Legislature(1995 - 1996)

02/21/1996 09:10 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
  SENATE BILL NO. 157                                                          
                                                                               
       An  Act relating  to the regulation  of small  loan and                 
       retail installment transactions.                                        
                                                                               
  Co-chairman Halford directed that  SB 157 be brought  on for                 
  discussion.  SHERMAN  ERNOUF, aide  to Senator Kelly,  again                 
  came before  committee.   He referenced CSSB  157 (L&C)  and                 
  told members  that  work  on the  legislation  was  done  in                 
  conjunction with  the  Alaska  Consumer  Financial  Services                 
  Association.  It attempts to accomplish three goals:                         
                                                                               
       1.   Modernize the Alaska Small Loans Act.  Present law                 
  was       drafted in the late 1950s and is outdated.                         
                                                                               
       2.   Expand  the  availability  of  credit  to   Alaska                 
  consumers.                                                                   
                                                                               
       3.   Allow Alaska lenders to compete with  out-of-state                 
  lenders        who  import  interest-rate   structures  from                 
                 their home states.                                            
                                                                               
  WILLIS   KIRKPATRICK,   Director,   Division   of   Banking,                 
  Securities, and Corporations,  again came before  committee.                 
  He  acknowledged  that  one  of  the problems  the  division                 
  encounters is deterioration or "obsolescence  of some of the                 
  laws that we  administer."  Examiners  have been working  on                 
  areas that should  be modernized.   One is the Alaska  Small                 
  Loan Act.    In the  course  of drafting  improvements,  the                 
  division   was   approached   by   industry  with   proposed                 
  amendments.  An amendment  calling for a single license  for                 
  multiple   offices   would   be  extremely   beneficial   to                 
  administration  of  the  act.    Other minor  changes  would                 
  increase fees to cover increased costs since statehood.                      
                                                                               
                                                                               
  Mr. Kirkpatrick  referenced a particular provision under the                 
  Installment Retail Sales Act  and said that while it  is not                 
  "necessarily promoted"  by the  department, it  also is  not                 
  objected  to.    When  queried   by  Senator  Phillips,  Mr.                 
  Kirkpatrick  advised   that  the  department   endorses  the                 
  proposed  bill.     When  further  queried   concerning  the                 
  Governor's  position,  Mr. Kirkpatrick  said he  had briefed                 
  staff on provisions of the bill but had received no specific                 
  instructions  from  the  Governor's  Office.     He  further                 
  commented on the  breaking down of banking  barriers between                 
  states and the impact of interest-rate provisions on outside                 
  financing.                                                                   
                                                                               
  JOHN HIGGINS, General Manager, Northland Credit Corporation,                 
  (a wholly owned subsidiary of  National Bank of Alaska) came                 
  before committee advising that he would  also be speaking on                 
  behalf  of  the  newly   formed  Alaska  Consumer  Financial                 
  Services  Association.  He  stressed that the  end result of                 
  proposed changes within the bill would:                                      
                                                                               
       1.   Create and retain jobs in Alaska's financial                       
            industry.                                                          
                                                                               
       2.   Provide more financing to rural communities.                       
                                                                               
       3.   Provide  credit  to  a  broader  base  of  Alaskan                 
  consumers who       otherwise might  not have access  to the                 
                      credit they deserve.                                     
                                                                               
  Mr. Higgins next spoke to  the following highlights included                 
  within the bill:                                                             
                                                                               
       1.   Fee enhancements to the state.                                     
       2.   Increased bonding requirements.                                    
       3.   Licensing   enhancements   which   ease  licensing                 
  requirements             for corporations with more than one                 
                           office.                                             
       4.   Bookkeeping changes.                                               
       5.   Inclusion of  joint loan provisions.   Present law                 
  does not            allow  for two  open loans  to the  same                 
                      person or an open loan with a spouse.                    
       6.   Allowance for payments  other than standard 30-day                 
                 payments.  This change will accommodate those                 
                 with seasonal jobs.                                           
       7.   Inclusion of NSF fees within the Alaska Small Loan                 
  Act.                Current statutes do not  so provide, and                 
                      good  payers  end  up   subsidizing  bad                 
                      payers.                                                  
       8.   Inclusion  of  attorneys  fees  for collection  of                 
  loans over               $5,000.00.                                          
       9.   Deregulation of financing in dealerships under the                 
  Alaska              Retail Installment Sales Act  to compete                 
                      with  out-of-state  lenders  that import                 
                      their rate structures to Alaska.                         
                                                                               
