------------------------------------------------------------------------- The ``case studies'' were distilled into 17 anecdotes in the DoD Report. A mere 12 of these anecdotes involved payday loans.\31\ Twelve anecdotes should not be deemed sufficient evidence to warrant extraordinary legislative action. --------------------------------------------------------------------------- \31\ DoD Report at pp. 39-42. --------------------------------------------------------------------------- The best evidence of the absence of a ``problem'' is contained in other, inconsistent aspects of the DoD Report itself: First, according to the Defense Department's own data, only 5% of service members use payday loans at all.\32\ --------------------------------------------------------------------------- \32\ DoD Report at p. 13. The author of the DoD Report insists that his own data must be incorrect because such data are is inconsistent with a study by the Consumer Credit Research Foundation (fn. 18, supra) that found the incidence of payday-loan use by enlisted military personnel at 13%. But the Foundation only surveyed personnel who live on and in the immediate vicinity of military bases in the continental United States; if deployed and otherwise stationed personnel --who generally will not have access to payday loans at retail locations-- were included in the denominator, the result would likely be much lower and consistent with the DoD Report's 5% figure. --------------------------------------------------------------------------- Second, the DoD Report states that ``payday loans carry very low risk of loss''; \33\ in other words, the default rate--the best proxy for the rate at which payday-loan borrowers ``get in trouble''--is low. CRL claims the default rate to be 6%.\34\ Assuming this rate to be accurate, or even in the ballpark, the percentage of all service members who ``get into trouble'' while having payday loans outstanding is about 6% of 5%, or 0.3%. In other words, 99.7% of service members either do not use payday loans or are unaffected by ``troubled'' payday loans. --------------------------------------------------------------------------- \33\ Id. \34\ Center for Responsible Lending, Fact v. Fiction: The Truth about Payday Lending Industry Claims. http:// www.responsiblelending.org/issues/payday/briefs/ page.jsp?itemID=29557872 (visited August 30, 2006). --------------------------------------------------------------------------- Finally, the DoD Report itself suggests that the ``problem,'' if one exists at all, is diminishing substantially without legislative action--a 20% decline from 2004 to 2006--through, among other things, education and command attention.\35\ --------------------------------------------------------------------------- \35\ DoD Report at pp. 37-38. --------------------------------------------------------------------------- A problem which is not experienced by 99.7% of all service members, and where usage is declining to immaterial levels, cannot be said to be worthy of immediate legislative action. --There Is No Evidence That Payday Loans Cause Financial Hardship or Affect Military Readiness As noted above, in a very small percentage of cases--0.3% of all service members--there is a default or ``trouble'' with a payday loan. The data do not show whether payday loans caused the service members' financial difficulty, or whether--as is far more likely--the payday loan was merely an unsuccessful attempt to find a solution to a preexisting financial problem. The 12 anecdotes presented in the DoD Report involving payday loans fail to present, in a balanced way, the totality of the financial circumstances of the borrowers. It is impossible to determine from those anecdotes how the service members fell on hard times, whether they sought payday loans before or after experiencing other financial reversals, the other obligations they had outstanding, and why they were ultimately unable to repay their debts. The author of the DoD Report wishes readers to believe that payday loans were the cause of the service members' difficulties in those cases where the service members (a) had outstanding payday loans, and (b) experienced financial difficulties. In other words, he concludes that the mere coincidence of payday loans and financial difficulties means that payday loans must be the cause of the financial difficulties. This post hoc, ergo propter hoc reasoning--that correlation is causation--is a tempting logical fallacy for an author whose conclusion had been reached before the research began. Such an explanation is not supported by DoD Report's data and, more importantly, is inconsistent with what is known generally about how consumers behave with payday-loan borrowings. Although the vast majority of payday-loan borrowers use such credit responsibly, for its intended short-term purpose and under circumstances where repayment is likely, a small minority of borrowers seek payday loans when they are already in serious financial difficulty and when their repayment prospects are poor. Such borrowers may hold a good-faith expectation that their circumstances will improve if they can temporize, or they may simply seek to postpone the day of reckoning. Either way, this small minority of borrowers is generally operating under an enormous debt load before incurring payday-loan debt. Often, the debts have been caused by circumstances beyond the borrower's control, such as unforeseen medical expenses (medical expenses are a factor in approximately half of all personal bankruptcies, even among fully insured debtors \36\). In such circumstances, a payday loan will have postponed, but ultimately made little difference to, the debtor's financial failure. --------------------------------------------------------------------------- \36\ See, generally, ``MarketWatch: Illness And Injury As Contributors To Bankruptcy,'' Health Affairs (February 2, 2005) (available at http://content.healthaffairs.org/cgi/content/full/ hlthaff.w5.63/DC1 [visited August 31, 2006]). --------------------------------------------------------------------------- This analysis is borne out by a random sample conducted by CFSA of service members' bankruptcy petitions in cases where payday loans were discharged, which provide the details of their debts on a creditor-by- creditor basis.\37\ Payday-loan debt comprises less than 4% of such bankrupt service members' total liabilities. Perhaps more interesting is that none of such petitions reveals either a judgment or garnishment for payday-loan debt, while such judgments and garnishments for other debts were commonplace. --------------------------------------------------------------------------- \37\ Details available on request. --------------------------------------------------------------------------- It is likewise difficult, because of the lack quantitative data, to accept at face value the DoD Report's implicit (and unexamined and unexplained) conclusion that high-interest-rate lending, without more, adversely affects military readiness. While being ``in financial trouble'' may result in loss of a security clearance, there is no logical causation chain that connects merely having access to payday loans to being ``in trouble.'' As noted above, the vast majority of payday-loan borrowers repay their loans without ``trouble.'' To the extent that these borrowers are ``in trouble,'' the data available show that they were universally ``in trouble'' before obtaining payday-loan credit. In the vast majority of cases, payday loans are a solution to a problem, not the problem--and there is no objective evidence to the contrary. Finally, if it is assumed--as CRL posits--that some military borrowers make use of multiple payday loans, the total amount they pay in interest is extremely unlikely, without more, to give rise to a ``readiness'' problem. A borrower with ten loans over a two-year period who pays $600 in interest will have paid less in payday-loan interest than the cost of a twice-weekly cup of coffee from Starbucks. In summary, the DoD Report fails to set forth any evidence from which Congress may logically conclude that payday loans cause or contribute to financial difficulties for service members. To the contrary, the data suggest that the vast majority of borrowers repay their payday loans without difficulty, as intended, and use them as the short-term ``bridge'' for which they are designed. --Alleged ``Targeting'' of Military Customers is Not Meaningful to this Analysis The DoD Report cites at length a study (Graves and Peterson, 2005) \38\ purporting to show that payday lenders concentrate their retail locations near military institutions in order to ``target'' potential military borrowers. Even assuming the correctness of this analysis, such putative ``targeting'' is irrelevant if (a) payday loans are not ``predatory'' (within the meaning of the 2006 Act), or (b) payday loans do not materially cause or contribute to a decrease in economic welfare for borrowers. As noted above, the DoD Report sheds heat, but no light, on these matters. --------------------------------------------------------------------------- \38\ ``Predatory Lending and the Military: The Law and Geography of `Payday' Loans in Military Towns.'' 66 Oh. St. Law Rev. 653 (2005). --------------------------------------------------------------------------- Moreover, even if the concentration data are credited, there are innocent as well as sinister explanations for such concentration. For example, areas around military bases universally contain large numbers of support businesses, the employees of which are often more squarely within the demographic profile of payday-loan users than service members themselves. Graves and Peterson also assume that demographics alone explain retailers' store- location decisions. They do not consider, and thus do not include in their analysis, other factors that may explain these decisions. For example, rental costs, payroll costs, zoning regulations and proximity to other retail outlets (``agglomeration effects,'' in economic terms) are all factors in store-location strategy.\39\ --------------------------------------------------------------------------- \39\ Graves and Peterson's study does not follow customary social science protocols by controlling for, for example, characteristics of the nearby non-military populations such as income, unemployment, home ownership and education levels. Their paper implicitly assumes that all those characteristics are distributed equally across each state, and that military bases are placed in random locations. Graves and Peterson calculate the ``predicted'' number of payday lenders by calculating a statewide number of payday outlets per person and multiplying that number by the population in the military installation's ZIP Code. Their theory assumes, effectively, that Detroit and Grosse Point should have the same number of payday lenders per person. They fail to provide t- statistics from which a reader can determine whether the difference between the ``predicted'' and ``actual'' number of lenders is statistically significant. For these reasons, the study cannot be accorded any scientific weight. --------------------------------------------------------------------------- The ``targeting'' argument also defies common sense. Military customers account for a very small percentage of all users of payday loans.\40\ It is illogical that payday-loan companies would devote disproportionate resources to marketing to such a small percentage of their customer base. --------------------------------------------------------------------------- \40\ Letter from Penn, Schoen & Berland Associates, Inc., Results of Poll Determination Payday Loan Usage Among Active Duty Members of the US Military (January 2005), available at http://www.cfsa.net/genfo/ Military-Polling-Results-Memo.pdf (visited September 5, 2006). --------------------------------------------------------------------------- Finally, the unspoken message of both the DoD Report and of Graves and Peterson is that it is somehow wrongful for businesses to address their services directly to groups of their potential customers. Yet military borrowers have legitimate needs for short-term credit, based on their age, their stage in the economic lifecycle and the high value to them of immediate consumption of certain kinds of goods and services: While military compensation tends to be stable, the household cash expenditures of military enlisted personnel can be irregular because of features of the military lifestyle and rules governing service. Enlisted personnel, because of their young age, general standard of living and historical low incomes, are not likely to have amassed significant precautionary savings to address these issues. However, they are able to smooth these irregularities in cash outflows by taking on debt, and they can repay that indebtedness through their stable incomes. Because of their youth, military enlisted personnel tend to be at the stage in life where the acquisition of durable goods can provide a stream of perceived economic benefits that substantially exceeds the cost of consumer credit.