SPONSOR: |
Rep.
Keeley & Sen. Henry |
|
Reps. Ennis, Hall-Long,
Johnson, Kowalko, Longhurst, McWilliams, Mulrooney, Plant, Schooley, B.
Short, Williams; Sens. Marshall, Sokola |
HOUSE OF REPRESENTATIVES 144th GENERAL ASSEMBLY |
HOUSE BILL NO. 210 |
AN ACT TO AMEND TITLE 5 OF THE DELAWARE CODE RELATING TO PREDATORY REFUND ANTICIPATION LENDING. |
WHEREAS,
refund anticipation lending involves a loan in which a taxpayer borrows money
based on the estimated value of the taxpayer’s annual tax return; and
WHEREAS,
for most low- and moderate-income taxpayers, their annual tax refund is the
largest single lump-sum payment that they will receive each year; and
WHEREAS,
there is evidence that this lump-sum payment is used for wealth-generating
activities, such as savings, tuition payments or transportation expenses (which
enlarge employment opportunities); and
WHEREAS, the refund anticipation lending
industry has a very high incidence of predatory lending practices, and such
lending practices are a serious threat to the economic well being of the
Citizens of Delaware; and
WHEREAS, predatory refund anticipation
lending involves the use of abusive lending practices, such as charging
excessively high interest rates and fees; and
WHEREAS, predatory lenders often use high-pressure tactics to charge customers these extremely high, unaffordable interest rates and fees; and
WHEREAS,
the annual percentage rates for refund anticipation loans range from 40% to
700%; and
WHEREAS, in 2004 and 2005 alone, in
connection with refund anticipation loans low- and moderate-income taxpayers
paid lenders and tax preparers nearly $2 billion in fees, alone; and
WHEREAS, if
such taxpayers were advised by their tax preparer or lender that they may file
an expedited tax return electronically or by way of the internet and, by doing
so, that they could receive their tax return only days after receiving any
loan, and would thereby eliminate many of the interest payments and fees that
the taxpayer makes -- if not entirely eliminating such taxpayer’s need to take
out a loan; and
WHEREAS, such predatory lenders tend to
target the elderly and low-income households - groups
of citizens who can least afford to be stripped of such important income and
wealth-generating vehicles like their tax returns; and
WHEREAS, the dramatic
increase in the incidence of predatory refund anticipation lending practices
has been particularly harmful to elderly, low-income, minority, and rural
citizens, as well as the men and women of our nation’s armed forces; and
WHEREAS, the cost of
predatory refund anticipation lending is not only significant for individual
families, but such lending also has a significant “neighborhood impact” as
entire communities lose a substantial portion of their revenue stream due to
excessive costs related to such predatory lending; and
WHEREAS, the State of
Delaware must act to protect its Citizens from abusive lending practices, while
preserving and promoting reasonable lending practices;
NOW THEREFORE:
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section
1. This
Act shall be called the “Delaware Predatory Refund Anticipation Lending
Prevention Act”.
Section
2. Amend Chapter 22, Title 5 of the
Delaware Code, by adding a new Subchapter VII to read as follows:
“Subchapter VII. Predatory Refund Anticipation Lending
Prevention Act.
§ 2292. Definitions.
As used in this Subchapter, unless
the context requires a different meaning:
(1)
“Applicant” means a customer who applies for a refund anticipation loan
through a facilitator.
(2)
“Borrower” means an applicant who receives a refund anticipation loan
through a facilitator.
(3)
“Commissioner” means the State Bank Commissioner of the State of
Delaware.
(4)
“Customer” means an individual for whom tax preparation services are
performed.
(5)
“Facilitator” or “lender” means an entity that receives or accepts for
delivery an application for a refund anticipation loan, delivers a check in
payment of refund anticipation loan proceeds, or in any other manner acts to
allow the making of a refund anticipation loan.
(6)
“Member of the military” means a person serving in the armed forces of
the United States, the Delaware National Guard, or any reserve component of the
armed forces of the United States.
