STATE OF NEW YORK
        ________________________________________________________________________

                                         916--B

                               2023-2024 Regular Sessions

                    IN SENATE

                                     January 9, 2023
                                       ___________

        Introduced  by  Sen.  COONEY -- read twice and ordered printed, and when
          printed to be  committed  to  the  Committee  on  Banks  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to  said  committee  --  committee  discharged,  bill amended, ordered
          reprinted as amended and recommitted to said committee

        AN ACT to amend the banking law, in relation  to  providing  for  income
          access services in the state

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. The banking law is amended by adding a new article  9-B  to
     2  read as follows:
     3                                    IX-B
     4                           INCOME ACCESS SERVICES
     5  Section 374-aa. Definitions.
     6          374-bb. License.
     7          374-cc. Action by superintendent on application.
     8          374-dd. License provisions and posting.
     9          374-ee. Grounds  for suspension or revocation of license; proce-
    10                    dure.
    11          374-ff. Investigations and examinations.
    12          374-gg. Compliance.
    13          374-hh. Advertising.
    14          374-ii. Regulations and rulings.
    15          374-jj. Changes in control.
    16          374-kk. Violation and penalties.
    17          374-ll. Books and records; reports.
    18          374-mm. Annual report.
    19          374-nn. Severability.
    20    § 374-aa. Definitions. As used in this article,  the  following  terms
    21  shall have the following meanings:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02550-04-3

        S. 916--B                           2

     1    1.  "Consumer"  means  an individual who is a resident of the state of
     2  New York.
     3    2.  "Debt collection activity" means the business of collection of any
     4  debts, directly or indirectly, owed or due or asserted to be owed or due
     5  another and the business of a buyer of debts who seeks to  collect  such
     6  debts  either  directly  or  indirectly,  as well as the business of any
     7  creditor collecting its own debts if such creditor uses any  name  other
     8  than its own that would suggest or indicate that someone other than such
     9  creditor is collecting or attempting to collect such debts.
    10    3.  "Earned  but  unpaid income" means wages or compensation that have
    11  been earned or have accrued to the benefit of a consumer  but  have  not
    12  been paid by an obligor to that consumer for labor or services performed
    13  for or on behalf of an obligor.
    14    4.  "Earned income access rate cap" means the limit on the amount that
    15  may be charged for an earned income access transaction  that  is  estab-
    16  lished by the superintendent by regulation.
    17    5.  "Earned income access transaction" means the payment of earned but
    18  unpaid income to a consumer at a time other than the consumer's  regular
    19  payday  or  other  regularly scheduled time on which the obligor pays to
    20  the consumer wages or compensation earned or that have  accrued  to  the
    21  benefit of such consumer.
    22    6.  "Earned  income  access  provider" or "provider" means a person or
    23  entity that:
    24    (a) provides, or offers to provide, on behalf  of  an  obligor  earned
    25  income  access  transactions  to consumers earning wages or compensation
    26  from the obligor; or
    27    (b) offers earned income access transactions to, or enters into earned
    28  income transactions with, consumers.
    29    7. "Exempt organization" shall mean any banking organization,  foreign
    30  banking corporation licensed by the superintendent or the comptroller of
    31  the  currency to transact business in this state, national bank, federal
    32  savings bank, federal  savings  and  loan  association,  federal  credit
    33  union,  or any bank, trust company, savings bank, savings and loan asso-
    34  ciation, or credit union organized under the laws of any other state  or
    35  any  instrumentality  created by the United States or any state with the
    36  power to make mortgage loans. Subject to  such  regulations  as  may  be
    37  promulgated  by  the  superintendent,  "exempt  organization"  may  also
    38  include any subsidiary of such entities.
    39    8. "Non-recourse" means the  unavailability  of  any  legal  cause  of
    40  action  or remedy against a consumer relating to an earned income access
    41  transaction.
    42    9. "Notice" means communication from the provider to the consumer in a
    43  clear and conspicuous manner.
    44    10. "Obligor" means a person or entity  who  is  obligated  to  pay  a
    45  consumer  any  sum  of  money on an hourly, project-based, piecework, or
    46  other basis for labor or services performed by the consumer  for  or  on
    47  behalf  of  that person or entity. Obligor does not include the customer
    48  of an obligor or another third party that has an obligation to make  any
    49  payment to a consumer based solely on the consumer's agency relationship
    50  with the obligor.
    51    11. "Fees" means any amount charged by a provider to a consumer for an
    52  earned  income  access  transaction,  including  amounts  to  be paid as
    53  described in paragraph (h) of subdivision two of section  three  hundred
    54  seventy-four-gg of this article.
    55    12.  "Proceeds"  means  funds  received  by  a consumer pursuant to an
    56  earned income access transaction.