\41\ \41\ William O. Brown, Jr. and Charles B. Cushman, Compensation and Short-Term Credit Needs of U.S. Military Enlisted Personnel (2006). http://www.consumercreditresearchfoundation.org/_files/ 060427MilitaryCredit.pdf (visited August 31, 2006). In the final analysis, however, there is simply no analog for Graves and Peterson's ``targeting'' analysis in any other field of endeavor. Public policy regarding the services offered by fast-food stores, convenience stores, gasoline stations, supermarkets, liquor stores or casinos is not derived from studies of the concentration of their outlets around military bases. Rather, an objective and quantitative determination must be made regarding the nature of the services offered and their value to society. The DoD Study fails to provide a scientific and factual basis for such a determination. III. The DoD Report's Conclusions Are Not Supported by Economic Theory or Sound Public Policy The DoD Report fails to provide quantitative and scientific evidence to demonstrate the existence of a ``problem'' requiring a legislative solution. But even if the DoD Report's deeply flawed analysis were credited, the principal recommendations of its author find little theoretical support in economic literature or public policy. Although apparently well intentioned, implementation of the author's recommendations will not provide a meaningful benefit to service members and will materially diminish the economic choices available to military personnel, while creating unintended consequences and problems. These recommendations should therefore be rejected. --36% APR Ceiling The DoD Report's principal and most dramatic recommendation is a 36% across-the-board federal interest-rate ceiling on all lending to military borrowers. If this interest rate were to be applied to payday lending, it would fix the consumer price below the lenders' marginal costs and well below the lenders' average costs (Flannery and Samolyk, 2005, fn. 9). The practical effect of such a rate cap would be to eliminate the legitimate market for such lending altogether. The economic effects of price controls of any kind are notorious. While affordability and consumer protection are generally cited as the goals of price ceilings, price controls invariably become a wealth- redistribution mechanism. This mechanism evolves into a system of implicit subsidies, under which some rates are maintained at levels that are artificially high so that others can be restrained. Usury ceilings erode service quality, as lenders reduce the expenses of their operations and weed out all but the most creditworthy borrowers; pricing to the most desirable customers is invariably increased so that the least desirable customers can be subsidized, if they are served at all. The distortion of market forces that occurs with rate caps will deprive the most desperate of borrowers of the opportunity to borrow from legitimate, regulated lenders and instead compel marginal borrowers to deal with lenders who are willing to lend illegally\42\ and who, more likely than not, will pursue just as illegal collection practices when the loans come due. --------------------------------------------------------------------------- \42\ Rationing and under-the-table payments are common results of statutory price ceilings. ``Loan sharking'' is the most prevalent result of artificially low usury ceilings. --------------------------------------------------------------------------- The DoD Report assumes, without any theoretical or practical foundation, that: (a) payday loans will continue to be available in a legitimate market, even if rates are fixed below lenders' costs; or (b) if such loans are unavailable, borrowers will behave in a manner deemed more ``responsible'' financially. History teaches that Congress has vast powers, but it cannot suspend the laws of economics; needy borrowers will obtain the credit that they need, even if they can only do so illegally. The effect of a legitimate and regulated market for payday loans has been salutary. As noted above, CRL claims that at least 94% of payday-loan borrowers repay their loans without default; approximately 99.7% of all service members appear to be unaffected by payday-loan defaults. There is no meaningful black market for military credit, so that the opportunities for a wide range of criminal behaviors simply do not exist--yet. Consumer credit experts, even those who favor usury ceilings, recognize the bluntness of usury as a tool for regulating consumer credit policy.\43\ Other tools, while less direct, may have a consumer- friendly effect while allowing the market itself to create the proper pricing. For example, liberalized bankruptcy exemptions and restrictions on creditor remedies (such as on garnishment and collection) force lenders to internalize the costs of improvident credit decisions while not restraining prices artificially. Likewise, as the DoD Report recommends, enhanced disclosures may be useful to promote informed shopping and to eliminate the effects of unintended transactions. Finally, there are a variety of approaches that are gaining popularity in Europe but have not been attempted in the United States, such as requiring lenders to give advice regarding appropriate forms of credit and so-called ``responsible lending'' rules.\44\ (The CFSA Best Practices, fn. 22, are a form of ``responsible lending'' principles.) There is thus sound scholarly support for the notion that usury regulations should be the last resort, not the first, in regulating credit markets. Evidence of need for such crude re- regulation is simply absent from the DoD Report. --------------------------------------------------------------------------- \43\ Steven M. Crafton, An Empirical Test of the Effect of Usury Laws, 23 J.L. & Econ. 135, 145 (1980); James E. McNulty, A Reexamination of the Problem of State Usury Ceilings: The Impact in the Mortgage Market, 20 Q. Rev. Econ. & Bus. 16, 26-27 (1980); Loretta J. Mester, Why Are Credit Card Rates Sticky?, 4 Econ. Theory 505, 505, 521 (1994); Usury Laws: The Bad Side of Town, Economist, Nov. 28, 1998, at 30. \44\ See, e.g., Commission of the European Communities, Proposed Directive on Consumer Credit Agreements (2005), available at http:// ec.europa.eu/consumers/con_int/fina_serv/cons_directive/ 2ndproposal_en.pdf (visited August 31, 2006). --------------------------------------------------------------------------- The DoD Report proposes to reverse years of enlightened deregulation of credit markets. This deregulation has resulted in unprecedented access to credit for low-income borrowers.\45\ Moreover, deregulation has caused the average cost of credit to existing borrowers todecline.\ 46\ --------------------------------------------------------------------------- \45\ See, generally, Baxter, W.F., ``Section 85 of the National Bank Act and Consumer Welfare,'' 1995 Utah L. Rev. 1009, 1023: ``Finally, notwithstanding the familiar populist politics of usury laws, the greatest gains from federal preemption are likely to accrue to the least well-off consumers in society. Regulatory restrictions in credit markets hurt highest-risk borrowers the most. Based on a review of the empirical literature estimating the impact of restrictive interest rate ceilings before Marquette, one study concludes that `lower-income families and families headed by younger persons would seem to be among those most likely to be denied credit as a result of such [interest rate] ceilings.' [footnote omitted] In credit card markets in particular, both the Credit Research Center survey data and a New York State study echo this result. These studies indicate that pre-Marquette rate ceilings affected the probability that a low-income or lower-middle-income family would hold a credit card but did not affect the probability of cardholding for higher-income families.'' \ 46\ Id. at 1022. --------------------------------------------------------------------------- Service members obviously appreciate the convenience and ease of obtaining a payday loan; 78% of service members agree that ``most people benefit from the use of credit.'' \ 47\ Other authorities are in accord.\48\ --------------------------------------------------------------------------- \ 47\ DoD Report at p. 44. \ 48\ ``Payday lenders have grown dramatically in the past few years precisely because they are meeting both a need and a service banks and credit unions have failed to provide--convenient, small loans on a short-term basis . . . Payday lenders are fast, friendly and have convenient hours; they are open until 6 p.m. and on Saturdays . . . They have a good business model; they fill a need and provide a service that people want.'' National Association of Community Credit Unions, Credit Union Alternatives to Payday Lending (January 2006), available at http://www.naccu.coop/white_papers.html (visited August 29, 2006). --------------------------------------------------------------------------- The state legislatures of 37 states have performed this calculus and reached conclusions that are directly contrary to those of the author of the DoD Report. Recognizing that it is better to have a robust and competitive but regulated market for the kinds of credit that borrowers actually demand, these states have, after careful study, both enabled such lending and set interest-rate ceilings at levels that exceed lenders' costs. The DoD Report discounts the decisions of these state legislatures entirely. Throughout, the DoD Report notes that many borrowers turn to payday lending because they already have bad credit. The DoD Report's ``solution'' is to eliminate a borrowing option when the damage (i.e., bad credit) has already been done. The most appropriate and effective policy response would be one that addresses the root cause, not one that eliminates a possible, albeit temporary, solution. Education and the fostering of sound personal finances would create more financial options for households than any other solution. The DoD Report gives no attention to the possible harm caused by eliminating lawful access to payday-loan credit for the 99.7% of service members who either do not payday loans at all, or who use them responsibly and for their intended purpose. Further study of this issue is warranted prior to material legislative change. --Ability to Repay As noted above, the DoD Report discusses the extension of credit without regard to ability to repay. Payday lenders never extend credit without consideration of the borrower's ability to repay. An essential feature of any positive credit decision is that the borrower has a steady source of income, and that income can be used to make loan payments. This is the same criterion that is employed by providers of both secured and unsecured credit of virtually every kind (with the possible exception of pawn lending). The overarching unique feature of a payday loan is that the borrower provides the lender with a check for the aggregate of the loan principal and finance charge at the inception of the relationship; the lender knows that the check is likely to be honored because the borrower's checking account is periodically replenished by the borrower's employer. It is this very check that provides the lender with the borrower's assurance of repayment. The DoD Report stands logic on its head by recommending that this check be dispensed with, thereby eliminating the lender's assurance of the borrower's ability to repay. If taking the borrower's check were proscribed, a payday loan would have very different economic characteristics, because the lender's collection costs and overall credit experience would be dramatically and adversely affected. Elimination of the check would drive lenders' costs up to the point were it would no longer be economic to extend credit at current market rates; such credit would be unthinkable at the proposed ceiling rates. --Arbitration The DoD Report recommends that arbitration clauses in loan contracts with military borrowers be forbidden. As noted earlier in this letter, there is no evidence of a ``problem'' to which this ``solution'' purports to be responsive. Overall complaint rates to regulators regarding payday loans are extremely low: on the order of magnitude of one complaint per million loans. Other than litigation involving the now-defunct ``bank model,'' there have been only a handful of reported cases relating to the payday-loan industry. As noted above, agreeing to arbitration does not amount to the waiver of any substantive rights. By agreeing to arbitrate, a consumer submits his claims to an impartial tribunal that is authorized to award any remedy that a court might award, including injunctive relief, attorneys' fees and costs. Arbitration is more expeditious and less expensive than litigation and produces results with which consumers are nearly universally satisfied. This recommendation is inconsistent with federal public policy that encourages non-judicial resolution of disputes and should be rejected. --Other Recommendations CFSA takes no position regarding the remaining recommendations of the DoD Report. Although the report makes the uncontroversial suggestion that uniform cost-of-credit disclosures be given to military borrowers, in fact such disclosures are already being made to all payday-loan borrowers because they are required under the Truth in Lending Act, 15 U.S.C. Sec. 1601 et seq., and the Federal Reserve Board's implementing Regulation Z, 12 C.F.R. Part 226. The requirement for such disclosures is likewise incorporated in many of the state-law provisions that enable payday lending. It is unclear whether this recommendation is intended to remedy a perceived deficiency in payday lending or in some other form of credit. The report also makes the recommendation that lenders be precluded from contracting for waivers of the protections provided by the Servicemembers' Civil Relief Act.