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Pay Day Lending: Here Come the Banks!

By James M. Kane, Daniel C. McKay, II, James W. Morrissey, Jennifer Durham King, Juan M. Arciniegas, Lisa M. Simonetti & Mark C. Svalina on March 30, 2018
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In a recent interview, Comptroller of the Currency Joseph Otting, announced the OCC’s plan to “clarify” its support of bank-offered deposit advance products. “Deposit advance products” are typically defined as small-dollar, short-term loans or lines of credit that are to be repaid from the proceeds of the consumer’s next direct deposit.  The WSJ reports that the OCC’s planned announcement will focus on 45-to-90 day loans.

In 2013, the OCC issued its Guidance on Supervisory Concerns and Expectations Regarding Deposit Advance Products, OCC Bulletin 2013-40 (the “DAP Guidance”).  The DAP Guidance had the impact of effectively prohibiting national banks from offering such products and driving consumers seeking emergency loans and access to short-term credit to pay day lenders, credit card companies and newly established FinTech companies.  However, in October 2017, Keith A. Noreika, then Acting Comptroller of the OCC, approved the rescission of the Obama-era DAP Guidance citing the Consumer Financial Protection Bureau’s proposed Pay Day Lending rule.  Many in the industry believe the OCC recession of the DAP Guidance was simply the first step in allowing national banks to actively participate in the offering of deposit advance products.  It appears that the banking industry will have a definitive answer as to whether it may offer these products within the next few months.

In a market where high rates and certain practices are often criticized as being wholly unfair, predatory and lacking adequate regulatory oversight, the banking industry, as one of the most highly regulated industries in the U.S., may serve as the most efficient platform by which regulators can control abusive practices.

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Photo of James M. Kane James M. Kane
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Photo of Daniel C. McKay, II Daniel C. McKay, II
Read more about Daniel C. McKay, IIEmail
Photo of James W. Morrissey James W. Morrissey
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Photo of Jennifer Durham King Jennifer Durham King
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Photo of Juan M. Arciniegas Juan M. Arciniegas

Mr. Arciniegas works primarily as a derivatives lawyer and covers markets for over-the-counter (OTC) derivatives, structured finance products and listed futures. He advises on every stage throughout the life cycle of a derivatives transaction, providing assistance to a wide range of market participants…

Mr. Arciniegas works primarily as a derivatives lawyer and covers markets for over-the-counter (OTC) derivatives, structured finance products and listed futures. He advises on every stage throughout the life cycle of a derivatives transaction, providing assistance to a wide range of market participants engaged in the markets in various capacities. Regulatory matters range from assisting clients on financial reform legislation, registration and membership with the CFTC, NFA, and other financial market utilities, to providing guidance to commercial end-users and sell-side participants on exemptions, cross-border access issues, and matters involving the overlapping jurisdiction of securities and commodities regulation. Transactional matters include the negotiation and implementation of comprehensive documentation for agency-MBS, cleared and OTC derivatives, FX, futures, loan-level hedging arrangements, prime brokerage, repurchase transactions, securities lending, structured finance transactions, and related industry protocols implementing changes in those markets. Mr. Arciniegas has appeared before the CFTC, the Federal Reserve, the SEC, and is a frequent speaker and published author on futures and derivatives topics.

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Photo of Lisa M. Simonetti Lisa M. Simonetti

Lisa M. Simonetti is a Shareholder at Vedder Price and a member of the Litigation group. Ms. Simonetti focuses on the defense of complex litigation, including class actions, mass actions and regulatory investigations and enforcement actions. Ms. Simonetti represents a wide array of…

Lisa M. Simonetti is a Shareholder at Vedder Price and a member of the Litigation group. Ms. Simonetti focuses on the defense of complex litigation, including class actions, mass actions and regulatory investigations and enforcement actions. Ms. Simonetti represents a wide array of financial services companies, including credit card issuers, mortgage lenders, e-commerce companies, automotive finance companies, national banks, student lenders and savings and loan associations.

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Photo of Mark C. Svalina Mark C. Svalina
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  • Posted in:
    Banking, Finance and Securities
  • Blog:
    The 21st Century Banker
  • Organization:
    Vedder Price PC
  • Article: View Original Source

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