        S. 916--B                           3

     1    § 374-bb. License. 1. No person or entity, except for an exempt organ-
     2  ization as defined in this article, shall  engage  in  the  business  of
     3  providing or offering earned income access transactions to consumers, or
     4  enter  into an earned income access transaction with a consumer, without
     5  first obtaining a license.
     6    2.  An  application for a license under this article shall be in writ-
     7  ing, under oath and in the form prescribed by the superintendent.
     8    3. At the time of filing an application for a license,  the  applicant
     9  shall  pay to the superintendent an application fee. The application fee
    10  shall be as prescribed pursuant to section eighteen-a of this chapter.
    11    4. A license granted pursuant to this article shall  be  valid  unless
    12  revoked  or suspended by the superintendent or surrendered by the licen-
    13  see.
    14    § 374-cc. Action by superintendent on application. 1. After the filing
    15  of an application for a license accompanied by payment of the  fees  for
    16  license and investigation, it shall be substantively reviewed. After the
    17  application  is deemed sufficient and complete, the superintendent shall
    18  issue the license, or the superintendent may refuse to issue the license
    19  if the superintendent shall  find  that  the  financial  responsibility,
    20  experience, character and general fitness of the applicant or any person
    21  associated  with the applicant are not such as to command the confidence
    22  of the community and to warrant the belief that  the  business  will  be
    23  conducted  honestly,  fairly  and  efficiently  within  the purposes and
    24  intent of this article. For the purpose of this subdivision, the  appli-
    25  cant  shall  be deemed to include all the members of the applicant if it
    26  is a partnership or unincorporated association, and all  the  stockhold-
    27  ers,  officers  and  directors  of the applicant if it is a corporation.
    28  Such license to engage in business in accordance with the provisions  of
    29  this  article  at  the  location  specified  in the application shall be
    30  executed in triplicate by  the  superintendent  and  the  superintendent
    31  shall  transmit  one  copy  thereof to the applicant, file a copy in the
    32  office of the department of financial services, and file a copy  in  the
    33  office  of  the clerk of the county in which is located the place desig-
    34  nated in such license.
    35    2. If the superintendent refuses to issue a license,  the  superinten-
    36  dent  shall  notify the applicant of the denial, return to the applicant
    37  the sum paid as a license fee, but retain the investigation fee to cover
    38  the costs of investigating the applicant.
    39    3. Each license issued pursuant to this article shall remain  in  full
    40  force unless it is surrendered by the licensee, revoked or suspended.
    41    §  374-dd.  License  provisions and posting. 1. A license issued under
    42  this article shall state the name and address of the  licensee,  and  if
    43  the  licensee  be  a  co-partnership  or  association,  the names of the
    44  members thereof, and if a corporation the date and place of its incorpo-
    45  ration.
    46    2. Such license shall be kept conspicuously posted in  the  office  of
    47  the  licensee  and  on the mobile application or website of the licensee
    48  and shall not be transferable or assignable.
    49    § 374-ee. Grounds for suspension or revocation of license;  procedure.
    50  1.  A license granted pursuant to this section shall not be renewed, and
    51  shall be revoked or suspended by the superintendent upon a finding that:
    52    (a) the licensee has not complied with reporting requirements;
    53    (b)  the  licensee has violated any provision of this article, the act
    54  of congress entitled "Truth in Lending Act" and the  regulations  there-
    55  under,  as  such act and regulations may from time to time be amended or