\49\ Such waivers are unenforceable in any event, and it is once again not clear what wrong is sought to be remedied by the author's recommendation. --------------------------------------------------------------------------- \49\ This law protects not only those on active duty but also Reservists and activated members of the National Guard. 50 U.S.C. App. Sec. 501 et seq. The U.S. Supreme Court has said that the predecessor statute should be read ``with an eye friendly to those who dropped their affairs to answer their country's call,'' Le Maistre v. Leffers, 333 U.S. 1, 6 (1948), and its provisions are generally considered to be non-waivable. --------------------------------------------------------------------------- Conclusion The DoD Report is biased, unscientific and fails to follow the routine social-science protocols that enable policy makers to reach informed decisions regarding consumer-credit law. The report makes recommendations that are unsound from a policy standpoint, and those recommendations are intended to address problems that have not been proven to exist with any demonstrated rate of incidence. The overwhelming evidence is that payday loans are employed by borrowers for their intended short-term purpose, and nearly all borrowers repay them as agreed, without financial distress. The DoD Report should be rejected in its entirety. ______ PREPARED STATEMENT OF CHRISTOPHER L. PETERSON Assistant Professor of Law, Levin College of Law, University of Florida September 14, 2006 It is an honor to appear today before this Committee. Thank you for the opportunity to share some thoughts on predatory lending practices directed at military personnel and their dependents. My name is Christopher Peterson and I am a law professor at the University of Florida where I teach commercial law and consumer law classes. I commend you, Mr. Chairman, Senator Sarbanes, and other members of the Committee for organizing these hearings and for providing an opportunity to discuss this important and timely national issue. As you know, the Department of Defense recently released a large report on predatory lending to military personnel. I have been asked to share my reactions to this report. In short, I believe that deceptive and onerous credit is a significant problem for both the military and for many middle and lower income Americans. The Department of Defense's report does an excellent job of compiling the various predatory lending threats to its personnel and in recommending an appropriate policy response. In this testimony, I will briefly discuss some historical, economic, geographic, and legal considerations which may be of assistance to you in deliberating on the meaning and significance of this report. Military Personnel Have Historically Been Vulnerable to Oppressive Credit Predatory lending is not a new phenomenon either in American or world history. Since humanity's earliest recorded history, some creditors have always been willing to take advantage of desperate, incautious, or naive borrowers by making loans with ruinous interest rates and remedies. While today's borrowers wonder whether they will have sufficient funds in their account to cover a check post-dated two weeks in advance, ancient debtors dreaded ``the end of the moon'' when their high cost loans came due. Moreover, government and religious leaders of virtually all complex civilizations have tried to limit the harsh consequences these contracts can have both for borrowers and for their communities and institutions. It is no coincidence that humanity's very first recorded comprehensive legal system, the Code of Hammurabi (c.1750 B.C.E.), includes aggressive consumer protection rules. According to legend, the Babylonian Emperor Hammurabi ascended a mountain where Shamash, the Babylonian God of Justice gave him a comprehensive code which was used to govern that civilization for over a thousand years. Included in the statute was a usury law that limited interest rates to 20% per annum for loans of silver and 33% on loans of grain. The text of the code bears a remarkable similarity to interest rate caps adopted thousands of years later, including the interest rate cap purporting to limit interest rates to 18%, which is still in the State code in my home state of Florida. Ironically, the loans offered by companies that surround virtually all of our military bases would have been illegal in ancient Babylon. History books are full of evidence suggesting military personnel have tended to be especially vulnerable to oppressive moneylenders. For example, violent riots broke out in the early Roman Republic (before they adopted a usury law) when the public learned of an oppressive credit contract between a military veteran and a money lender. When the veteran was unable to pay his debt the moneylender took his farm and imprisoned him. The resulting riots, usually called the ``First Secession'' by Roman historians, threatened to undermine the entire emerging Roman Republic. Public resentment of oppressive credit contracts was stabilized when the government adopted an interest rate cap in the twelve tables, a law which served as the foundation of Roman law and still influences civil legal systems in Europe and the state of Louisiana. Throughout most of the Roman Empire and eventually the Byzantine Empire, the government capped interest rates at 12% per annum. All throughout our national history--with the exception of the past decade or two--we have attempted to protect military and non-military borrowers alike with usury laws. The founding fathers brought over English interest rate caps when they arrived in America. When the U.S. Constitution was ratified, low usury ceilings and a frontier thrift ethic were nearly universally agreed upon by America's first leaders. It is extraordinarily unlikely that George Washington, Thomas Jefferson, or Alexander Hamilton would have tolerated 500 percent interest rate loans to members of the Continental army. Certainly Benjamin Franklin, who frequently wrote on the subject and was a strong proponent of usury law, would have been outraged at today's military loans.\1\ --------------------------------------------------------------------------- \ 1.\ ``For example, Franklin once wrote: Think what you do when you run in Debt; You give to another Power over your Liberty. If you cannot pay at the Time, you will be ashamed to see your Creditor; you will be in Fear when you speak to him; you will make poor pitiful sneaking Excuses, and by Degrees come to lose your Veracity, and sink into base downright lying; for, as Poor Richard says, The second Vice is Lying, the first is running in Debt. . . . Poverty often deprives a Man of all Spirit and Virtue: Tis hard for an empty Bag to stand upright . . . . The Borrower is a Slave to the Lender, and the Debtor to the Creditor, disdain the Chain, preserve your Freedom; and maintain your independency: Be industrious and free; be frugal and free.'' David M. Tucker, the Decline of Thrift in America: Our Cultural Shift From Saving to Spending 9-10 (1991); 7 The Papers of Benjamin Franklin 342- 49 (Leonard W. Labaree ed., 1963). --------------------------------------------------------------------------- During America's rise to international power in the twentieth century federal and state governments relied on usury laws to deter, educate, and exercise symbolic moral leadership on predatory lending. During the years when so-called ``greatest generation'' governed our country, very few states or leaders were willing to depart from our traditional usury laws. Our military, along with our allies (all of which, incidentally, did not tolerate predatory lending to their troops either), managed to win the Second World War without the assistance of triple digit interest rate loans in whatever form those loans might take. In the economic boom years following the war, our country became more comfortable with using credit to finance a middle class lifestyle. But it was not until much later that loopholes in our law, including the Supreme Court's historically dubious interpretation of the National Bank Act, allowed lenders to begin marketing loans with terms that in past generations would have been associated with illegal loansharks. A long term historical perspective suggests that the Department of Defense's recent report on predatory lending is actually quite conservative in substance and modest in proposals. Any responsible look at our national history reveals that at no other time would the Pentagon have been forced to implore the Congress to protect its personnel from triple digit interest rate loans. In every previous American generation, the Department of Defense's substantive legal recommendations would have been accepted with little or no debate. The Department of Defense Report is Economically Sound Free and competitive enterprise is one of the backbones of American society. And, no institution is more responsible for preserving our freedom to conduct business than the Department of Defense. However, I would respectfully counsel the Senate to recall the great difference between a competitive market and market anarchy. In a competitive market, self-interested, autonomous commercial behavior creates better policy outcomes than government intervention, because each individual can be trusted to make their own resource allocation decisions. As each individual makes decisions about where to invest their time, services, and funds, competitive markets naturally evolve into a result that is better than could have been achieved had government intervened. Adam Smith famously compared this process of individual, self-interested decision making to an ``invisible hand'' that guides social policy to the optimal outcome. Unfortunately, sometimes the invisible hand alone does not work. Responsible leaders uniformly agree that the government must intervene in the market for some goods and services. We can all agree that the U.S. government should ban free markets for weapons grade plutonium, child pornography, or heroin. These products have characteristics associated with them that make an unregulated market unacceptable. The sale of plutonium to terrorists would likely impose the highest externalities on those killed by a bomb made as a result of the contract. We ban child pornography because contracts to purchase it create an incentive to assault our children, and because we refuse to recognize economic demand for that product as morally legitimate. We ban the sale of heroin because buyers of this product tend to make non- rational decisions by virtue of the product's addictive characteristics. Our ancient (and only recently relaxed) laws against predatory loans are evidence of analogous market imperfections associated with credit contracts. At least three market imperfections prevent the market for high cost short term loans from resolving to an efficient equilibrium: (1) imperfect information, (2) behavioral distortion, and (3) externalities. First, consumers have great difficulty comparing the prices of credit. Despite the best efforts of our educational system, many people in our society still have (and likely will always have) difficulty learning to read or make simple mathematical calculations. The ``invisible hand'' cannot create efficient outcomes when individual borrowers do not compare the price of a loan to its opportunity cost. In markets that are targeted by predatory lenders, it is likely that a large percent of the served population have little or no idea how to compare credit prices. Moreover, because creditors can hide and obscure those prices through inaccurate disclosure, hidden fees (including contingent charges such as late fees, over-the-limit fees, attorney fees, etc.), and worthless add-on products that even rational borrowers will not attempt to shop, since doing so is likely to be an unproductive use of time.\2\ --------------------------------------------------------------------------- \ 2.