2010 California Code
Financial Code
Chapter 2. Deferred Deposit Transactions

23035.  (a) A licensee may defer the deposit of a customer's
personal check for up to 31 days, pursuant to the provisions of this
section. The face amount of the check shall not exceed three hundred
dollars ($300). Each deferred deposit transaction shall be made
pursuant to a written agreement as described in subdivision (e) that
has been signed by the customer and by the licensee or an authorized
representative of the licensee.
   (b) A customer who enters into a deferred deposit transaction and
offers a personal check to a licensee pursuant to an agreement shall
not be subject to any criminal penalty for the failure to comply with
the terms of that agreement.
   (c) Before entering into a deferred deposit transaction, licensees
shall distribute to customers a notice that shall include, but not
be limited to, the following:
   (1) Information about charges for deferred deposit transactions.
   (2) That if the customer's check is returned unpaid, the customer
may be charged an additional fee of up to fifteen dollars ($15).
   (3) That the customer cannot be prosecuted in a criminal action in
conjunction with a deferred deposit transaction for a returned check
or be threatened with prosecution.
   (4) The department's toll-free telephone number for receiving
calls regarding customer complaints and concerns.
   (5) That the licensee may not accept any collateral in conjunction
with a deferred deposit transaction.
   (6) That the check is being negotiated as part of a deferred
deposit transaction made pursuant to Section 23035 of the Financial
Code and is not subject to the provisions of Section 1719 of the
Civil Code. No customer may be required to pay treble damages if this
check does not clear.
   (d) The following notices shall be clearly and conspicuously
posted in the unobstructed view of the public by all licensees in
each location of a business providing deferred deposit transactions
in letters not less than one-half inch in height:
   (1) The licensee cannot use the criminal process against a
consumer to collect any deferred deposit transaction.
   (2) The schedule of all charges and fees to be charged on those
deferred deposit transactions with an example of all charges and fees
that would be charged on at least a one-hundred-dollar ($100) and a
two-hundred-dollar ($200) deferred deposit transaction, payable in 14
days and 30 days, respectively, giving the corresponding annual
percentage rate. The information may be provided in a chart as
follows:

+-------------+------+-------------+---------+---------+
|Amount               Amount of     14-day    30-day   |
|Provided      Fee    Check         APR       APR      |
+-------------+------+-------------+---------+---------+
|$100          XX     XXX           XXX       XXX      |
+-------------+------+-------------+---------+---------+
|$200          XX     XXX           XXX       XXX      |
+-------------+------+-------------+---------+---------+

   (e) An agreement to enter into a deferred deposit transaction
shall be in writing and shall be provided by the licensee to the
customer. The written agreement shall authorize the licensee to defer
deposit of the personal check, shall be signed by the customer, and
shall include all of the following:
   (1) A full disclosure of the total amount of any fees charged for
the deferred deposit transaction, expressed both in United States
currency and as an APR as required under the Federal Truth In Lending
Act and its regulations.
   (2) A clear description of the customer's payment obligations as
required under the Federal Truth In Lending Act and its regulations.
   (3) The name, address, and telephone number of the licensee.
   (4) The customer's name and address.
   (5) The date to which deposit of check has been deferred (due
date).
   (6) The payment plan, or extension, if applicable as allowed under
subdivision (c) of Section 23036.
   (7) An itemization of the amount financed as required under the
Federal Truth In Lending Act and its regulations.
   (8) Disclosure of any returned check charges.
   (9) That the customer cannot be prosecuted or threatened with
prosecution to collect.
   (10) That the licensee cannot accept collateral in connection with
the transaction.
   (11) That the licensee cannot make a deferred deposit transaction
contingent on the purchase of another product or service.
   (12) Signature space for the customer and signature of the
licensee or authorized representative of the licensee and date of the
transaction.
   (13) Any other information that the commissioner shall deem
necessary by regulation.
   (f) The notice required by subdivision (c) shall be written and
available in the same language principally used in any oral
discussions or negotiations leading to execution of the deferred
deposit agreement and shall be in at least 10-point type.
   (g) The written agreement required by subdivision (e) shall be
written in the same language principally used in any oral discussions
or negotiations leading to execution of the deferred deposit
agreement; shall not be vague, unclear, or misleading and shall be in
at least 10-point type.
   (h) Under no circumstances shall a deferred deposit transaction
agreement include any of the following:
   (1) A hold harmless clause.
   (2) A confession of judgment clause or power of attorney.
   (3) Any assignment of or order for payment of wages or other
compensation for services.
   (4) Any acceleration provision.
   (5) Any unconscionable provision.
   (i) If the licensee sells or otherwise transfers the debt at a
later date, the licensee shall clearly disclose in a written
agreement that any debt or checks held or transferred pursuant to a
deferred deposit transaction made pursuant to Section 23035 are not
subject to the provisions of Section 1719 of the Civil Code and that
no customer may be required to pay treble damages if the check or
checks are dishonored.