“Member of the military” includes those persons engaged in (i) active
duty, (ii) training or education under the supervision of the United States
preliminary to induction into military service, or (iii) a period of active
duty with the State of Delaware under Title 10 or Title 32 of the United States
Code pursuant to order of the President of the United States or the Governor of
the State of Delaware.
(7)
“Refund anticipation loan” means a loan, whether provided through a
facilitator or by another entity such as a financial institution, in anticipation
of, and whose payment is secured by, a customer's federal or state income tax
refund or by both.
(8)
“Refund anticipation loan fee” means any fee, charge, or other
consideration imposed by a lender or a facilitator for a refund anticipation loan.
The term does not include any fee, charge, or other consideration usually
imposed by a facilitator in the ordinary course of business for non-loan
services, such as fees for preparing tax returns and fees, if any, for the
electronic filing of tax returns.
(9)
“Refund anticipation loan fee schedule” means a list or table of refund
anticipation loan fees that includes three or more representative refund
anticipation loan amounts. The schedule shall separately list each fee or
charge imposed, as well as a total of all fees imposed, related to the making
of a refund anticipation loan. The schedule shall also include, for each
representative loan amount, the estimated annual percentage rate calculated
under the guidelines established by the federal Truth in Lending Act (15 U.S.C.
§ 1601, et seq.).
(10)
“Tax return” means a return, declaration, statement, refund claim, or
other document required to be made or filed in connection with state or federal
income taxes.
§ 2292(A).
Lending practices concerning members of the military.
(a)
A facilitator may not garnish the wages or salaries of a consumer who is
a member of the military.
(b)
In addition to any rights and obligations provided under the federal
Servicemembers Civil Relief Act, a facilitator shall suspend and defer
collection activity against a consumer who is a member of the military and who
has been deployed to a combat or combat support posting for the duration of the
deployment.
(c)
A facilitator may not knowingly contact the military chain of command of
a consumer who is a member of the military in an effort to collect on a refund
anticipation loan.
(d)
A facilitator must honor the terms of any repayment plan that they have
entered into with any consumer, including a repayment agreement negotiated
through military counselors or third‑party credit counselors.
§ 2293. Information, reporting, and examination.
(a) A facilitator shall keep and use books, accounts, and records that will enable the Commissioner to determine if the facilitator is complying with the provisions of this Act and maintain any other records as required by the Commissioner.
(b) A facilitator shall collect and maintain information annually for a report that shall disclose in detail and under appropriate headings:
(1) the total number of refund anticipation loans made during the preceding calendar year;
(2) the total number of refund anticipation loans outstanding as of December 31 of the preceding calendar year;
(3) the minimum, maximum, and average dollar amount of refund anticipation loans made during the preceding calendar year;
(4) the average annual percentage rate and the average term of refund anticipation loans made during the preceding calendar year;
(5) the total number of refund anticipation loans paid in full, the total number of loans that went into default, and the total number of loans written off during the preceding calendar year; and
(6) the total number of lawsuits filed by the facilitator or its agent against consumers to collect on refund anticipation loans from consumers during the preceding calendar year. The report shall be verified by the oath or affirmation of the owner, manager, or president of the facilitator. The report must be filed with the Commissioner no later than March 31 of the year following the year for which the report discloses the information specified in this subsection (b). The Commissioner may impose upon the facilitator a fine of $25 per day for each day beyond the filing deadline that the report is not filed.
(c) No later than July 31 of the second year following the effective date of this Act, the Commissioner shall publish an annual report that contains a compilation of aggregate data concerning the refund anticipation lending industry in the State of Delaware and shall make the report available to the Governor, the General Assembly, and the general public.
(d)
The Commissioner shall have the authority to conduct examinations of the
books, records, and loan documents at any time.
The Commissioner’s authority to supervise and examine a lender or
facilitator as set forth in this Subchapter shall be in addition to any other
or further supervisory or examination authority of the Commissioner established
in any other section of Chapter 22, Title 5.