        S. 916--B                           4

     1  any rule or regulation lawfully made by  the  superintendent  under  and
     2  within the authority of this article;
     3    (c)  any fact of condition exists which, if it had existed at the time
     4  of the  original  application  for  such  license,  clearly  would  have
     5  warranted the superintendent's refusal to issue such license; or
     6    (d)  the licensee has failed to pay any sum of money lawfully demanded
     7  by the superintendent or to comply with any demand, ruling  or  require-
     8  ment of the superintendent.
     9    2.  Any licensee may surrender any license by delivering to the super-
    10  intendent written notice  that  the  licensee  thereby  surrenders  such
    11  license,  but  such  surrender shall not affect such licensee's civil or
    12  criminal liability for acts committed prior to such surrender.
    13    3. Every license issued hereunder shall remain  in  force  and  effect
    14  until the same shall have been surrendered, revoked, suspended, or shall
    15  have expired, in accordance with the provisions of this article, but the
    16  superintendent  shall  have authority to reinstate suspended licenses or
    17  to issue new licenses to a licensee whose license or licenses shall have
    18  been revoked if no fact or condition then  exists  which  clearly  would
    19  have warranted the superintendent's refusal to issue such license.
    20    4.  Whenever  the  superintendent  shall  revoke  or suspend a license
    21  issued pursuant to this  article,  the  superintendent  shall  forthwith
    22  execute in triplicate a written order to that effect. The superintendent
    23  shall  file one copy of such order in the office of the department, file
    24  another in the office of the clerk of the county in which is located the
    25  place designated in such license and forthwith serve the third copy upon
    26  the licensee, which order may be reviewed  in  the  manner  provided  by
    27  article  seventy-eight of the civil practice law and rules. Such special
    28  proceeding for review as authorized by this section  must  be  commenced
    29  within  thirty days from the date of such order of suspension or revoca-
    30  tion.
    31    5. The superintendent may, on good cause shown, or where  there  is  a
    32  substantial  risk  of public harm, without notice and a hearing, suspend
    33  any license issued pursuant to this article for a period  not  exceeding
    34  thirty days, pending investigation. "Good cause", as used in this subdi-
    35  vision,  shall  exist only when the licensee has engaged in or is likely
    36  to engage in a practice prohibited by this article or engages in dishon-
    37  est or inequitable practices which may cause  substantial  harm  to  the
    38  persons afforded the protection of this article.
    39    § 374-ff. Investigations and examinations. 1. The superintendent shall
    40  have  the  power to make such investigations as the superintendent shall
    41  deem necessary to determine whether any provider or any other person has
    42  violated any of the provisions of this article, or whether any  licensee
    43  has  conducted  itself in such manner as would justify the revocation of
    44  its license, and to the extent necessary  therefor,  the  superintendent
    45  may  require  the  attendance  of and examine any person under oath, and
    46  shall have the power to compel the production  of  all  relevant  books,
    47  records, accounts, and documents.
    48    2.  The  superintendent shall have the power to make such examinations
    49  of the books, records, accounts and documents used in  the  business  of
    50  any  licensee  as  the  superintendent shall deem necessary to determine
    51  whether any such licensee has violated any of  the  provisions  of  this
    52  article.
    53    3.  The expenses incurred in making any examination pursuant to subdi-
    54  vision two of this section shall be assessed against  and  paid  by  the
    55  licensee  so examined, except that traveling and subsistence expenses so
    56  incurred shall  be  charged  against  and  paid  by  licensees  in  such