23036.  (a) A fee for a deferred deposit transaction shall not
exceed 15 percent of the face amount of the check.
   (b) A licensee may allow an extension of time, or a payment plan,
for repayment of an existing deferred deposit transaction but may not
charge any additional fee or charge of any kind in conjunction with
the extension or payment plan. A licensee that complies with the
provisions of this subdivision shall not be deemed to be in violation
of subdivision (g) of Section 23037.
   (c) A licensee shall not enter into an agreement for a deferred
deposit transaction with a customer during the period of time that an
earlier written agreement for a deferred deposit transaction for the
same customer is in effect.
   (d) A licensee who enters into a deferred deposit transaction
agreement, or any assignee of that licensee, shall not be entitled to
recover damages for that transaction in any action brought pursuant
to, or governed by, Section 1719 of the Civil Code.
   (e) A fee not to exceed fifteen dollars ($15) may be charged for
the return of a dishonored check by a depositary institution in a
deferred deposit transaction. A single fee charged pursuant to this
subdivision is the exclusive charge for a dishonored check. No fee
may be added for late payment.
   (f) No amount in excess of the amounts authorized by this section
shall be directly or indirectly charged by a licensee pursuant to a
deferred deposit transaction.
   (g) A licensee shall be subject to the provisions of Title 1.6C
(commencing with Section 1788) of Part 4 of Division 3 of the Civil
Code.


23037.  In no case shall a licensee do any of the following:
   (a) Accept or use the same check for a subsequent transaction, or
permit a customer to pay off all or a portion of one deferred deposit
transaction with the proceeds of another.
   (b) Accept any collateral for a deferred deposit transaction.
   (c) Make any deferred deposit transaction contingent on the
purchase of insurance or any other goods or services.
   (d) Enter into a deferred deposit transaction with a person
lacking the capacity to contract.
   (e) Alter the date or any other information on a check.
   (f) Engage in any unfair, unlawful, or deceptive conduct, or make
any statement that is likely to mislead in connection with the
business of deferred deposit transactions.
   (g) Accept more than one check for a single deferred deposit
transaction.
   (h) Take any check, instrument, or form in which blanks are left
to be filled in after execution.
   (i) Offer, arrange, act as an agent for, or assist a deferred
deposit originator in any way in the making of a deferred deposit
transaction unless the deferred deposit originator complies with all
applicable federal and state laws and regulations, including the
provisions of this division.
   (1) The prohibition specified in this subdivision does not apply
to the arranger, agent, or assistant to a state or federally
chartered bank, thrift, savings association, or industrial loan
company where the state or federally chartered bank, thrift, savings
association, or industrial loan company satisfies all of the
following:
   (A)  It initially advances the loan proceeds to the customer.
   (B) It does not sell, assign, or transfer a preponderant economic
interest in the deferred deposit transaction to the arranger, agent,
or assistant, or an affiliate or subsidiary of the state or federally
chartered bank, thrift, savings association, or industrial loan
company, unless selling, assigning, or transferring a preponderant
economic interest is expressly permitted by the primary regulator of
the state or federally chartered bank, thrift, savings association,
or industrial loan company.
   (C) It develops the deferred deposit transaction product or
products on its own.
   (2) If a licensee offers, arranges, acts as an agent for, or
assists a state or federally chartered bank, thrift, savings
association, or industrial loan company in any way in the making of a
deferred deposit transaction and the state or federally chartered
bank, thrift, savings association, or industrial loan company meets
the standards set forth in paragraph (1), the licensee shall comply
with all other provisions in this division to the extent they are not
preempted by other state and federal laws.




23038.  (a) Any person who violates any provision of Section 670 of
the John Warner National Defense Authorization Act for Fiscal Year
2007 (Public Law 109-364) or any provision of Section 232 of Title 32
of the Code of Federal Regulations, as published on August 31, 2007,
in Volume 72 of the Federal Register, violates this division.
   (b) With respect to any deferred deposit transactions covered by
Section 670 of the John Warner National Defense Authorization Act for
Fiscal Year 2007 (Public Law 109-364) or by Section 232 of Title 32
of the Code of Federal Regulations, as published on August 31, 2007,
in Volume 72 of the Federal Register, a person that does not market
deferred deposit transactions to, or does not enter into those
transactions with, covered borrowers, as that term is defined under
Section 232 of Title 32 of the Code of Federal Regulations, as
published on August 31, 2007, in Volume 72 of the Federal Register,
shall not be in violation of Section 394 of the Military and Veterans
Code.
   (c) This section shall become operative on October 1, 2007.