Scholar argues that fintech firms engage in predatory lending.
But is fintech lending predatory?
Christopher Odinet, law professor at the University of Iowa, argues that it is. In a recent article, he claims that fintech firms exploit partnerships with banks to engage in predatory lending. He asserts that banking regulators have even prevented state consumer watchdogs from acting against fintech firms because proponents have championed fintech as a financial access solution.
Odinet argues that financial regulators must update the banking regulatory landscape to protect consumers, especially as fintech lending to economically vulnerable households skyrockets during the coronavirus pandemic.
Household debt has reached an all-time high during the pandemic, in part due to a rise in online fintech borrowing. Over half of Americans lack the savings to cover their expenses, and these hand-to-mouth households have been devastated as the unemployment rate reached an unprecedented high. The relief funds Congress provided in March sustained one-third of households for only less than a month. Black and Hispanic households—already affected by disproportionately high poverty rates—experienced rising food insecurity.
Predatory fintech firms “take advantage of the special legal treatment given to banks” through fintech-bank partnerships. In these partnerships, fintech firms—which do not have licenses to lend—enter agreements with chartered banks. Customers apply for loans with fintech firms, which manage “the marketing, credit scoring, and underwriting” processes related to the loan. The partner bank, however, originates the loan. This arrangement enables fintech firms to lend without a license—and avoid the consumer protection requirements placed on banks.
Although fintech–bank partnerships operate under some regulations, these are not enough to prevent predatory fintech lending, Odinet argues. He describes two ways that fintech firms abuse gaps in the regulatory framework.
First, “avoiding usury laws is at the heart” of fintech–bank partnerships, Odinet claims. Usury laws regulate the interest rates lenders can charge on loans, and the laws can vary widely by state. Colorado, for example, allows interest rates up to 45 percent, while Virginia caps them at 6 percent.
Usury laws apply to fintech lenders, but banks have largely avoided the effects of usury laws. The National Bank Act allows nationally chartered banks to charge the highest interest rate allowed in any state in which the bank has a branch. If a nationally chartered bank operates in Colorado and Virginia, for example, the bank could charge 45 percent interest rates in Virginia even though Virginia usury laws cap interest rates at 6 percent.
Many states have enacted “parity laws” that allow state chartered banks to charge the highest interest rate that is charged by any national bank with a branch in the state. In the previous example, a state chartered bank in Virginia could also charge 45 percent interest on their loans after a national bank in the state charges that interest rate despite Virginia usury laws capping rates at 6 percent.
As a result, fintech firms that partner with banks benefit from their partner bank’s ability to avoid state usury laws.
Second, Odinet argues that fintech firms avoid multi-state licensing by partnering with banks. States require lenders to get a license before they can make loans. Without a license, the lender’s loans would normally be invalidated. When fintech firms partner with banks, the fintech firm is not required to obtain a license in each state in which it operates because the licensed partner bank originates the loan.
First, he says that the FDIC should require a bank that partners with fintech firms to offer “the credit product on its own website and through its other marketing channels.” This disclosure requirement would increase transparency.
Second, the FDIC should proclaim that “high-cost lending is abusive” and describe the reasons why fintech lending is deceptive.
Finally, Odinet argues that the FDIC should issue cease and desist orders to banks with partners that engage in unsafe or unsound practices.
Since the FDIC currently regulates all banks that partner with fintech firms, these three changes could reduce predatory fintech lending.
Odinet sees these actions, however, as temporary solutions. For the long term, he favors larger changes to the banking regulatory framework. Congress should convene “a bipartisan national commission on consumer finance,” Odinet states. The commission would make “a concerted effort to address the changing and increasingly digital landscape of consumer finance” that includes banks working with fintech firms.