This section shall control if there is a conflict between this section
and any other section of Chapter 22.
§
2293(A). Licensure and Licensure
requirement
(a) Except as
provided in subsection (b) on and after the effective date of this Act, a
person or entity acting as a facilitator must be licensed by the Commissioner
as provided in this Act.
(b) A person or
entity acting as a facilitator who, on the effective date of this Act, is
otherwise in compliance with all other licensure requirements under Chapter 22,
Title 5 need not comply with subsection (a) until the Commissioner takes action
on the person's or entity's application for a refund anticipation loan license.
However, such application must be submitted to the Commissioner within 6 months
after the effective date of this Act.
(c) A person or
entity acting as a facilitator shall be subject to the licensure requirements
set forth in this Subchapter as well as any additional licensure requirements
under any other section of Chapter 22, Title 5.
This section shall control if there is a conflict between this
section and any other section of Chapter 22.
§
2294. Licensure.
(a) A license to
make a refund anticipation loan shall state the address, including city and
state, at which the business is to be conducted and shall state fully the name
of the facilitator. The license shall be conspicuously posted in the place of
business of the facilitator and shall not be transferable or assignable.
(b) An application
for a license shall be in writing and in a form prescribed by the Commissioner.
The Commissioner may not issue a refund anticipation loan license unless and
until the following findings are made:
(1) that the
financial responsibility, experience, character, and general fitness of the
applicant are such as to command the confidence of the public and to warrant
the belief that the business will be operated lawfully and fairly and within
the provisions and purposes of this Act; and
(2) that the
applicant has submitted such other information as the Commissioner may deem
necessary.
(c) A license shall be issued for no longer than one year,
and no renewal of a license may be provided if a facilitator has substantially
violated this Act and has not cured the violation to the satisfaction of the
Commissioner.
(d) A facilitator
shall appoint, in writing, the Secretary of the State of Delaware as attorney‑in‑fact
upon whom all lawful process against the facilitator may be served with the
same legal force and validity as if served on the facilitator. A copy of the
written appointment, duly certified, shall be filed in the office of the
Secretary, and a copy thereof certified by the Secretary shall be sufficient
evidence to subject a facilitator to jurisdiction in a court of law in the
State of Delaware. This appointment shall remain in effect while any liability
remains outstanding in this State against the facilitator. When summons is
served upon the Secretary as attorney‑in‑fact for a facilitator,
the Secretary shall immediately notify the facilitator by registered mail,
enclosing the summons and specifying the hour and day of service.
(e) A facilitator
must pay an annual fee of $1,000. In addition to the license fee, the
reasonable expense of any examination or hearing by the Commissioner under any
provisions of this Act shall be borne by the facilitator. If a facilitator
fails to renew its license by December 31, its license shall automatically
expire; however, the Commissioner, in his or her discretion, may reinstate an
expired license upon:
(1) payment of the
annual fee within 30 days of the date of expiration; and
(2) proof of good cause for failure to renew.
(f) Not more than
one place of business shall be maintained under the same license, but the
Commissioner may issue more than one license to the same facilitator upon compliance
with all the provisions of this Act governing issuance of a single license. The
location may not be within one mile of a horse race track or a facility at
which gambling is conducted subject to the laws of this State, or within one
mile of any State of Delaware or United States military base.
(g) No facilitator shall conduct the business of making
loans under this Act within any office, suite, room, or place of business in
which any other business is solicited or engaged in unless the other business is
licensed by the Commissioner or, in the opinion of the Commissioner, the other
business would not be contrary to the best interests of consumers and is
authorized by the Commissioner in writing.
(h) The Commissioner shall maintain a list of facilitators that
shall be available to interested consumers and the public. The Commissioner
shall maintain a toll‑free number whereby consumers may obtain
information about facilitators. The Commissioner shall also establish a
complaint process under which an aggrieved consumer may file a complaint
against a facilitator or non-facilitator who violates any provision of this
Act.