        S. 916--B                           5

     1  proportions  as  the  superintendent shall deem just and reasonable, and
     2  such proportionate charges shall be added to the assessment of the other
     3  expenses incurred upon each examination.   Upon written  notice  by  the
     4  superintendent  of  the  total  amount  of such assessment, the licensee
     5  shall become liable for and shall pay such assessment to the superinten-
     6  dent.
     7    4. All reports of examinations and investigations, and all correspond-
     8  ence and memoranda concerning or arising out  of  such  examinations  or
     9  investigations,  including any duly authenticated copy or copies thereof
    10  in the possession of any licensee or the department, shall be  confiden-
    11  tial  communications,  shall not be subject to subpoena and shall not be
    12  made public unless, in the judgment of the superintendent, the  ends  of
    13  justice  and  the  public advantage will be subserved by the publication
    14  thereof, in which event the superintendent may publish or authorize  the
    15  publication  of  a copy of any such report or other material referred to
    16  in this subdivision, or any part thereof, in such manner as  the  super-
    17  intendent may deem proper.
    18    §  374-gg.  Compliance.  1. An earned income access provider shall not
    19  operate in this state unless:
    20    (a) the provider is licensed pursuant  to  this  article,  unless  the
    21  provider is an exempt organization pursuant to this article;
    22    (b)  in  the event a provider takes custody of a consumer's earned but
    23  unpaid income before paying  proceeds  to  the  consumer,  the  provider
    24  ensures  that  the  proceeds  are  fully  insured by the Federal Deposit
    25  Insurance Corporation at the consumer's individual account level;
    26    (c) the provider complies with National Automated Clearing House Asso-
    27  ciation rules, and when a debit is initiated to a consumer's account for
    28  a payment, and the debit is returned  for  insufficient  or  uncollected
    29  funds,  the  debit  can be reinitiated only in accordance with paragraph
    30  (d) of subdivision two of this section;
    31    (d) the provider does not provide to any third party, including  obli-
    32  gors,  any  non-public  personal  information  about consumers except in
    33  compliance with applicable federal and state law, and the provider  does
    34  not  sell,  share,  or  otherwise disclose personal information that the
    35  provider solicits or collects from consumers in connection with offering
    36  earned income access transactions or related services;
    37    (e) the provider gives notice to the consumer of the costs  of  earned
    38  income  transactions  in accordance with rules established by the super-
    39  intendent; and
    40    (f) the provider, no less frequently than quarterly,  delivers  notice
    41  in writing to each consumer to whom it has paid proceeds in that quarter
    42  containing information to be prescribed by the superintendent, including
    43  but  not  limited to an itemization of transactions and costs, the total
    44  amount the consumer has paid in  fees,  information  on  how  to  report
    45  complaints  to the provider and to the department of financial services,
    46  definitions of terms used in the notice, and an explanation of the costs
    47  of the services provided;
    48    2. It is a violation of this  article  to  conduct  an  earned  income
    49  access transaction unless:
    50    (a) the transaction is non-recourse;
    51    (b)  the  provider  has  a  reasonable basis to believe that the total
    52  amount of the proceeds and fees associated with the transaction does not
    53  exceed a percentage, to be set by the superintendent, of the  consumer's
    54  earned but unpaid income;
    55    (c) the provider does not engage in debt collection activity or retain
    56  the  services  of  another  to  engage  in  debt  collection activity in

        S. 916--B                           6

     1  connection with the earned income access transaction and does not convey
     2  the debt itself;
     3    (d)  if  repayment  is  to  be  made  through  a debit of a consumer's
     4  account, the debit is made in accordance with rules established  by  the
     5  superintendent;
     6    (e)  the  provider  charges  a fee for the earned income access trans-
     7  action that does not exceed the earned income access rate cap or charges
     8  no fee for the earned income access transaction;
     9    (f) no portion of the earned but unpaid income to be paid as  part  of
    10  the  earned  income  access  transaction  is  used before receipt by the
    11  consumer to settle or pay down an obligation arising from a prior earned
    12  income access transaction, and no proceeds roll over or  are  structured
    13  in  any  way  to create any continuing obligation to the provider on the
    14  part of a consumer;
    15    (g) before a consumer enters into  the  earned  income  access  trans-
    16  action,  the provider gives the consumer notice, in writing, of all fees
    17  associated with the earned income access transaction and the cost of the
    18  transaction, including the cost expressed as an annual percentage rate;
    19    (h) if the provider offers consumers the opportunity to pay  an  addi-
    20  tional  amount for an earned income access transaction voluntarily, such
    21  as a tip, (i) the provider gives notice to the consumer in writing  that
    22  paying  such  additional  amount  is  not  required  for the consumer to
    23  receive the proceeds, and (ii) the provider does not suggest  an  amount
    24  to  the consumer by, for example, offering amount options from which the
    25  consumer may select or pre-filling an amount in any  form  used  in  the
    26  transaction  process,  or otherwise using a transaction process designed
    27  to require the consumer to take affirmative action to avoid or  opt  out
    28  of paying such additional amount;
    29    (i)  the  provider does not charge a late fee or prepayment penalty on
    30  the earned income access transaction;
    31    (j) the provider does not pull a credit  report  or  otherwise  assess
    32  credit risk of the consumer prior to, during, or after the earned income
    33  access  transaction  except  that the provider may verify the consumer's
    34  source of income as part of determining the amount of the proceeds;
    35    (k) the provider does not report on the earned  income  access  trans-
    36  action  to  a  consumer  reporting agency prior to, during, or after the
    37  transaction;
    38    (l) the provider does not require a consumer to  waive  the  right  to
    39  class action to engage in an earned income access transaction;
    40    (m)  the  provider gives a consumer written notice of any amendment to
    41  the contract or terms of service for earned income access  transactions,
    42  and  the  consumer  agrees  to such amendments before proceeding with an
    43  earned income access transaction to which such amendments  would  apply;
    44  and
    45    (n) the consumer is eighteen years of age or older.
    46    3.  Transactions  made  in  accordance  with this section shall not be
    47  subject to usury laws.
    48    4. If a provider charges indirect transaction fees,  such  fees  shall
    49  not exceed the maximum allowable amount as set by the superintendent.
    50    § 374-hh. Advertising. 1. No advertisement for an earned income access
    51  transaction service shall be misleading or otherwise deceptive.
    52    2. An advertisement for earned income access transaction service shall
    53  clearly and accurately disclose the costs of the service to consumers.
    54    3.  The  superintendent  shall  adopt  rules  governing advertising of
    55  earned income transaction services consistent with the purposes of  this
    56  section.