\ Although the government has attempted to assist in this respect by passing the Truth in Lending Act, most people agree that there are serious problems with this statute as it is currently written. TILA disclosures are difficult to understand, come far too late in negotiations (after a loan applicant has already decided to borrow), and are riddled with exceptions that distort the usefulness of disclosures. Moreover, inflation has outdated the dollar limits to the scope of the statute and the remedial damage awards that deter non- compliance. Besides, predatory lenders consistently disregard and obscure TILA disclosure rules anyway. See generally Christopher L. Peterson, Taming the Sharks: Towards a Cure for the High Cost Credit Market (U. Akron Press, 20034) --------------------------------------------------------------------------- Second, Consumers, including military personnel, do not always make economically rational decisions. As the nobel prize winning research of Daniel Kahneman and Vernon Smith demonstrates, people often fail to match their estimation of the value of the a product to the utility they actually receive from it. For example, consumers often unreasonably discount the value of future income. Sometimes, for better or worse, people want today, what they should wait for until tomorrow. That is why it is difficult to save for retirement and it is one reason why many people borrow more money than they should. Similarly, consumers tend to overestimate their own ability to control financial outcomes and underestimate factors outside their control, such as unexpected car repairs, illness, payroll mistakes, job loss, etc. This common tendency leads borrowers into believing they can quickly repay high cost loans, when in reality, they cannot. Predatory lenders understand how these behavioral distortions operate in the credit market, and intentionally exploit them. This is why advertisements for ``fast cash'' or ``easy credit'' can tempt people, including soldiers, sailors, airmen, and marines, into making unreasonable financial decisions. Third, predatory loans have significant costs--usually referred to as externalities--born by those not privy to the contract. For example, when a predatory loan does not only hurt the borrower, it can also lead to deprivation of resources that would have otherwise gone to the borrower's children or other dependents. Neighborhoods that host predatory lenders often suffer from lower property values. Utilities, hospitals, land lords, and mainstream financial service providers all have greater difficulty obtaining timely payment from consumers who become mired in high cost debt. Because they tend to be more aggressive than other creditors, predatory lenders frequently skip to the head of the line obtaining payment before others with less questionable debts. The Department of Defense report should be seen as an emphatic example of the externalities associated with predatory loans. Military leaders are speaking out, explaining that predatory lending is eroding the military readiness of our armed forces. Who better to know whether this is true than the Pentagon along with the many generals, admirals, and other officers who have spoken out on this issue? By trapping military borrowers in high cost predatory loans, lenders are disrupting the family lives and emotional well being of those who are protecting us in a complex and dangerous world. The evidence cited by the Pentagon on the thousands of service members who have suffered revoked security clearances as a result of predatory lending should be seen as concrete, unimpeachable evidence of a market distorting externatility associated with high cost consumer loans. The Department of Defense Report is Empirically Sound A previous study conducted by Professor Stephen Graves, of California State University, Northridge, and myself examined the location patterns of one type of predatory lender in relation to military installations around the country.\3\ In our study we examined 20 states, 1,516 counties, 13,253 ZIP codes, nearly 15,000 payday lenders, and 109 military bases. We found high concentrations of predatory lending businesses in counties, zip codes, and neighborhoods in close proximity to military bases. Our study controlled our observations by comparing the density of payday lender locations in military areas to statewide averages and also by comparing payday lender locations to bank locations. We could find no statistically reasonable explanation for these location patterns except for the presence of military personnel living on or in close proximity to military bases. --------------------------------------------------------------------------- \ 3\ Steven M. Graves & Christopher L. Peterson, Predatory Lending and the Military: The Law and Geography of ``Payday'' Loans in Military Towns, 66 Ohio St. L.J. 653-832 (2006). --------------------------------------------------------------------------- This pattern existed in every state we looked at, except for New York, which had consistently and aggressively enforced its 25 percent per annum interest rate cap. Unlike every other major military installation we studied, Ft. Drum (home to the Army's 10th Mountain Division) in upstate New York was not surrounded by payday loan outlets. While other credit options were available, including finance companies, credit unions, banks, thrifts, and pawnshops, there was not a large on the ground force of triple digit interest rate lenders surrounding the base. In contrast, voluntary trade association guidelines, or so-called ``best practices'' agreements, did not create any demonstrable influence on the geographic patterns associated with payday lenders and military installations. Similarly, a variety of ancillary state consumer protection rules, such as rollover limitations, internet databases, and licensing requirements, did not deter payday lender clustering around military bases. We concluded that usury laws--the time tested, conservative, historical American response to predatory lending--appeared to be the best legal tool for addressing concerns about predatory lending to military personnel. The Department of Defense report further corroborates our findings. It uses a variety of quantitative and qualitative data to establish the existence of a significant predatory lending problem. The report makes realistic estimates of the percent of service members using payday loans. The report also accurately summarizes a variety of other potentially predatory credit products used by military personnel. The report accurately describes Department of Defense financial education efforts, as well as the inherent limitations to this approach. The report accurately summarizes the many better alternatives to predatory loans available to military borrowers, and pragmatically explains that these alternatives are not likely to prevent service members from falling into predatory debt traps. The report persuasively presents compelling qualitative narratives of service members and their families who have suffered real personal, financial, emotional, and professional lossses as a result of predatory lending. And the report compiles a useful list of suggestions for policy reform--all of which would meaningfully improve the lives of military service members. In conclusion, I do have one reservation with the Department of Defense report. I am afraid the comprehensive nature of the report might be used as a tool to prevent immediate reform of credit laws. While I believe comprehensive reform is necessary, reestablishing our traditional, time-tested usury law should be a necessary first step on the path to comprehensive reform. Accordingly, I strongly urge Congress to take the opportunity presented by the Talent-Nelson amendment to this year's defense authorization bill. This amendment reasonably re- establishes a cap on allowable interest rates charged to military personnel at a generous 36 percent per annum. Loans in excess of this amount have proven historically dangerous, economically inefficient, and geographically targeted at the military. For additional information on these issues I invite the Committee members and their staff to review my prior published writing.\4\ --------------------------------------------------------------------------- \ 4\ A bibliography of my research is available at http:// www.law.ufl.edu/faculty/peterson/.. RESPONSE TO WRITTEN QUESTIONS OF SENATOR SHELBY FROM ADM. CHARLES S. ABBOT (RET.) Q.1. While military relief societies seem to present a means to help soldiers in financial distress, a recent Washington Post article claimed that these societies have cumbersome procedures and require referrals from a ranking officer prior to obtaining financial assistance. Do these procedures create obstacles for service members and if so, what can be done to reduce or eliminate them? A.1. The mission and charter of each service's Military Aide Society (MAS) are designed to best support the requirements of the service. Each provides a different level and variety of services to their clients. All the MAS have an agreement that allows them to provide assistance to service members and families from the other military services. The Navy-Marine Corps Relief Society was established in 1904 and has been dedicated to the financial health and welfare of Sailors, Marines and families since. Though a private non- profit, volunteer service organization, we work in partnership with the Navy and Marine Corps to support the financial readiness of the service member and family. With 53 full service offices on Navy and Marine installations around the world, we provide financial, educational and other assistance to those in need. The majority of our assistance is provided for basic living expenses, vehicle repair, and emergency travel. As a charity supported by the generosity of active duty and retired Sailors and Marines, the Society has a responsibility to provide assistance based on valid needs. In every case, we require verification of eligibility, and in non-emergency cases we verify financial need. Our caseworkers are well trained, case management records are automated, and our procedures well refined and efficient. We require no referral by the service member's chain of command. Many of our clients are ``walk-ins'' at our offices. Every client's case is thoroughly reviewed by a qualified caseworker. We have a policy of confidentiality and do not involve the clients command unless there is misconduct or criminal activity. If a client's request is denied at the local level, the client may decide to involve the command and request an appeal from the Society's leadership. I am proud to say that during our most recent (2006) client satisfaction survey, the Society received a 98% satisfaction rate. ------ RESPONSE TO WRITTEN QUESTION OF SENATOR SHELBY FROM WILLIAM O. BROWN, Jr. Q.1. You criticize the Department of Defense Report methodology on several grounds. One of these grounds is that the Report fails to show how payday loans cause financial problems, rather than being a mere symptom of larger financial problems. Could you explain this lack of causation argument? A.1. The Department of Defense Report only provides anecdotes of military members that had financial difficulties and acquired payday loans. The Department of Defense does not conduct a study of bankruptcy filings by military personnel in order to determine if there is any systematic relationship between payday lending and bankruptcy. The Report provides no evidence that financial problems among military personnel are caused by their usage of payday loans. Payday loans are small denomination loans intended to solve short-term financial problems and my research indicates that most members of the military use them for that purpose. The rate of default on payday loans is in the neighborhood of 5% indicating that few individuals with payday loans have larger financial problems that would prevent the repayment of the loans. Most individuals that declare bankruptcy or experience severe financial problems have a variety of financial problems caused by unexpected negative life events or overspending. These problems are usually far larger in scale than the amount borrowed through payday lending. To the extent that those with severe financial problems use payday loans, they already have these problems when they obtain the payday loans and using them as a last attempt to pay off other creditors. ------ RESPONSE TO WRITTEN QUESTION OF SENATOR CRAPO FROM WILLIAM O. BROWN, Jr. Q.1. What would be the potential unintended consequences of price caps on individuals seeking access to the growing demand for short-term, small denomination credit? A.1. There was a study in 2005 by two economists at the FDIC that found that the current price of payday loans just cover the cost of providing this service. If prices are capped, then the industry will no longer be able to profitably provide these loans and legitimate providers will no longer offer them. There is a demonstrated need for such products by military personnel. These military personnel will no longer be able to use what they consider as a valuable source of short-term credit and will likely turn to alternative sources for their short term borrowing needs. These may include legal lenders such as pawn shops where borrowers risk forfeiting personal possessions or credit cards where borrowers are more likely to carry an ongoing credit balance. Some former payday loan customers will almost certainly turn to lenders that are willing to violate both the legal interest rate cap and legal collection practices when dealing with borrowers. Studies indicate that countries with more stringent interest rate caps on consumer loans have larger and more active illegal lending markets. As a result, the price caps may have the ultimate result of sending military borrowers to legal credit products that are less well fit for their needs or illegal credit products that come with much higher costs than the existing legal products. A combined program of encouraging more competition in the market for short-term loan products and better education about financial products among military personnel would be more beneficial than the proposed interest rate caps. ------ RESPONSE TO WRITTEN QUESTIONS OF SENATOR SHELBY FROM LYNN DRYSDALE Q.1. The Report discusses coercive actions that are often employed by lenders to collect on debts, such as garnishment of wages or attempting to collect when a customer has been deployed. The Report also mentions that many loan contracts require borrowers to waive their rights to legal action or any special legal protections afforded to them. What evidence have you seen of either coercive collections actions or mandatory waivers of important legal rights? A.1. In Florida payday