(i) The licensure requirements set forth in this Subchapter
shall be in addition to any other licensure requirements under any other
section of Chapter 22, Title 5. This
section shall control if there is a conflict between this section and any other
section of Chapter 22.
§
2294(A). Closing of business; surrender
of license.
At least 10 days before a facilitator ceases operations,
closes the business, or files for bankruptcy, the facilitator shall:
(1) Notify the Commissioner of its intended action in
writing.
(2) With the exception of filing for bankruptcy, surrender
its license to the Commissioner for cancellation. The surrender of the license
shall not affect the facilitator’s civil or criminal liability for acts
committed before or after the surrender or entitle the facilitator to a return
of any part of the annual license fee.
(3) Notify the Commissioner of the location where the
books, accounts, contracts, and records will be maintained. The accounts,
books, records, and contracts shall be maintained and serviced by the
facilitator, by another facilitator under this Act, or by the Commissioner.
(4) The requirements set
forth in this section shall be in addition to any other relevant requirements
under any other section of Chapter 22, Title 5.
This section
shall control if there is a conflict between this section and any other section
of Chapter 22.
§
2295. Advertising and disclosures.
(a)
Any facilitator who advertises the availability of a refund anticipation
loan shall not directly or indirectly represent the loan as a customer's actual
tax refund. Any advertisement that mentions a refund anticipation loan shall
state conspicuously that it is a loan and that a fee or interest will be
charged by the lending institution. The advertisement shall also disclose the
name of the lending institution. All advertisements and disclosures required
pursuant to this Act must be in both English and Spanish.
(b)
Every facilitator who offers to facilitate, or who facilitates, a refund
anticipation loan to a customer shall display a refund anticipation loan
schedule showing the current fees for refund anticipation loans facilitated at
the office, for the electronic filing of a customer's tax return, for setting
up a refund account, and any other related activities necessary to receive a
refund anticipation loan. The fee schedule shall also include a statement
indicating that a customer may have the tax return filed electronically without
also obtaining a refund anticipation loan.
(c)
The posting required by subsection (b) shall be made in not less than
28-point type on a document measuring not less than 16 by 20 inches. The
postings required in this section shall be displayed in a prominent location at
each office where any facilitator is offering to facilitate or is facilitating
a refund anticipation loan.
(d)
Prior to an applicant's:
(1)
Completion of the refund anticipation loan application, a facilitator
that offers to facilitate a refund anticipation loan shall provide to the
applicant a clear disclosure containing all of the following information:
a.
The refund anticipation loan fee schedule.
b.
That a refund anticipation loan is a loan and is not the applicant's
actual income tax refund.
c.
That a customer can file an income tax return electronically without
applying for a refund anticipation loan.
d.
The average amount of time, according to the Internal Revenue Service,
within which a customer who does not obtain a refund anticipation loan can
expect to receive a tax refund if a customer's return is filed or mailed as
follows:
1.
Filed electronically and the refund is deposited directly into a
customer's bank account or mailed to the customer.
2.
Mailed to the Internal Revenue Service and the refund is deposited
directly into a customer's bank account or mailed to a customer.
e.
That the Internal Revenue Service does not guarantee that it will pay
the full amount of the anticipated refund and it does not guarantee a specific
date that a refund will be deposited into a customer's bank account or mailed
to a customer.
f.
That the borrower is responsible for the repayment of the refund
anticipation loan and the related fees in the event that the tax refund is not
paid or not paid in full.
g.
The estimated time within which the loan proceeds will be paid to the
borrower if the loan is approved.
h.
The fee that will be charged, if any, if the applicant's loan is not
approved.
(2)
Consummation of the refund anticipation loan transaction, a facilitator
shall provide to the applicant, in either written or electronic form, the
following information:
a.
The estimated total fees for obtaining the refund anticipation loan.
b.