        S. 916--B                           7

     1    §  374-ii.  Regulations  and  rulings.  The  superintendent  is hereby
     2  authorized and empowered to make such  rules  and  regulations,  conduct
     3  hearings and make such specific rulings, orders, demands and findings as
     4  may  be  necessary for the proper conduct of the business authorized and
     5  licensed under and for the enforcement of this article.
     6    §  374-jj. Changes in control. 1. It shall be unlawful except with the
     7  prior approval of the superintendent for any action to  be  taken  which
     8  results  in  a change of control of the business of a licensee. Prior to
     9  any change of control, the person desirous of acquiring control  of  the
    10  business of a licensee shall make written application to the superinten-
    11  dent  and  pay  an  investigation  fee as prescribed pursuant to section
    12  eighteen-a of this chapter to the superintendent. The application  shall
    13  contain  such  information as the superintendent, by rule or regulation,
    14  may prescribe as necessary or appropriate for the purpose of making  the
    15  determination required by subdivision two of this section.
    16    2.  The superintendent shall approve or disapprove the proposed change
    17  of control of a licensee in accordance with the provisions  of  subdivi-
    18  sion one of this section.
    19    3.  For  a period of six months from the date of qualification thereof
    20  and for such  additional  period  of  time  as  the  superintendent  may
    21  prescribe,  in  writing,  the  provisions of subdivisions one and two of
    22  this section shall not apply to a transfer of control  by  operation  of
    23  law  to the legal representative, as hereinafter defined, of one who has
    24  control of a  licensee.  Thereafter,  such  legal  representative  shall
    25  comply  with the provisions of subdivisions one and two of this section.
    26  The provisions of subdivisions one and two  of  this  section  shall  be
    27  applicable  to  an application made under such section by a legal repre-
    28  sentative.
    29    4. The term "legal representative", for the purposes of this  section,
    30  shall  mean  one  duly appointed by a court of competent jurisdiction to
    31  act as  executor,  administrator,  trustee,  committee,  conservator  or
    32  receiver,  including  one  who  succeeds  a legal representative and one
    33  acting  in  an  ancillary  capacity  thereto  in  accordance  with   the
    34  provisions of such court appointment.
    35    5. As used in this section: (a) the term "person" includes an individ-
    36  ual,  partnership,  corporation,  association or any other organization,
    37  and (b) the term "control" means the possession, directly or indirectly,
    38  of the power to direct or cause the  direction  of  the  management  and
    39  policies of a licensee, whether through the ownership of voting stock of
    40  such  licensee,  the  ownership  of  voting  stock  of  any person which
    41  possesses such power or otherwise. Control shall be presumed to exist if
    42  any person, directly or indirectly, owns, controls or holds  with  power
    43  to vote ten per centum or more of the voting stock of any licensee or of
    44  any  person  which  owns,  controls  or holds with power to vote ten per
    45  centum or more of the voting stock of any licensee, but no person  shall
    46  be  deemed to control a licensee solely by reason of being an officer or
    47  director of such licensee or  person.  The  superintendent  may  in  the
    48  superintendent's  discretion,  upon the application of a licensee or any
    49  person who, directly or indirectly, owns, controls or holds  with  power
    50  to  vote  or seeks to own, control or hold with power to vote any voting
    51  stock of such licensee, determine whether or not the ownership,  control
    52  or  holding of such voting stock constitutes or would constitute control
    53  of such licensee for purposes of this section.
    54    § 374-kk. Violation  and  penalties.  1.  Any  person,  including  any
    55  member,  officer,  director  or  employee of a provider, who violates or
    56  participates in the violation of any provision of this article,  or  who