lenders are called deferred presentment providers. I see many varieties of coercive collection practices and all lenders include clauses in their contracts prohibiting consumers from filing lawsuits against the lenders and cutting off other consumer rights. These contracts and practices are particularly harmful in these high cost, short- term loans because the loans are almost impossible to timely pay and are deceptively marketed. I have seen coercive collection techniques lead to the payment of payday loans before other essential household bills exacerbating rather than alleviating financial emergencies. Also, the coercion leads to stress which affects individuals and their families. Representative samples of coercive collection techniques and mandatory waivers of important legal rights follow: Mr. Hubbell and his wife are both service members. Due to the costs of his wife's illness and her inability to work, they took out a payday loan which eventually led to thousands of dollars in outstanding loans from both payday lenders and installment loan companies. Over a five year period, the more they paid, the more they owed. They have repaid tens of thousands of dollars and still owe over $12,000, a monthly payday loan debt of just over $3,500. Most of the repaid sums went to pay off other loans and provided no benefit to the Hubbells except for digging them deeper into debt. Mr. Hubbell is an air traffic controller. Therefore, he felt he had no option but to stay on the debt treadmill because of the fear created by threats of criminal prosecution and the inevitable consequence of lenders' contacts to Mr. Hubbell's command which would lead to loss of his security clearance and his rank. Lenders were harassing him on base and at home. One day a lender called him while on the ship, cussed at him and threatened him. Mr. Hubbell told the collector to contact his attorney. Twenty-five minutes later his superior officer called and said the lender had called him twice in the short period of time since he hung up from speaking with Mr. Hubbell. The collector harassed the superior officer and demanded the name and number of the base Commanding Officer. Each of the lenders required either payment by allotment or electronic assess to his bank account as additional security, required him to allow them to debit his account more than once in one day, and one required him to sign an illegal wage assignment. See Exhibit ``A'' attached. Each of the loan contracts contained a unilateral, mandatory arbitration clause. The required arbitration was expensive and prevented Mr. Hubbell from suing them for illegal actions while the lenders retained the right to take money directly from his account without prior notice. Mr. Bartholomew borrowed from a sham lender who pretended to provide ``rebates'' instead of loans when a person purportedly purchased Internet access. The disguise was used so the lender could hide criminally usurious loans, ignore the Florida anti-rollover laws and ignore Mr. Bartholomew's right to a grace period. This lender required electronic access to his account as additional security for his loan. When he was unable to keep up with payments, the lender directly debited his account for more than the amounts needed to pay off his loan. The lender also harassed him on his ship and called his superior officers. He was faced with not having enough money for groceries and rent for his family, including three small children; they debited his account multiple times in one day. When he closed the account because the lender's actions rendered the account overdrawn, the lender sent him a letter which was copied on to the official letterhead from our local State Attorney's Office threatening to put him in jail for failing to pay the loan. Mr. Bartholomew's contract also contained a unilateral, mandatory arbitration clause. The arbitration required was expensive and attempted to prevent Mr. Bartholomew from suing them for illegal actions while the lender retained the right to take money directly from his account. The clause contained in his contract also limited the remedies he could seek in arbitration. See Exhibits ``B'' (Loan Document) and ``C'' (unauthorized letter using State Attorney letterhead) attached. Mr. Wall had an installment loan through a ``military'' lender that required automatic access to his bank account for electronic payment and required him to allow multiple debits in one day for a single loan. When he did not make a timely payment, the lender ``hit'' his bank account eleven times in one day. The lender then charged him $525.00 in late and bad check fees and his credit union charged him $275.00 in NSF charges. See Exhibit ``D'' attached. The lender also included provisions in his contract preventing him from suing the lender for illegal actions and requiring him to take all claims to an expensive arbitration process in Delaware even though he was solicited and signed the loan in Florida. Lastly, his contract contained the following phrase: ``I understand that persuant (sic) to Art 134 and Art 123a of the Uniform Code of Military Justice that failure to comply with the terms of this agreement may result in a maximum penalty of a bad conduct discharge, 6 months confinement and forfeiture (sic) of all pay and allowances.'' See Exhibit ``E'' attached. Ms. Worrow obtained a loan from a ``military'' lender that was marketed online. The lender required her to pay through a military allotment check. They threatened to contact her Command if the allotment was redirected. This put Ms. W in a bind because the costs were so high for the loan that the allotment took away money she needed for food, transportation to and from work and utilities. See Exhibit ``F'' attached. Her lender also prevented her from suing them for illegal practices and required her to sign a unilateral, mandatory arbitration clause. Therefore, she could not sue them but they could take money directly from her pay check or bank account. Mr. K spent his entire day off going from payday lender to payday lender to keep from having his checks bounce. At one time, he was trying to juggle nine loans. Each time a payday loan became due he felt compelled to take out another, more expensive loan because the lenders were harassing him with illegal threats of criminal prosecution. They also contacted his superiors at work and required him to agree to automatic withdrawal from his bank account. Mr. G contacted me via email from an undisclosed location at sea. He was worried about his wife and family because of his outstanding payday loan debt. Due to threats she had received, he was afraid that the payday lender would put his wife in jail, leaving their two babies without a parent. Ms. Griffin is a Navy wife who has a payday loan with Advance America in Florida. In its contract, Advance America claimed it was a member of the Community Financial Services Association, a payday lender trade association. It also claimed it followed the Best Practices of this association published on its Web site such as promises to follow state law. Florida law requires lenders to grant at least a 60-day grace period with no additional fees, charges or costs if a borrower seeks credit counseling and prohibits ``roll-overs.'' Instead of providing the grace period, Advance America required her to roll over her loan when she could not pay. When she went to pay it off, she was $45 short, because of the ``roll over'' fee. Advance America refused the grace period even after she told them she already had the counseling at the Navy Marine Corps Relief Society, an authorized State of Florida Deferred Presentment Provider counseling agency. The director of NAS Jax NMCRS, Ret. Capt. Dave Faraldo, called the lender only to be told they did not have to talk to him and did not have to provide the grace period. The Advance America employee added she had been an employee trainer for eight years and they never had to provide the grace period. When I contacted Advance America as Ms. Griffin's attorney and provided a signed release, the employee refused to speak to me about the legally- required grace period on her account. ------ RESPONSE TO WRITTEN QUESTIONS OF SENATORS SHELBY AND JOHNSON FROM HILARY B. MILLER Q.1. Although the Report acknowledges that many payday lenders voluntarily adopt a set of best practices, it criticizes the lack of a mechanism to monitor and enforce them. Is there more the industry could be doing to make sure lenders are complying with these best practices? A.1. The industry's principal trade association, Community Financial Services Association of America (``CFSA''), seeks to enforce its Best Practices by causing them to be enacted into positive state law and by assuring that state regulators have appropriate information, authority and enforcement powers. To date, CFSA member companies have dedicated millions of dollars to this activity, and 37 states and the District of Columbia have enacted laws that incorporate CFSA's Best Practices in some part. Compliance with CFSA's Best Practices is also mandatory for CFSA's members, and the association investigates and takes appropriate enforcement steps with respect to violations. Because of both the transparency and simplicity of loan terms, consumers are highly unlikely to be misled by non- compliant lenders. The industry continues to work with legislators and regulators to assure consistent and, to the greatest extent possible, uniform regulation of these loan products. Q.2. In your testimony you state that it is contrary to the interests of the payday lending industry to have service members get into trouble with their loans. But if borrowers can not pay in full when the loan is due and choose to roll over the current loan into another, larger loan, don't lenders benefit from the additional fees that result? How frequently are loans rolled over? A.2. As noted in my prepared statement, a recent independent study showed that 49% of military enlisted payday-loan borrowers have used a payday loan no more than twice in the last year, and 79% had had no more than four loans in the last year.\1\ Of the 38 states that have permitted payday lending, 36 have strict statutory limitations on rollovers, and there is an outright ban in 22 of those states. CFSA's Best Practices ban rollovers unless they are allowed by state law, in which case rollovers are limited to the lesser of four or the state- law limit. While rollovers are frequently mentioned as an issue with payday loans, the reality is that military borrowers very rarely experience repayment problems with their loans and, as a group, are in debt for much shorter periods than their civilian counterparts. Payday lenders do not earn more in fees from a loan rollover than from a new loan. While payday lenders charge a fee for rollovers, every lender (including bank overdraft lenders, as well as mortgage lenders, credit card lenders and auto lenders) benefits to some extent when a borrower pays a fee for the privilege of paying late. This is the inherent nature of consumer lending, and it is not fundamentally wrongful or misleading. Moreover, the consequences to a borrower of not being able to extend--on a limited and responsible basis--the maturity of a payday loan may often be more costly to the borrower than the small extra fee for this service; those consequences may include adverse credit-bureau entries, bounced checks, overdraft fees, late-payment fees and other vendor charges. --------------------------------------------------------------------------- \1\ William O. Brown, Jr. and Charles B. Cushman, Payday Loan Attitudes and Usage Among Enlisted Military Personnel (2006). Available at http://www.consumercreditresearchfoundation.org/_files/ 060628MilitaryPDLSurvey.pdf (visited August 29, 2006). --------------------------------------------------------------------------- Q.3. Did your industry seek to work with DoD and give it input on this study? What, if anything, has the industry proposed to DoD to stop specific abusive practices that may occur when payday loans are made? A.3. CFSA made repeated good faith attempts to work with DoD, but DoD clearly had no interest in doing so. First, over a year ago before the study was prepared, CFSA representatives met with key DoD representatives--including some whom we understand were directly involved in preparing the report--and requested that DoD work with CFSA to address concerns with respect to payday lending to military personnel. These DoD officials showed no interest in working with CFSA and failed to follow up with any further contact. Then, while the study was being conducted, CFSA became concerned that DoD had not contacted the association or its members for information or input. Accordingly, CFSA made a number of requests for meetings with relevant DoD officials; DoD staff would schedule meetings with CFSA but subsequently cancel those meetings. Finally, again at CFSA's initiative and request, about a week before the study was released, Dr. Chu and several of his associates met with CFSA representatives. During the meeting, CFSA sought to educate DoD regarding the fundamental fallacies of certain arguments and factual assertions by opponents of the industry like the Center for Responsible Lending (``CRL''). CFSA also proposed amending federal law to include over a dozen additional safeguards for military borrowers, including a total ban on rollovers and a payment plan, but DoD had no interest in these