                                                                               
  Senator Randy Phillips referenced the  zero fiscal note from                 
  the Dept. of Commerce and Economic Development and asked why                 
  enhanced fees were  not included.  Willis  Kirkpatrick again                 
  came before committee  and said the department  would submit                 
  an updated zero  note explaining the impact  of fee changes.                 
  The   department   does  not   anticipate  "that   much  fee                 
  enhancement."                                                                
                                                                               
  Senator  Rieger   asked  for   an  explanation   of  "add-on                 
  interest."   Mr. Higgins acknowledged  inclusion of clean-up                 
  language  on  "how  interest  should  be earned."    Current                 
  statutes are  unclear.  Some companies earn  under the "rule                 
  of   78ths."     Others   earn   under   "interest  bearing"                 
  arrangements.  Two different forms  are used "under the same                 
  type of paper."  This should be "more homogeneous"--everyone                 
  should be  "doing it  the same  way."   However, the  annual                 
  percentage rate is the same under both methods.  The methods                 
  differ in  how  the  money is  earned  internally.    Add-on                 
  interest refers to "closed-end contracts."  The current rate                 
  is "ten percent, eight percent add-on."  That equates to ten                 
  percent  up to  $1,000 and eight  percent thereafter,  in an                 
  add-on fashion.                                                              
                                                                               
  Lengthy  discussion  of  different  methods  of  calculating                 
  interest followed.  Mr. Higgins advised that "rule of 78ths"                 
  financing has an  inherent prepayment penalty.   However, it                 
  is the best type of loan to  have if the payer is delinquent                 
  because  the  interest never  changes  even if  payments are                 
  late.  An interest-bearing loan is the worst to have, if you                 
  are late, because interest is  calculated on the outstanding                 
  balance.   Further  comments  followed  regarding  differing                 
  legal interpretations of the "rule of 78ths."                                
                                                                               
  The  proposed bill allows interest earning  by either of the                 
  above-mentioned methods, but the method must be disclosed to                 
  the consumer.    Discussion of  disclosure requirements  and                 
  understanding of disclosure by  the general public followed.                 
  Senator Frank stressed need to clarify existing law to track                 
  with requirements  for disclosure  of the  annual percentage                 
  rate so that consumers know what rate they are paying.                       
                                                                               
  In response to a question from  Co-chairman Frank asking why                 
  calculation of interest is not restricted to a single method                 
  such as simple  interest, Mr.  Higgins explained that  under                 
  the  Truth  in  Lending Act  the  "rule  of  78ths" was  the                 
  preferred method of  computing interest.  Those  involved in                 
  drafting  the proposed bill  did not  want to  preclude that                 
  methodology since it is part of  federal law.  For high-risk                 
  consumer loan  portfolios where payments tend to be late and                 
  delinquency  and charge-offs are  higher, interest  on "rule                 
  78ths" loans cannot increase.   Principal is paid  down more                 
  quickly  since  the  interest  does  not  change.     It  is                 
  precomputed each month  because it  is set at  the time  the                 
                                                                               
                                                                               
  loan is written.   A  borrower who  is late  on an  interest                 
  bearing contract "could pay on it forever because . . . your                 
  payments just go to interest" and do not cover the principal                 
  balance.                                                                     
                                                                               
  Further   discussion   followed  regarding   computation  of                 
  interest  under   the  "rule   of  78ths."     Mr.   Higgins                 
  acknowledged that it computes to 15% interest for  the first                 
  month.                                                                       
                                                                               
  Co-chairman Halford asked if the  proposed bill provides for                 
  an  increase  in  the  amount  of  information  provided  to                 
  consumers.  He voiced support for deregulation but suggested                 
  that  greater  public awareness  is an  appropriate balance.                 
  Mr.  Higgins advised  that contracts  indicate  how interest                 
  will  be  calculated.   Requirements  for disclosure  to the                 
  consumer are incorporated within regulation "Z" and truth in                 
  lending statutes.                                                            
                                                                               