        S. 916--B                           8

     1  knowingly makes any incorrect statement of a material fact in any appli-
     2  cation, report or statement filed pursuant to this article, or who know-
     3  ingly omits to state any material fact necessary to give the superinten-
     4  dent  any information lawfully required by the superintendent or refuses
     5  to permit any lawful investigation or examination, shall be guilty of  a
     6  misdemeanor  and,  upon  conviction,  shall  be fined not more than five
     7  hundred dollars or imprisoned for not more than six months or  both,  in
     8  the discretion of the court.
     9    2.  No provider shall make, directly or indirectly, orally or in writ-
    10  ing, or by any method, practice or device, a  representation  that  such
    11  provider  is licensed under the banking law except that a licensee under
    12  this chapter may make a representation that the licensee is licensed  as
    13  an earned income access provider under this chapter.
    14    §  374-ll.  Books and records; reports. 1. The provider shall keep and
    15  use in its business such books, accounts and records as will enable  the
    16  superintendent  to determine whether such provider is complying with the
    17  provisions of this article and with the rules and  regulations  lawfully
    18  made by the superintendent hereunder. Every provider shall preserve such
    19  books,  accounts  and  records  for  at least six years after making the
    20  final entry in respect to any earned wage  access  transaction  recorded
    21  therein;  provided,  however,  the  preservation of photographic reprod-
    22  uctions thereof or records in photographic form shall constitute compli-
    23  ance with this requirement.
    24    2. By a date to be set by  the  superintendent,  each  provider  shall
    25  annually  file  a report with the superintendent giving such information
    26  as the superintendent may require concerning the business and operations
    27  during the preceding calendar year of  the  provider  within  the  state
    28  under the authority of this article. Such report shall be subscribed and
    29  affirmed  as  true by the provider under the penalties of perjury and be
    30  in the form prescribed by the superintendent. In addition to such annual
    31  reports, the superintendent may require  of  providers  such  additional
    32  regular  or  special reports as the superintendent may deem necessary to
    33  the proper supervision of providers under this article. Such  additional
    34  reports  shall be in the form prescribed by the superintendent and shall
    35  be subscribed and affirmed as true under the penalties of perjury.
    36    § 374-mm. Annual report. 1. On or before the first  day  of  April  of
    37  each  year,  a provider shall submit an annual report to the superinten-
    38  dent that includes all of the  following  information  for  earned  wage
    39  access  services  provided  by  such  provider during the prior calendar
    40  year:
    41    (a) gross revenue attributable to earned wage access providers;
    42    (b) the total number of transactions in which proceeds  were  remitted
    43  to consumers;
    44    (c)  the total number of unique consumers to whom proceeds were remit-
    45  ted;
    46    (d) the total dollar amount  of  proceeds  the  provider  remitted  to
    47  consumers;
    48    (e)  the  total  dollar  amount  of  payments  other than proceeds the
    49  provider received from consumers;
    50    (f) the total number of transactions in which proceeds  were  remitted
    51  to  consumers  for  which  the provider did not receive repayment of any
    52  outstanding proceeds, and the total dollar amount of such transactions;
    53    (g) the total number of transactions in which proceeds  were  remitted
    54  to  consumers,  for  which  the  provider  received partial repayment of
    55  outstanding proceeds, the total dollar amount of such transactions,  and