The estimated annual percentage rate for the applicant's refund
anticipation loan, using the guidelines established under the federal Truth In
Lending Act (15 U.S.C. § 1601, et seq.).
c.
The various costs, fees, and finance charges, if applicable, associated
with receiving a tax refund by mail or by direct deposit directly from the
Internal Revenue Service, a refund anticipation loan, a refund anticipation
check, or any other refund settlement options facilitated by the facilitator.
§
2295(A). Prohibited activities.
(a)
Any facilitator who offers to facilitate, or who facilitates, a refund
anticipation loan shall not engage in any of the following activities:
(1)
Requiring a customer to enter into a loan arrangement in order to
complete a tax return.
(2)
Misrepresenting a material fact or condition of a refund anticipation
loan.
(3)
Failing to process the application for a refund anticipation loan
promptly after an applicant applies for the loan.
(4)
Engaging in any transaction, practice, or course of business that
operates a fraud upon any person in connection with a refund anticipation loan.
(b)
When an application involves more than one customer, notification
pursuant to this section need only be given to one customer.
§
2296. Right of rescission.
A borrower who obtains a refund anticipation
loan may rescind the loan, on or before the close of business on the next day
of business, by either returning the original check issued for the loan or
providing the amount of the loan in cash to the lender or the facilitator. The
facilitator may not charge the borrower a fee for rescinding the loan or a
refund anticipation loan fee if the loan is rescinded within this time but may
charge the customer a reasonable fee for establishing and administering a bank
account to electronically receive and distribute the refund. The facilitator must disclose to the borrower
all of the above, in writing - in both English and Spanish – at the time that
the loan is made.
§ 2296(A). Rulemaking; industry review.
(a) The Commissioner may make and enforce such reasonable rules, regulations, directions, orders, decisions, and findings as the execution and enforcement of the provisions of this Act require, and as are not inconsistent therewith. The Commissioner may develop rules to determine if any person or entity seeks to evade the applicability of this Act by any device, subterfuge, or pretense. All rules, regulations, and directions of a general character shall be printed and copies thereof mailed to all facilitators.
(b) After the effective date of this Act, the Commissioner shall, over a 3-year period, conduct a study of the refund anticipation loan industry in Delaware to determine the impact and effectiveness of this Act. The Commissioner shall report its findings to the General Assembly within 3 months of the third anniversary of the effective date of this Act. The study shall determine the effect of this Act on the protection of consumers in this State and on the fair and reasonable regulation of the refund anticipation loan industry. The study shall include, but shall not be limited to, analysis of the ability of the industry to use private reporting tools that:
(1) ensure substantial compliance with this Act, including real time reporting of outstanding refund anticipation loans; and
(2) provide data to the Commissioner in an appropriate form and with appropriate content to allow the Commissioner to adequately monitor the industry.
(c) The report of the Commissioner shall, if necessary, identify and recommend specific amendments to this Act to further protect consumers and to guarantee fair and reasonable regulation of the refund anticipation loan industry.
§ 2297. Enforcement and
remedies.
(a) The remedies
provided in this Act are cumulative and apply to persons or entities subject to
this Act.
(b) The commission
of an act prohibited under §§ 2292(A) or 2295(A) constitutes a material violation of this Act.
(c) If any of the
notice and disclosure provisions described in § 2295(d) are violated by the
lender, then the borrower may rescind the contract without incurring any costs,
fees or charges.
(d) Subject to any
relevant section of Delaware’s Administrative Code or any other relevant law,
the Commissioner may hold hearings, make findings of fact, conclusions of law,
issue cease and desist orders, have the power to issue fines of up to $10,000
per violation, refer the matter to the appropriate law enforcement agency for
prosecution under this Act, and suspend or revoke a license granted under this
Act. All proceedings shall be open to the public.
(e) The Commissioner
may issue a cease and desist order to any facilitator or other person doing
business without the required license, when in the opinion of the Commissioner
the facilitator or other person is violating or is about to violate any
provision of this Act or any rule or requirement imposed in writing by the
Commissioner as a condition of granting any authorization permitted by this
Act. The cease and desist order permitted by this subsection (e) may be issued
prior to a hearing.