  Senator  Rieger  directed  attention  to  page 5,  lines  20                 
  through  26, and asked  if new  language deletes  ability to                 
  charge  for  a  credit  report  on   a  loan  of  less  than                 
  $10,000.00.  Mr. Higgins concurred.                                          
                                                                               
  END:      SFC-96, #28, Side 1                                                
  BEGIN:    SFC-96, #28, Side 2                                                
                                                                               
  Discussion  of  title insurance  requirements followed.   In                 
  response to  questions from members, Willis Kirkpatrick came                 
  back before committee.  He advised that if collateral is not                 
  perfected,  the   classification  of   the  loan   might  be                 
  jeopardized.                                                                 
                                                                               
  In response  to a  question from  Senator Zharoff  regarding                 
  Sec.  13  provisions  for  late-payment  fees,  Mr.  Higgins                 
  explained that language relates  to retail revolving  credit                 
  rather than  the consumer small loan act.  The law is silent                 
  on  these charges.  The proposed bill  does not list fees or                 
  charges  by dollar amounts  because they vary  from state to                 
  state.  Sec. 13  provides for information on these  costs to                 
  be contained in the contract, or agreement, and concurred in                 
  by the  parties so that  everyone understands what  the late                 
  charges will be.   Mr. Higgins advised that  his corporation                 
  would use "what's already out there as law."  That means ten                 
  percent up to $15.00.   He then referenced language  at page                 
  5, subsection  (6) which  seeks to  increase the limit  from                 
  $15.00 to $25.00.                                                            
                                                                               
  Co-chairman Frank asked if small loan institutions in Alaska                 
  would  be   disadvantaged  if  limited  to  simple  interest                 
  calculations only,  since  they would  be competing  against                 
  institutions able to use either simple  interest or "rule of                 
  78ths"  financing.   Mr.  Higgins agreed  that  disadvantage                 
  could  occur  if  outside   institutions  import  their  own                 
                                                                               
                                                                               
  individual method  of calculating  interest to  Alaska.   He                 
  stressed that the goal  is not to require that  the industry                 
  use only one methodology  but to clarify that more  than one                 
  method may be  used and that  disclosure to the consumer  is                 
  proper.                                                                      
                                                                               
  In response to  questions from  members, Willis  Kirkpatrick                 
  again came before committee.   He acknowledged confusion and                 
  complaints  from those who pay off "rule of 78ths" contracts                 
  early.  At the time a loan is made, the borrow usually has a                 
  specific goal  in mind.   The  particulars of  the financing                 
  arrangement are  often not  paramount.   Co-chairman Halford                 
  asked if something could be added to notice requirements  to                 
  better inform consumers.  Mr.  Kirkpatrick voiced his belief                 
  that present disclosure forms  are adequate in  presentation                 
  of the true rate.                                                            
                                                                               
  Senator  Rieger advised  of  his understanding  that  unless                 
  there  is  a specific  waiver,  a consumer  credit  loan has                 
  reasonably equal payment for the life of the loan.  "Rule of                 
  78ths" and "simple interest" are  merely different schedules                 
  for computing how much of each monthly payment is applied to                 
  interest and principal.  Mr. Kirkpatrick concurred.                          
                                                                               
  In the course  of further  discussion, Mr. Higgins  stressed                 
  that application of  "rule of 78ths" financing  relates only                 
  to retail contracts.   It does not apply  to the small  loan                 
  act.  He then recited a listing of institutions and the type                 
  of schedules they use.                                                       
                                                                               