        S. 916--B                           9

     1  the  total  dollar  amount  of outstanding proceeds attributable to such
     2  transactions; and
     3    (h)  the  total  number  of transactions in which outstanding proceeds
     4  were repaid after the original, scheduled repayment date, and the  total
     5  dollar amount of such transactions.
     6    2.  Failure  of  a  provider  to  submit a report on a timely basis in
     7  accordance with this article may  constitute  grounds  for  disciplinary
     8  action by the superintendent.
     9    § 374-nn. Severability. If any provision of this article or the appli-
    10  cation thereof to any person or circumstances is held invalid, the inva-
    11  lidity  thereof shall not affect other provisions or applications of the
    12  article which can be given  effect  without  the  invalid  provision  or
    13  application,  and to this end the provisions of this article are severa-
    14  ble.
    15    § 2. Subdivision 1 of section 36 of the banking  law,  as  amended  by
    16  chapter 146 of the laws of 1961, is amended to read as follows:
    17    1.  The  superintendent  shall have the power to examine every banking
    18  organization, every bank holding company and any non-banking  subsidiary
    19  thereof  (as  such terms "bank holding company" and "non-banking subsid-
    20  iary" are defined in article three-A of this chapter) and every licensed
    21  lender and licensed earned income access provider at any time  prior  to
    22  its  dissolution  whenever  in  his  or her judgment such examination is
    23  necessary or advisable.
    24    § 3. Subdivisions 3 and 5 of section 37 of the banking law, as amended
    25  by chapter 360 of the laws of 1984, are amended to read as follows:
    26    3. In addition to any reports expressly required by this chapter to be
    27  made, the superintendent may require any banking organization,  licensed
    28  lender,  licensed  earned  income  access  provider,  licensed casher of
    29  checks, licensed mortgage banker, foreign banking  corporation  licensed
    30  by the superintendent to do business in this state, bank holding company
    31  and  any non-banking subsidiary thereof, corporate affiliate of a corpo-
    32  rate banking organization within  the  meaning  of  subdivision  six  of
    33  section  thirty-six  of this article and any non-banking subsidiary of a
    34  corporation which is an affiliate of a  corporate  banking  organization
    35  within  the  meaning  of subdivision six-a of section thirty-six of this
    36  article to make special reports to him or her at such times as he or she
    37  may prescribe.
    38    5. The superintendent may extend at his or  her  discretion  the  time
    39  within   which  a  banking  organization,  foreign  banking  corporation
    40  licensed by the superintendent to do business in this state, bank  hold-
    41  ing  company  or  any non-banking subsidiary thereof, licensed casher of
    42  checks, licensed mortgage banker, private banker, licensed earned income
    43  access provider or licensed lender is required  to  make  and  file  any
    44  report to the superintendent.
    45    §  4. Section 39 of the banking law, as amended by section 3 of part L
    46  of chapter 58 of the laws of 2019, is amended to read as follows:
    47    § 39. Orders of superintendent. 1. To appear and explain  an  apparent
    48  violation. Whenever it shall appear to the superintendent that any bank-
    49  ing  organization,  bank  holding  company,  registered mortgage broker,
    50  licensed mortgage banker, licensed  student  loan  servicer,  registered
    51  mortgage  loan  servicer,  licensed  mortgage  loan originator, licensed
    52  lender, licensed earned  income  access  provider,  licensed  casher  of
    53  checks,  licensed  sales  finance  company,  licensed  insurance premium
    54  finance agency, licensed transmitter of money, licensed budget  planner,
    55  out-of-state state bank that maintains a branch or branches or represen-
    56  tative  or  other  offices in this state, or foreign banking corporation