(f) The Commissioner
shall serve notice of his or her action, including, but not limited to, a
statement of the reasons for the action, either personally or by certified
mail, return receipt requested. Service by certified mail shall be deemed
completed when the notice is deposited in the U.S. Mail.
(g) Within 10 days
of service of the cease and desist order, the facilitator or other person may
request a hearing in writing. The Commissioner shall schedule a hearing within
30 days after the request for a hearing unless otherwise agreed to by the
parties.
(h) If it is
determined that the Commissioner had the authority to issue the cease and
desist order, the Commissioner may issue such orders as may be reasonably
necessary to correct, eliminate, or remedy the conduct.
(i) The powers
vested in the Commissioner by subsection (e) are additional to any and all
other powers and remedies vested in the Commissioner by law, and nothing in
subsection (e) shall be construed as requiring that the Commissioner employ the
power conferred in this subsection instead of or as a condition precedent to
the exercise of any other power or remedy vested in the Commissioner.
(j) The Commissioner
may, after 10 days notice by registered mail to the facilitator in which the
Commissioner sets forth the contemplated action and the general grounds
therefore, fine the facilitator an amount not exceeding $10,000 per violation,
or revoke or suspend any license issued hereunder if he or she finds that:
(1) the facilitator
has failed to comply with any provision of this Act or any order, decision,
finding, rule, regulation, or direction of the Commissioner lawfully made
pursuant to the authority of this Act; or
(2) any fact or
condition exists which, if it had existed at the time of the original
application for the license, clearly would have warranted that the Commissioner
refuse to issue a license.
(k) The Commissioner
may fine, suspend, or revoke only the particular license with respect to which
grounds for the fine, revocation, or suspension occur or exist, but if the
Commissioner finds that grounds for revocation are of general application to
all offices or to more than one office of the facilitator, the Commissioner may
fine, suspend, or revoke every license to which the grounds apply.
(l) No revocation,
suspension, or surrender of any license shall impair or affect the obligation
of any pre‑existing lawful contract between the facilitator and any
obligor.
(m) The Commissioner
may issue a new license to a facilitator whose license has been revoked when
facts or conditions which clearly would have warranted the Commissioner in
refusing originally to issue the license no longer exist.
(n) In every case in
which a license is suspended or revoked or an application for a license or
renewal of a license is denied, the Commissioner shall serve the facilitator
with notice of his or her action, including a statement of the reasons for his
or her actions, either personally or by certified mail, return receipt
requested. Service by certified mail shall be deemed completed when the notice
is deposited in the U.S. Mail.
(o) An order
assessing a fine, an order revoking or suspending a license, or an order
denying renewal of a license shall take effect upon service of the order unless
the facilitator requests a hearing, in writing, within 10 days after the date
of service. In the event a hearing is requested, the order shall be stayed
until a final administrative order is entered.
(p) If the
facilitator requests a hearing, the Commissioner shall schedule a hearing
within 30 days after the request for a hearing unless otherwise agreed to by
the parties.
(q) The hearing
shall be held at the time and place designated by the Commissioner. The
Commissioner and any administrative law judge designated by the Commissioner
shall have the power to administer oaths and affirmations, subpoena witnesses
and compel their attendance, take evidence, and require the production of
books, papers, correspondence, and other records or information that is
considered relevant or material to the inquiry.
(r) The costs of administrative hearings conducted pursuant
to this Subchapter shall be paid by the facilitator.
(s) The requirements set forth in this section shall be in
addition to any other relevant requirements under any other section of Chapter
22, Title 5. This section shall
control if there is a conflict between this section and any other section of
Chapter 22.
§ 2297(A). Bonding.
(a) A person or
entity engaged in making refund anticipation loans under this Act shall post a
bond to the Commissioner in the amount of $50,000 for each location where loans
will be made, up to a maximum bond amount of $300,000.