proposals and proceeded to issue its report a few days later. I am attaching a separate memorandum summarizing CFSA's proposals to DoD. I trust that you and other Committee members will see from this memorandum that CFSA was proposing tough measures that would have prevented abuses while at the same time preserving payday loans as a credit option for service members. DoD unfortunately had no interest in adopting such responsible measures and instead continued to follow its course of blindly accepting erroneous CRL contentions and flawed studies and of recommending unwarranted measures. Q.4. Wouldn't the use of a properly constructed payment plan resolve most of the ``cycle of debt'' problems some military customers may have in repaying their loans? If so, will industry support such a plan? A.4. Absolutely. The industry supports such plans and would support them for military borrowers. In states where payment plans have been required by law, such plans have enabled tens of thousands of customers to defer payment in accordance with a plan that meets their individualized cash-flow requirements. Such plans give borrowers options rather than, as the DoD report urges, taking them away. As noted above, CFSA proposed banning rollovers and requiring an extended payment plan. The effect of such a plan would be to provide military borrowers with an interest-free, long-term principal-reduction plan that would make it just as easy to repay a payday loan as it is to obtain one. Q.5. On pages 14 and 15, the report states as a fact that the two-week loan cited by payday lenders ``is virtually nonexistent.'' It then says that Center for Responsible Lending research shows that only 1% of loans go to borrowers who take out only 1 loan a year and 91% of payday loans go to borrowers with 5 or more loan transactions per year. It says that it is the rule, not the exception, that payday loans catch the borrower in a debt trap with the average borrower paying back $834 for a $339 loan. Are these statements accurate? A.5. No. Unfortunately, the Center for Responsible Lending generally is not responsible or accurate when making most of its contentions regarding payday lending. It repeatedly puts forth erroneous ``facts'' and reaches unsupportable and misleading conclusions based on faulty and biased analyses. To date, there have been only a handful of legitimate academic studies regarding the rate of repeat payday loan usage, and these studies do not support CRL's assertions with respect to military borrowers. Among service members--which is the only relevant population for purposes of the DoD Report, not the general population--the correct facts are as set forth on page 2 above. DoD's own statistics show that the rate of usage, including repeat usage, of payday loans among military borrowers is extremely low. These low rates of usage and repeat usage were not demonstrated to be sufficiently problematic to warrant extraordinary legislative action. DoD proceeded to reject its own data and disregarded other readily available information--including independent third-party data--contrary to CRL's positions, and adopted CRL's inaccurate contentions and inappropriate ``solutions'' without critical or responsible analysis. ATTACHMENT A Case Against Prohibition of Regulated Storefront Payday Lenders as a Short-term Credit Option for Military Personnel Most public policy debates revolve around a perceived problem and a proposed solution. In this case, the Department of Defense (``the Department'', or ``DOD'') has determined that an increasing number of military personnel have become sufficiently concerned about their domestic financial obligations, to cause an adverse effect on military readiness. In response to this problem, the DOD has recommended, as one primary solution, that Congress prohibit the offering of payday advances that charge a fee exceeding 36% when annualized over 365 days (``APR''). The Community Financial Services Association of America (``CFSA'') does not question the DOD's analysis of its military's state of readiness to defend our country. In fact, no fair-minded critic of the payday advance industry has ever suggested that the owners and employees of this industry do not unequivocally support our military and the DOD's duty to protect the men and women who serve our nation. The focus of this discourse is not on the problem, but instead, on the proposed solution. It is our intention only to illustrate the inherent flaws in the proposed 36% APR cap, which would effectively apply to just one small segment of the short-term, unsecured consumer credit market and, most certainly have unintended consequences to the very ones it is intended to protect. A DISPASSIONATE ANALYSIS OF THIS SHORT-TERM, UNSECURED CREDIT MARKET INDICATES THAT PROHIBITION OF ONE SEGMENT WILL LIKELY EXACERBATE, NOT REMEDY, THE PROBLEM. Virtually every commentator who has opined upon the payday advance issue, has agreed upon at least one fact--there is an enormous demand for short-term access to money in small denominations. Consumers define short-term to mean until their next influx of cash, typically occurring on their next payday. The market satisfying this demand is estimated at approximately $100 billion and is supplied by a number of financial and quasi-financial services, none of which are traditional loan products. All of the diverse providers in this short-term, unsecured credit market offer the same end product--the ability of a consumer to access credit by entering into a fee transaction to be ``settled up'' at the customer's next receipt of income. In decreasing order by size, this market volume is composed of the following credit products: 1. Late fees--paying one creditor, or funding an immediate cash need, by delaying a payment to another creditor; 2. Bank non-sufficient funds fees--using an unfunded check, either unintentionally or intentionally, to pay a creditor by forcing your bank to ``front'' the payment until funds are available to replenish your account; 3. Courtesy overdraft, or ``bounce'', protection fees--using your bank's permission to overdraw your account, thereby creating immediate cash funds; 4. Payday advance fees at storefront lenders--using regulated payday advance lenders to ``cover'' your unfunded check until payday; 5. Payday advance fees at offshore Internet lending sites or from other subterfuge products--satisfying your need for short-term cash through lenders who are immune to state or federal regulation. A common mistake when evaluating the cost of a payday advance is to compare it to traditional loan products. Such a comparison serves no useful purpose, since the comparison would be of products that occupy very different segments of the financial services market and, accordingly, fill very different needs of consumers. A fair analysis of the payday advance service must be made in the context of the actual products and services with which it competes, and with an understanding of the real alternatives available to its customers. Below is a comparison of the costs and the total fee volumes for these market segments. COSTS AND MARKET FEE VOLUME OF CONSUMERS' SHORT-TERM UNSECURED CREDIT OPTIONS ---------------------------------------------------------------------------------------------------------------- Cost per $100 loan or Credit option Occurrence Total fee volume State Regulation ---------------------------------------------------------------------------------------------------------------- Storefront Payday Advance $15 $6 billion 38 States Offshore Internet Payday Advance $10-$40 Unknown None Bounced Check Fees $54 $22 billion NSF None + Unknown Merchant Fees Overdraft Protection Fees $27 $10 billion None Late Fees (credit card, landlord, $39 $57 billion None utilities, etc.) ---------------------------------------------------------------------------------------------------------------- THE DOD'S PROPOSED 36% APR CAP WILL ELIMINATE ONLY THE SMALLEST SEGMENT OF SHORT-TERM CREDIT OPTIONS AVAILABLE TO MILITARY PERSONNEL. A payday advance cannot be offered at a 36% APR. The typical payday advance customer is charged $15 for a $100, 14- day advance, resulting in an annualized rate of 391% (use of the APR assumes the customer takes out the loan every two weeks for 52 weeks--in reality, this virtually never occurs as most states prohibit such constant rollovers, as do our mandatory industry Best Practices). At a 36% APR, the total fee charged for that same $100 advance would be $1.38, representing a 91% reduction in gross revenue. The public filings of publicly traded payday advance companies indicate that the average net profit, after taxes, is between 10%-20% of gross revenue, well in line with, and often below, other financial services companies. No serious policy maker believes that the payday advance product can be offered with a 36% APR, a belief shared by thoughtful commentators as exhibited in this excerpt from an August 14, 2006 editorial in the St. Louis Post Dispatch: --``Sen. Talent's proposal, tacked on as an amendment to a defense bill (SB 2766), would limit the annual percentage rate to 36% percent for military members and dependents. That works out to about $1.38 on a two-week loan of $100. Payday lenders argue that's less than it costs to service such loans, and that the industry couldn't stay in business at rates that low. There's truth to that argument, and payday loans--if they're [not] allowed to snowball out of control--do serve a legitimate purpose. While the Talent/Nelson amendment has the support of the Center for Responsible Lending, a nonpartisan research center in Washington, and the Consumer Federation of America, there are other approaches. Mr. Talent might take a look at the new reforms in Illinois.'' Economists, academicians and state policy makers have substantiated the fact that this restrictive APR would not be feasible for payday advance lenders. Researchers representing many of the nation's credit unions and the Federal Deposit Insurance Corporation (FDIC), neither of which are advocates for the payday advance product, have studied the issue of cost and profitability and come to the conclusion that the costs largely justify the price. Below are two references from such studies. The Economics of Payday Lending, John P. Caskey, Filene Research Institute & The Center for Credit Union Research, Madison, WI, 2002. --``Another possible approach to the rise of payday lending would be for credit unions to undercut payday lenders by offering low-cost small-value loans to payday loan customers. But this approach is unlikely to be successful. If a credit union were to find good loan candidates and charge them its top loan rate of 18% APR for a short-term small-value loan, this would not cover its costs.'' --``For example, a $200 two-week loan at 18% APR would generate $1.38 in interest, not enough to cover even the origination cost. In other words, the high cost of payday loans substantially reflects the high cost of making small-value, short-term loans.'' Payday Lending: Do the costs justify the price?, Mark J. Flannery and Katherine Samolyk, for the Center for Financial Research, FDIC, 2005. --``The payday advance product's structure makes it costly to originate these short-term loans, whose default rates substantially exceed the customary credit losses at mainstream financial institutions.'' --. . .``an important reason why advance fees are high is that the loan is short-term and non-amortizing.'' --``We find that fixed operating costs and loan losses justify a large part of the high APR charged on payday advance loans . . . These operating costs lie in the range of [payday] advance fees, suggesting that payday loans may not necessarily yield extraordinary profits.'' --``These APRs substantially exceed the rates associated with mainstream consumer credit products, although some mainstream services (e.g., overdraft protection fees or credit card late payment fees) might translate into similar APRs if providers were required to report such information.'' Additionally, policy makers in 37 states (plus D.C.) have studied the rate issue and passed legislation allowing an average fee of $17.50 per $100. In fact, Indiana, Kansas and Rhode Island, having previously enacted restrictive fees averaging about $12.50 per $100, repealed those rates in favor of a $15 per $100 fee. Policymakers in these states found that rates below $15 per $100 had restricted competition and forced consumers to more expensive, less desirable and even unregulated alternatives. AVAILABILITY OF MARKET ALTERNATIVES MAKES IT UNLIKELY THAT ELIMINATION OF THE STOREFRONT PAYDAY ADVANCE OPTION FOR SERVICEMEMBERS WILL DECREASE THE READINESS PROBLEM. On the surface, it might seem reasonable to assume that reducing the annual percentage rate (from 391% to 36%) paid by military personnel for a storefront payday advance might correspondingly reduce the DOD's military readiness problem. Given the current market short-term credit alternatives discussed previously, the reality must be that it will either have no effect, or intensify the problem. What is clear is that the expected result of lowering the APR of a storefront payday advance to 36% will not occur--but the unintended result of forcing the military to more expensive, or more dangerous alternatives, surely will. As noted earlier, there exists a $100 billion demand for financial services that provide immediate access to needed money or credit. Storefront payday