  JOHN  SHIPE,  Executive  Vice President,  National  Bank  of                 
  Alaska,  next   came  before  committee.     As   background                 
  information,  he  explained  that the  "rule  of  78ths" was                 
  developed  prior  to "the  days  of sophisticated  computing                 
  systems."  It assumes fixed payments  on a fixed bases (such                 
  as every thirty days).  "Simple interest" financing computes                 
  interest based on the principal and the number of days since                 
  the last payment.    If two hypothetical loans were made for                 
  the same amount and at the same interest rate but calculated                 
  under "simple interest" and the "rule of 78ths" with  timely                 
  payments on the due dates carried to maturity, the amount of                 
  interest paid on both loans would  be identical.  The manner                 
  in  which  the interest  is  recognized internally  would be                 
  different.  Both  methods are well established  and utilized                 
  and fall within regulation "Z" disclosure requirements.                      
                                                                               
  Discussion  involving examples  of  both  types of  interest                 
  calculations followed.  Mr. Shipe advised that  the "rule of                 
  78ths"  is  the predominant  structure used  by corporations                 
  that import financing to Alaska.                                             
                                                                               
  Co-chairman Halford inquired concerning  the types of retail                 
  agreements used by chain stores in Alaska.   JERRY REINWAND,                 
  representing J. C.  Penney; Sears; Safeway; and  Fred Meyer,                 
                                                                               
                                                                               
  came  before  committee.     He  explained  that   the  bill                 
  represents an  attempt to  keep retail  business in  Alaska.                 
  Co-chairman  Halford voiced  his understanding  that a  sale                 
  through a chain store in Alaska is not necessarily  governed                 
  by  Alaska  law.   There  is  nothing  to  prevent a  retail                 
  business from making  arrangements with an outside  bank and                 
  consequently complying with  the laws  of that  state.   Mr.                 
  Kirkpatrick  again came  before  committee  and  advised  of                 
  existing provisions  that  allow transport  of credit  rates                 
  across state lines.  The first provides that the focal point                 
  (center  of  gravity) of  the  transaction  is where  it  is                 
  approved and disbursed.  More recent  case law speaks to the                 
  constitutional   question   that   prohibits   states   from                 
  interfering with interstate  commerce that allows funds  and                 
  the cost of funds to flow across state lines.                                
                                                                               
  Co-chairman Halford queried members regarding disposition of                 
  the bill.   Senator Zharoff  referenced enhanced ability  of                 
  Alaskan businesses to  compete under  the proposed bill  and                 
  asked why it  did not  have an effective date.  Mr.  Higgins                 
  acknowledged  that  the issue  was  not considered  when the                 
  legislation was developed.   He concurred that  an immediate                 
  effective   date  should  be   included.    Mr.  Kirkpatrick                 
  commented that the crisis created by immediate effectiveness                 
  would be manageable.                                                         
                                                                               
  Senator Zharoff MOVED to amend CSSB  157 (L&C) to include an                 
  immediate effective date.  No  objection having been raised,                 
  the amendment was ADOPTED for  incorporation within a Senate                 
  Finance Committee Substitute for the bill.   Senator Zharoff                 
  then MOVED for passage of the bill.                                          
                                                                               
  Co-chairman Halford questioned the zero fiscal note in light                 
  of bill provisions (Secs. 1 and 2) which increase fees.  Mr.                 
  Kirkpatrick said  there would  be a  slight positive  fiscal                 
  impact if there  was a lot of activity  because of the bill.                 
  However, the  division  does not  anticipate much  activity.                 
  Further, the division  will be doing multiple  licensing for                 
  some entities.  That is likely  to reduce revenues.  The end                 
  result  is  a  balance between  increased  fees  and revenue                 
  reductions.  He said he would provide a new zero fiscal note                 
  with an appropriate explanation.                                             
                                                                               
  No objection  to  passage  of  CSSB 157  (Fin)  having  been                 
  raised, CSSB 157 (Fin) was REPORTED  OUT of committee with a                 
  zero fiscal  note from  the Dept.  of Commerce and  Economic                 
  Development.    Senators  Rieger   and  Zharoff  signed  the                 
  committee  report  with  a "do  pass"  recommendation.   Co-                 
  chairmen Halford and Frank and  Senators Donley and Phillips                 
  signed "no recommendation."                                                  
                                                                               
  ADJOURNMENT                                                                  
                                                                               
  The meeting was adjourned at approximately 10:30 a.m.                        
                                                                               
                                                                               

Document Name Date/Time Subjects