(b) A bond posted
under subsection (a) must continue in effect for the period of licensure and
for 3 additional years if the bond is still available. The bond must be
available to pay damages and penalties to a consumer harmed by a violation of
this Act.
(c) From time to
time the Commissioner may require a facilitator to file a bond in an additional
sum if the Commissioner determines it to be necessary. In no case shall the
bond be more than the outstanding liabilities of the facilitator.
(d) The bonding
requirements set forth in this section shall be in addition to any other
relevant requirements under any other section of Chapter 22, Title 5. This section shall control if there is
a conflict between this section and any other section of Chapter 22.
§ 2298. Preemption of administrative rules.
Any administrative rule promulgated prior to the effective
date of this Act by the Commissioner regarding refund anticipation loans is
preempted.
§ 2298(A). Judicial review.
All final administrative decisions of the Commissioner
under this Act are subject to judicial review pursuant to the provisions of the
Delaware Administrative Code or any other relevant law and any rules adopted
pursuant thereto.
§ 2299. Other
enforcement.
(a) Any violation of the provisions of this
Subchapter shall constitute a prohibited practice and shall be subject to any
and all of the enforcement provisions under Chapter 22, Title 5.
(b) Civil
remedies; private cause
of action. A
private cause of action shall be available to any victim of a violation of this
Subchapter. Notwithstanding
any agreement between the lender and the borrower to the contrary, such private
cause of action may be brought in any court of competent jurisdiction in the
State of Delaware only without prior action by the Attorney General as provided
for in this Subchapter. Any borrower prevailing in such action may be awarded
reasonable attorney’s fees.
(c) Administrative
remedies. This Act shall be
enforced by the State Bank Commissioner, who shall promulgate such rules and
regulations as are necessary to implement and administer compliance with the
Act.
§ 2299(A). Reporting of
violations.
The
Commissioner shall report to the Attorney General all material violations of
this Act of which the Commissioner becomes aware.
§
2299(A)(i). Authority of Attorney
General; referral by Commissioner to Attorney General.
(a) If the
Commissioner determines that a person is in violation, or has violated, any
provision of this Subchapter, the Commissioner may refer the information to the
Attorney General and may also request that the Attorney General investigate
such violations. In the case of such referral, the Attorney General is hereby
authorized to seek to enjoin violations of this Subchapter. The court having
jurisdiction may enjoin such violations notwithstanding the existence of an
adequate remedy at law.
(b) Upon such referral of the Commissioner, the
Attorney General may also seek, and the court may order or decree, damages and
such other relief allowed by law, including restitution to the extent available
to a borrower under applicable law. Persons entitled to any relief as
authorized by this section shall be identified by order of the court within 180
days from the date of the order permanently enjoining the unlawful act or
practice.
(c) In any
action brought by the Attorney General by virtue of the authority granted in
this provision, the Attorney General shall be entitled to seek reasonable
attorney's fees and costs.
§ 2299(A)(ii). No waivers.
There shall be no waiver of any provision of this Act.
§ 2299(A)(iii). Superiority of Act.
To
the extent this Act conflicts with any other State financial regulation laws,
this Act is superior and supersedes those laws for the purposes of regulating
refund anticipation loans in the State of Delaware. This Subchapter shall
preempt and be exclusive of all local acts, statutes, ordinances, and
regulations relating to refund anticipation loans.”
“The
provisions of this Act shall be severable, and if any phrase, clause, sentence
or provision is declared to be invalid or is preempted by federal law or
regulation, the validity of the remainder of this Act shall not be affected
thereby.”
SYNOPSIS
This bill creates the Delaware Predatory Refund Anticipation Lending Prevention Act which prohibits unfair lending practices in relation to loans in advance of tax returns, and provides civil and administrative enforcement procedures. This bill would provide needed consumer protections for the Citizens of Delaware, and help to safeguard the economic vitality of our State. |