advances comprise about 6% of the supply side of that market. The remaining 94% of the market will not be subject to the 36% rate cap. Since prohibition of the storefront payday advance service option will not eradicate the demand for the service by the 6% of customers in the market that currently use it, those customers will simply shift to one of the other alternative products available. Case studies of consumers who had unfortunate, and sometimes dire, experiences with these other sources of higher cost credit are plentiful. Consider just these few recent examples. -- Mark Keil, of Dayton, OH, stopped at a convenience store for $19.45 worth of cigarettes. The expense cleared his debit card, along with several others over the next several days, but he didn't know his bank had automatically covered these overdrafts. He paid $198 to his bank for covering $59 in overdrafts. Six months later he had amassed $1,194 in overdraft fees. (AARP Magazine, September & October 2006) -- Carolyn Russell, of Fort Worth, TX and living on a fixed income, called her bank and was told she had $2.32 available in her checking account. She immediately bought that amount of gas for her car. Eight days later she received a notice from her bank that she was overdrawn by two cents and required to pay a $36 fee. After calling to inquire, she went to the bank the next day to pay the overdraft, which by then had grown to more than $70, due to daily penalties. (Star Telegram, July 7, 2006) -- Unidentified customer from Bristol, TN, signed up for a payday loan on the Internet and it ``turned into a nightmare. They were debiting my bank account, so months later I was still getting deductions from my bank account . . . On the whole run I lost about three or four hundred dollars.'' (Briston Herald Courier, January 4, 2006) -- Fatemeh Hosseini, of Sunnyvale, CA, worked a second job to try to keep up with her credit card payments. Although she had stopped using her cards to buy anything, in two years her debt nearly doubled. ``That's because Hosseini's payments sometimes were tardy, triggering late fees ranging from $25 to $50 and doubling interest rates.'' She eventually filed for bankruptcy. (The Washington Post, March 6, 2005) These readily available alternatives have raised the ire of consumer advocates, credit union officials and state regulators of financial services: -- Paying overdraft fees ``can be as costly as payday loans . . . $80 one week overdraft loan with a $26.90 fee equals 1,753% interest.'' (Center for Responsible Lending issue paper on bank overdraft fees, April 2006) -- ``Critics also contend that bounce-protection fees, as high as $37 per transaction, are little more than high-priced credit. ``If a bank lends you $100 and charges you a $20 fee--and then you pay the money back in two weeks--that's an annualized interest rate of 520%,'' notes Jean Ann Fox, director for consumer protection at the Consumer Federation of America in Washington. ``It's worse than a payday loan.'' (Business Week, May 2, 2005) -- ``These products [overdraft ``bounce'' protection] are worse than payday loans. With payday loans at least you get a disclosure, which is required by federal law, so you know how much they're gouging you,'' says Chi Chi Wu with the National Consumer Law Center. (AARP Magazine, September & October 2006) -- ``About 80% of our members are using courtesy pay the way it was intended just a few times a year here and there,'' explained First Financial Federal Credit Union CEO Rob Windsor. ``But 20% were paying us a lot more than they should be . . . Our courtesy pay fee is $15, which is pretty low, but even with that low fee, we see people who are paying thousands in courtesy pay fees.'' (Banking Wire, March 2, 2006) -- ``A common complaint against online payday lenders is that the customer is required to give banking information, whereas if they walk into a payday lender store they give them a postdated check. But what's happening online is the payday lender uses the bank information to make unauthorized withdrawals from the consumer's account. They say they're collecting funds owed to them. They can make these withdrawals in a way they can't with a postdated check,'' said Karolyn Klohe, financial legal examiner, WA Department of Financial Institutions. (Bankrate.com, September 12, 2005) -- ``People who use online payday lenders risk losing money, paying excessive fees and having their identities stolen, the Nebraska Department of Banking and Finance warned Tuesday. `Using the Internet for this type of transaction puts the borrower back into an unregulated electronic alley, possibly dealing with lenders from foreign countries,' said John Munn, director. (Omaha World-Herald, April 12, 2006) The previously discussed alternative short-term credit products each fill a niche and may be, depending on the circumstances, a better or worse choice for a consumer than a payday advance. But no one can deny that, if a consumer is seeking a payday advance from a storefront lender, it will in many cases be: 1. less expensive than NSF/merchant fees, overdraft protection fees, most internet lending fees and some late fees; 2. safer than a transaction with an internet lender located overseas; 3. void of any negative impact on the customer's credit score, unlike NSF or late fees. It is ironic that storefront payday advances represent -- the smallest segment of a distinct market -- often the least expensive supplier in that market -- an industry that fully discloses all costs associated with the transaction and seeks responsible regulation from state policy makers . . . and, yet, is the only significant supplier in the market subject to prohibition by the DOD proposed 36% rate cap. TRADITIONAL, LOWER COST ALTERNATIVES TO PAYDAY ADVANCE LOANS, BOUNCED CHECK FEES AND LATE BILL PAYMENTS CANNOT FILL THE DEMAND FOR THIS SHORT-TERM, LOW DENOMINATION CREDIT. Even with the best intentions and advocacy efforts, the DOD and other organizations are not equipped to provide enough alternative financial resources to eliminate the $100 billion short-term credit market in the foreseeable future. Given the level of consumer demand, if business enterprises could offer them at 36% APR, traditional financial institutions would already be doing so. Even non-profit entities--with well-funded operating resources, tax-exempt status and a mission to provide affordable financial aide to those in need--have found it difficult, if not impossible, to offer low-cost alternatives to payday advances. While a number of institutions have talked about providing low cost alternatives to payday advance loans, there has been little real progress made in offering similar, viable products that are attractive to consumers. In fact, there is one school of thought that traditional financial institutions may have little incentive to do so. The Annie E. Casey Foundation has recently released a report, authored by former Assistant Secretary of the U.S. Department of the Treasury and current Chairman of the FDIC Sheila Bair, entitled, ``Low-Cost Payday Loans: Opportunities and Obstacles.'' (http://www.aecf.org) The report underscores the importance of small-denomination, short-term loans and encourages banks and credit unions to offer lower cost payday loan alternatives to their customers. But the report points out that banks and credit unions may be reluctant to do so, saying: --``Though depository institutions have the means to offer low-cost payday loan alternatives, the proliferation of fee-based bounce protection programs represents a significant impediment to competition.'' --``. . . fee-based bounce protection programs are functionally equivalent to payday loans when used by customers as a form of credit. When used on a recurring basis for small amounts, the annualized percentage rate for fee-based bounce protection far exceeds the APRs associated with payday loans.'' --``To the extent so many depository institutions are relying on bounce protection for significant fee income, they may view it as against their own interests to cannibalize profits through development of other, lower-cost forms of small dollar credit.'' The report goes on to say that payday loans can be the lowest-cost option available to some consumers: --``Interviews and industry survey indicate that payday loan customers do make a cost analysis in comparing the price of a payday loan with the alternative costs of bouncing a check and/or incurring late fees.'' --``When used on a recurring basis for small amounts, the annualized percentage rate for fee-based bounce protection far exceeds the APRs associated with payday loans.'' --``. . . APR disclosure of fee-based bounce protection might help payday loan vendors, since for some consumers, their product will be less expensive.'' CFSA supports the exploration and encouragement of payday advance alternatives. The entry of traditional financial institutions into the payday advance market would accelerate overall acceptance of the service and provide more consumer choices--both having positive effects on consumers and the industry. In the interim, consumers need to have viable and safe credit options. And while a payday advance isn't the best choice for consumers in every situation, increasing evidence shows it is often the lower cost, more desirable alternative. THE CFSA PROPOSAL CFSA has continually worked with legislators, regulators, policymakers, customers and critics around the country to resolve concerns about the payday advance product. To that end, 37 states have passed legislation that balances consumer protections with the consumer's right to continued access to the product. After passage of such legislation, it is common to see the number of complaints filed with the state regulator, statistically disappear. It is also important to note that, while thousands of legislators have participated in hundreds of hearings in which the rate issue has been debated and votes have been taken, no legislature has passed a fee cap that results in a 36% APR for payday advances. There are two reasons that such attempts at 36% APR caps fail. First, it is understood that such a cap is implicit prohibition of the product, thereby taking a choice away from consumers instead of empowering the consumer with options. Legislators' sentiments seem to echo remarks made by Jeffrey M. Lacker, president ofthe Federal Reserve Bank of Richmond, at the Conference of State Bank Supervisors May 18, 2006: --``Much of the popular response to consumer credit expansion and its byproducts has been less about prudential supervision, however, and more about consumer protection. Many proposals amount to calls for lending restrictions or the outright prohibition of some lending practices. This strikes me as a dangerous approach. In the long run, it would tend to slow innovation and constrain the availability of financial products to a broad range of consumers in order to protect the relatively few who use a credit product inappropriately or unadvisedly.'' Second, nearly all policy informed makers understand that rate is not the issue on which to focus. The first reason serves as the basis for why a 36% rate will not help the DOD solve its problem. The second reason forms the foundation of CFSA's proposal to help do so. It is not a $15 fee that causes some consumers to struggle with a payday advance, but, rather, the repayment of the $100 principal amount--which is a common issue for all the products serving this market. While customers are able to repay a $15 payday advance fee, or the $25 overdraft fee or even the $39 late fee, some will have difficulty repaying the underlying principal balance. It is those customers that need a safety net to help them manage their obligations, without making their situation any worse. CFSA would be willing to discuss a payment plan option that would allow military customers to repay their principal balance due, over many months, without the accumulation of any interest or charges. A military customer would be eligible for the plan under either of two conditions: 1. the customer has completed a DOD-approved financial readiness program; or 2. the customer has entered into 4 or more consecutive payday advances. Under either condition, the customer would be able to unilaterally convert his payday advance into a longer term, less expensive installment loan, which, when adding in the initial payday advance fee, would result in an overall APR of 36% or less. The dual conditions would require payday advance companies to provide this special assistance to those members of the military who have either chosen to help themselves through financial readiness programs or have exhibited the need to be helped by their demonstrated repeated use of the service. At the same time, however, DOD would be allowing continued access to the product for all others, who neither seek nor need such assistance. CFSA Is Willing to Discuss a Number of Consumer Protections for the Military, Many of Which Have Been Promoted and Implemented in Various States: Provide military customers the unfettered opportunity to convert payday advance transactions into longer term, cost-free payment plans (resulting in a 36% APR), if either of the following events occur: The customer completes a DOD- approved financial readiness program; or The customer enters into 4 or more consecutive payday advance transactions. Prohibit the rollover of payday advances by military customers. Require unambiguous