Payday loan policy and the art of legislative compromise

DENVER — De Jimenez is a single mother of three. She works in medical records and one of her children is in college. She recently took out a payday loan and she’s kicking herself, knowing she has paid about $70 to borrow $100.

“For rent,” she says of her last loan. “I get them to cover basic needs, really basic needs — food, water, shelter. They’re not for a car payment or anything like that, just to make ends meet because sometimes kids get sick. It goes back to not having paid sick days. I guess it’s a glass half full situation: If they weren’t there, I don’t know where I’d get the extra income, but at the same time, the interest rate is just so high.”

In 2010 the Colorado legislature passed payday loan consumer protections that lengthen the term of a payday loan to six months minimum from the typical two weeks — at which point a borrower has to pay that roughly $70 start-up fee to “roll over” the loan for two more weeks. The average borrower repeated that process for three to six months.

Jimenez feels more could still be done to lower the cost of payday loans, which are still about five times more expensive than credit card debt. Even so, she says the reforms made a crucial difference between just being able to manage the loans and getting caught by them.

“Before, it was like you could see a light at the end of the tunnel but it was so small it looked like a pinhole. Then you were taking out another payday loan just to pay off the first one. It was a vicious, vicious cycle,” she remembers. “At least now the light is a little brighter and the goal a little more easily attainable.”

In addition to setting minimum six-month terms for the loans, the laws also required borrowers be able to pay down the debt in installments, instead of one lump sum, and that they have the option to pay off the loan early in full without paying any fines. Since enacted, borrowers have been saving an estimated $40 million a year on what are still the most expensive loans available on the market.

Now Colorado’s law, considered a compromise between industry interests and consumer protections, may serve as a national model as the Consumer Financial Protection Bureau weighs regulations on payday loans coast to coast.

“The key lesson from Colorado is that successful reform requires tackling the fundamental unaffordability of payday loans,” said Nick Bourke, who has researched the topic for PEW Charitable Trust. “Federal regulations should require a strong ability-to-repay standard and require lenders to make loans repayable over a period of time.”

PEW’s research shows that, of the 12 million Americans who take payday loans each year, most borrowers are asking for about $375 to cover routine expenses. The loans typically are made for a period of two weeks, at which point the lump sum is due or borrowers can re-up the loan by paying the initial fee again, usually in the region of $75. But, PEW found, borrowers can rarely afford to repay the loans after two weeks, since the loan amounts typically account for a third of their take-home pay. As a result, folks end up rolling over their loans for an average of half a year, ultimately racking up “interest” rates that exceed 300 percent. The interest on credit card debt, largely considered expensive, is more like 24 percent.

Most states’ payday loan consumer protections, if they have them, focus on capping that interest rate. This approach has received some push back, with opponents saying it effectively drives payday lenders out of the regulated state. In Oregon, for example, a 2007 law capping interest at 36 percent reduced the number of payday lenders from 346 to 82 in its first year on the books.

“The question is, are those people better off without credit? Current economics hasn’t answered that question yet. Some studies say people do better, that they go to friends and family or just scrape by, others say they do worse, that they get kicked out their apartment, etcetera,” said Jim Hawkins, a law professor at the University of Houston who focuses on banking.

That concern thwarted years of attempts to pass a rate cap in Colorado and ultimately motivated the compromise bill that has garnered so much national attention, according to the measure’s sponsor, House Speaker Mark Ferrandino (D-Denver).

“We were definitely going down,” remembered Ferrandino. “We’d tried for years to get a bill passed. It failed two years in a row and was on the cusp of failing again. So we sat down with key votes in Senate and said: ‘Our goal is to end the cycle of debt. We have no problem with payday loans continuing or with people having access to capital, but let’s not let folks get caught in this cycle. If that’s our shared goal, what are policies we can do to get that done?’”

Legislators focused on affordability, extending the terms of the loans and making them payable in installments. The law acknowledged the 45 percent interest cap the state placed on all loans but is also give payday lenders ways to charge more fees so that the de facto interest rates for payday loans in Colorado now hover around 129 percent.

“Borrowers have been pretty happy with the changes to the loans. They reported that they were more manageable, that they could actually be paid off and were ultimately much cheaper,” said Rich Jones at the Bell Policy Center, who helped draft the bill.

PEW’s national research indicates that 90 percent of borrowers want more time to repay their loans and 80 percent say regulation should require those payments to be affordable — more like 5 percent of a borrower’s monthly income than 33 percent.

Colorado’s bill did end up taking a big bite out of the payday loan industry in the state, halving the number of stores and reducing the total number of loans from 1.57 million a year before the law to 444,000 per year. Even so, supporters of the bill note that the industry fared better in Colorado than it did in other regulated states and that borrowers’ overall access to lenders went largely unchanged.

“It was not uncommon to go to parts of Denver and see a payday lending store on all four corners of a busy intersection,” said Jones. “Now maybe there’s just one or two stores in a block instead of four or five.”

“The fact that we had more payday loan stores than Starbucks didn’t make sense,” quipped Ferrandino.

“Seventy percent of the population still lives within 10 miles of a payday loan store and that figure is roughly the same as under the old law,” said Jones.

Under Dodd-Frank federal law, the CFPB does not have the authority to set the interest rate caps other states have used to regulate payday loans. They can, however, take a leaf out of Colorado statute and require that lenders give borrowers the option to pay down the loans over an extended period of time. In fact, the CFPB could go even further and require that those payments meet an affordability standard based on the borrower’s income.

Bourke says PEW wants to see the CFPB make these kinds of changes in their next round of rulemaking and notes that the agency’s own studies indicate they’re moving that direction.

“They see there’s tremendous evidence of the problems and potential harm in this market and they intend to do something about it,” said Bourke. “I think there’s a good chance they’ll put in the repayment standard.”

Bourke isn’t the only one with his eye on the CFPB. Folks in the academy are also closely watching the issue.

Hawkins noted that while Texas has very minimal regulations on how much lenders are allowed to charge for payday loans, they’ve tried alternative routes to protecting consumers based on behavioral economics. In Texas, lenders are required to tell borrowers how long it usually takes for people to repay the loans and to provide direct cost comparisons to the same loan taken on a credit card.

“To me that’s an exciting innovation that doesn’t hamper the industry, but still ensures that folks are educated,” said Hawkins, adding that initial research indicates the information does impact borrowers’ decisions.

Hawkins also noted that Colorado’s law hit the industry in fairly specific ways — namely, it vastly reduced the number of small, local lenders. PEW research backs this up. Before the law was passed, large lenders owned just over half the stores in Colorado. Today they own closer to 75 percent.

“It’s just another policy choice. Do you want to only have big companies?” asked Hawkins, noting that the CFPB has made a point of focusing on small businesses.

In all likelihood, the CFPB will be working on this issue for much of the next year, which means they’ll be making these rules while Republicans, who will take control of the Senate next session, continue to chip away at the agency’s authority.

To that end, there might be more to learn from Colorado than policy alone.

“There’s this attitude in Colorado when it comes to policy issues that you don’t have to go all the way or have nothing at all, that you can come up with meaningful compromise,” said Ferrandino. “I think what we were able to do here proves that what the CFPB is looking at is reasonable.”

[Photo by Tom Magliery]