and uniform price and term disclosures. Require payday advance companies to provide information to the military customer concerning appropriate use of the service, counseling options and alternative programs and products available to the customer. Prohibit prepayment penalties and require the rebate of unearned fees. Prohibit mandatory arbitration clauses which are unconscionable, oppressive, unfair or substantially in derogation of the rights of the military customers. Prohibit the garnishment, or allotment, of military wages. Prohibit the payday advance company from contacting, or threatening to contact, the customer's commanding officer or any other person in the customer's military chain of command, in effort to collect on an advance. Prohibit the waiver of a military customer's rights under the Servicemembers Civil Relief Act or under any other federal or state law. Prohibit the use of any representations or symbols that suggest, give the appearance of, or provide reasonable cause to believe, that any component of the Armed Forces, the Department of Defense, or any other federal entity sponsors or endorses the payday advance company. Require payday advance companies to defer all collection activity and halt the accrual of interest or any other fees, upon the deployment of a military customer to a combat, combat support or combat service support posting. Provide military customers the right to rescind a payday advance, without cost, within 2 business days of entering into the transaction. Prohibit payday advance companies from threatening or pursuing criminal action against a military customer as a result of the customer's check being returned unpaid or the customer's account not being paid. Consider the use of payday advance locations as platforms for the dissemination of DOD approved financial readiness materials. Conclusion The Department of Defense has voiced its concern--the financial obligations of our military men and women should not escalate into a distraction from their duties, nor should it impair the country's military readiness. In addressing this concern, the Department may: 1. Attempt to eliminate the storefront payday advance option, and naively hope that its personnel choose not to use the unrestricted alternative products, or 2. Allow CFSA to work with the Department in designing and implementing real, effective solutions regarding payday loans for the military personnel who need assistance. We are prepared to offer you a list of references from across the country that will confirm that CFSA has successfully resolved the concerns of many of its critics and, in doing so, has demonstrated its integrity and good faith. We respectfully request the opportunity to enter into such discussions with the Department of Defense. ------ RESPONSE TO WRITTEN QUESTIONS OF SENATOR SHELBY FROM CHRISTOPHER L. PETERSON Q.1. It is my understanding that you conducted a study that found that payday lenders were disproportionately located near military installations. How many locations did you examine as part of your study and what do you think are the implications of these findings? A.1. Steven Graves, a Geography Professor at the University of California at Northridge, and I recently published a study on predatory lending to military personnel. The full citation to the study is Steven M. Graves & Christopher L. Peterson, Predatory Lending and the Military: The Law and Geography of ``Payday'' Loans in Military Towns, 66 OHIO STATE LAW JOURNAL 653-832 (2005). It should be available in the Library of Congress and any other law library around the country. Moreover, a copy of the study accompanies this correspondence. We would be honored to have the study or any portion thereof accompany the written record of this hearing. In conducting our study, we examined 20 states, 1,516 counties, 13,253 ZIP codes, nearly 15,000 payday lenders, and 109 military installations. Our study found high concentrations of payday lending businesses in counties, ZIP codes, and neighborhoods in close proximity to military bases. In order to assure that this pattern of ``clustering'' around military bases was not caused by factors unrelated to the presence of military personnel, we controlled our observations by comparing the density of payday lender locations to that of bank locations. Even when accounting for commercial development patterns and zoning ordinances with bank locations, payday lender location patterns unambiguously show greater concentrations per capita near military populations. We believe our findings stand as conclusive proof that the payday lending industry targets members of the armed forces and their families. In addition to our empirical findings, our research included an extensive discussion of sociological and historical literature on the financial well being of military families. We concluded that clustering of payday lenders around military installations was the most recent incarnation of an ancient history of predatory lending to military personnel both in our country and around the world. Payday loans, which typically have interest rates of between 300 and 900 percent, are extremely dangerous financial products that can trap consumers with modest income in a ruinous cycle of high cost borrowing. Our study recommended reestablishing the traditional American response to predatory lending: usury law. For the great majority of the past century, the American government protected service members from high-cost predatory loans with usury laws limiting interest rates to between 18% and 42% per annum. Through federal preemption and state legislative change, these laws have given way to an environment in which service members are literally surrounded by lenders clamoring to charge annual rates averaging around 450%. Military personnel both in ancient history and contemporary America have chronic financial vulnerabilities owing to their demanding and semi-nomadic lifestyles. Inevitably, many struggling military personnel and their families find the temptation of short term financial quick fixes advertised as ``easy,'' ``no hassles,'' ``no credit check,'' or ``quick cash'' too difficult to pass up. [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Additional Material Submitted for the Record Hilary B. Miller, Attorney at Law Greenwich, CT, September 20, 2006 Hon. Melquiades R. Martinez, 317 Hart Senate Office Building Washington, DC. Re: Predatory Lending Practices Directed At Members of the Armed Forces and Their Dependents Dear Senator Martinez: In the limited time available for last Thursday's hearing, it was not possible to provide complete information regarding the finance charges applicable to payday advances. On behalf of Community Financial Services Association of America, I write to supplement my responses at the hearing. The finance charge for a payday advance is largely a function of the lender's costs (principally occupancy and personnel expenses). An FDIC study cited in my prepared remarks estimates that the these costs are approximately $13-$14 per $100 of loan principal advanced.\ 1\ Thus, a finance charge of $15 per $100 to the consumer is, to use your term, entirely ``conscionable'' and results in a very normal profit margin to the lender. --------------------------------------------------------------------------- \ 1\ Mark Flannery and Katherine Samolyk, Payday Lending: Do the Costs Justify the Price? FDIC Center for Financial Research Working Paper No. 2005-09. http://www.fdic.gov/bank/analytical/cfr/ workingpapers.html#payday (visited August 29, 2006). --------------------------------------------------------------------------- There is considerable evidence that the industry's margins are not exorbitant, insofar as most of the largest operators are public companies and have readily ascertainable, audited profit figures. The absence of inappropriate profits makes sense when you consider that, unlike an installment or mortgage lender--which is able to recoup its costs through finance charges collected over a period of three, five or even thirty years--a payday lender must recover its entire costs of origination and servicing over the initial two-week typical loan term. Moreover, the industry is nearly perfectly competitive. With over 22,000 retail outlets (and innumerable Internet-based providers), and very low barriers to entry, prices would be expected to converge toward lenders' marginal costs--and indeed that is precisely what has occurred. To phrase it differently, if the payday lending business were ``unconscionably'' profitable, lenders would be expected to flood the market and drive interest rates down. Consumers can (and do) readily comparison shop because the industry universally quotes pricing both as a finance charge in dollars and as an annual percentage rate (as required by the Truth In Lending Act). Finally, you asked why it might be appropriate for a young service member to borrow at the seemingly high annual percentage rates charged by payday lenders. Just as commuters understand that taxicabs are valuable and convenient when used for short-term travel needs but too expensive for extended trips, consumers understand that payday advances are useful when utilized for short-term needs but inappropriate for long-term borrowings. To America's working middle class, the payday- advance product serves as a dignified, discreet and cost-efficient ``financial taxi'' to tide the borrower over to his next payday when faced with an unexpected cash need. Although it is tempting to cite high annualized interest rates as problematic, the use of annualized rates is inappropriate when comparing extremely short-term credit options. The vast majority of military borrowers have payday-loan credit outstanding for only a few weeks per year.\2\ --------------------------------------------------------------------------- \ 2\ William O. Brown, Jr. and Charles B. Cushman, Payday Loan Attitudes and Usage Among Enlisted Military Personnel (2006). Available at http://www.consumercreditresearchfoundation.org/files/ 060628MilitaryPDLSurvey.pdf (visited August 29, 2006). --------------------------------------------------------------------------- Rollovers were mentioned at the hearing as a potential problem, but 36 of the 38 states that permit payday lending have strict statutory limitations on rollovers. For example, Florida forbids all rollovers. Fla. Stat. Ann. Sec. 560.404(18). In contrast to this reality, the technical APR computation requires an assumption that the loan will be rolled over 25 times (even though the permitted number of rollovers is zero). The actual interest rate on the loan is 15%, but the theoretical APR figure is 391%. Thus, I am sure that you can understand how we believe that focusing on the APR is extremely misleading and typically presents a distorted picture of the real cost of payday loans. As noted in my prepared remarks, analysis of the cost of payday- advance credit must take into account the cost to the borrower of not obtaining such credit. Faced with the alternative of writing a check that may ``bounce'' or of a utility disconnect--often with implicit annualized costs in excess of 1,400% when expressed in APR terms for purposes of comparison--or being unable to afford repairs to a car needed for commuting to work, the modest cost of a short-term payday advance will almost always represent a good tradeoff for the borrower.\3\ --------------------------------------------------------------------------- \3\ ``Critics also contend that [overdraft] bounce protection fees, as high as $37 per transaction, are little more than high-priced credit. `If a bank lends you $100 and charges you a $20 fee--and then you pay the money back in two weeks--that's an annualized rate of 520%,' notes Jean Ann Fox, director for consumer protection at the Consumer Federation of America in Washington. `It's worse than a payday loan.' ''--Business Week, May 2, 2005. --------------------------------------------------------------------------- The following table shows how a payday loan may be advantageous when compared with other forms of credit that a middle-income military consumer may choose: -------------------------------------------------------------------------------------------------------------------------------------------------------- Credit card Late/Disconnect $100 Bounced Credit alternative $100 Payday $100 Overdraft late fee on fee on $100 check NSF/ advance protection $100 bill utility bill merchant -------------------------------------------------------------------------------------------------------------------------------------------------------- Fee................................................................ $15.00 $26.90 $32.61 $46.16 $53.68 Effective APR...................................................... 391% 701% 850% 1,203% 1,400% -------------------------------------------------------------------------------------------------------------------------------------------------------- Against this backdrop, a payday loan may be a very wise choice for a service member. We respectfully urge you that there are two sides to this issue, and the DoD report contains only one of them. We will work diligently with you and your staff to make sure that you can make an informed and principled decision regarding this matter. Thank you for you courtesies at the hearing and for your efforts on behalf of our service members and our nation. Very truly yours, /s/ Hilary B. Miller