        S. 916--B                          10

     1  licensed by the superintendent to do business or  maintain  a  represen-
     2  tative  office  in  this state has violated any law or regulation, he or
     3  she may, in his or her discretion, issue an order describing such appar-
     4  ent  violation  and  requiring  such  banking organization, bank holding
     5  company, registered mortgage broker, licensed mortgage banker,  licensed
     6  student loan servicer, licensed mortgage loan originator, licensed lend-
     7  er,  licensed  earned income access provider, licensed casher of checks,
     8  licensed sales finance company, licensed insurance premium finance agen-
     9  cy, licensed transmitter of money, licensed budget planner, out-of-state
    10  state bank that maintains a branch  or  branches  or  representative  or
    11  other  offices  in  this state, or foreign banking corporation to appear
    12  before him or her, at a time and place fixed in said order,  to  present
    13  an explanation of such apparent violation.
    14    2.  To discontinue unauthorized or unsafe and unsound practices. When-
    15  ever it shall appear to the superintendent that  any  banking  organiza-
    16  tion,  bank  holding company, registered mortgage broker, licensed mort-
    17  gage banker, licensed student loan servicer,  registered  mortgage  loan
    18  servicer,  licensed  mortgage loan originator, licensed lender, licensed
    19  earned income access provider, licensed casher of checks, licensed sales
    20  finance company, licensed insurance  premium  finance  agency,  licensed
    21  transmitter  of  money, licensed budget planner, out-of-state state bank
    22  that maintains a branch or branches or representative or  other  offices
    23  in  this  state,  or  foreign banking corporation licensed by the super-
    24  intendent to do business in this state  is  conducting  business  in  an
    25  unauthorized  or unsafe and unsound manner, he or she may, in his or her
    26  discretion, issue an order directing the discontinuance  of  such  unau-
    27  thorized or unsafe and unsound practices, and fixing a time and place at
    28  which  such banking organization, bank holding company, registered mort-
    29  gage broker, licensed mortgage banker, licensed student  loan  servicer,
    30  registered  mortgage  loan  servicer, licensed mortgage loan originator,
    31  licensed lender, licensed earned income access provider, licensed casher
    32  of checks, licensed sales finance company,  licensed  insurance  premium
    33  finance  agency, licensed transmitter of money, licensed budget planner,
    34  out-of-state state bank that maintains a branch or branches or represen-
    35  tative or other offices in this state, or  foreign  banking  corporation
    36  may  voluntarily  appear before him or her to present any explanation in
    37  defense of the practices directed in said order to be discontinued.
    38    3. To make good impairment of capital or  to  ensure  compliance  with
    39  financial  requirements.  Whenever it shall appear to the superintendent
    40  that the capital or capital stock  of  any  banking  organization,  bank
    41  holding  company  or any subsidiary thereof which is organized, licensed
    42  or registered pursuant to this chapter, is impaired,  or  the  financial
    43  requirements  imposed by subdivision one of section two hundred two-b of
    44  this chapter or any regulation of the superintendent on  any  branch  or
    45  agency  of  a  foreign banking corporation or the financial requirements
    46  imposed by this chapter or any regulation of the superintendent  on  any
    47  licensed  lender,  licensed  earned  income  access provider, registered
    48  mortgage broker, licensed mortgage banker, licensed student loan  servi-
    49  cer, licensed casher of checks, licensed sales finance company, licensed
    50  insurance   premium  finance  agency,  licensed  transmitter  of  money,
    51  licensed budget planner or private banker are not satisfied, the  super-
    52  intendent  may,  in  the  superintendent's  discretion,  issue  an order
    53  directing that such banking organization, bank holding  company,  branch
    54  or  agency of a foreign banking corporation, registered mortgage broker,
    55  licensed mortgage banker, licensed student loan servicer, licensed lend-
    56  er, licensed earned income access provider, licensed casher  of  checks,

        S. 916--B                          11

     1  licensed sales finance company, licensed insurance premium finance agen-
     2  cy,  licensed  transmitter of money, licensed budget planner, or private
     3  banker make good such deficiency forthwith or within a time specified in
     4  such order.
     5    4. To make good encroachments on reserves. Whenever it shall appear to
     6  the superintendent that either the total reserves or reserves on hand of
     7  any  banking  organization, branch or agency of a foreign banking corpo-
     8  ration are below the amount required by or pursuant to this  chapter  or
     9  any other applicable provision of law or regulation to be maintained, or
    10  that  such  banking  organization, branch or agency of a foreign banking
    11  corporation is not keeping its reserves on  hand  as  required  by  this
    12  chapter  or  any  other applicable provision of law or regulation, he or
    13  she may, in his or her discretion, issue an order  directing  that  such
    14  banking  organization, branch or agency of a foreign banking corporation
    15  make good such reserves forthwith or within a  time  specified  in  such
    16  order, or that it keep its reserves on hand as required by this chapter.
    17    5.  To keep books and accounts as prescribed. Whenever it shall appear
    18  to the superintendent that any banking organization, bank holding compa-
    19  ny, registered  mortgage  broker,  licensed  mortgage  banker,  licensed
    20  student loan servicer, registered mortgage loan servicer, licensed mort-
    21  gage  loan  originator,  licensed  lender, licensed earned income access
    22  provider, licensed casher of checks,  licensed  sales  finance  company,
    23  licensed  insurance  premium  finance  agency,  licensed  transmitter of
    24  money, licensed budget planner, agency or branch of  a  foreign  banking
    25  corporation licensed by the superintendent to do business in this state,
    26  does  not keep its books and accounts in such manner as to enable him or
    27  her to readily ascertain its true condition, he or she may,  in  his  or
    28  her discretion, issue an order requiring such banking organization, bank
    29  holding  company,  registered mortgage broker, licensed mortgage banker,
    30  licensed student  loan  servicer,  registered  mortgage  loan  servicer,
    31  licensed  mortgage  loan  originator,  licensed  lender, licensed earned
    32  income access  provider,  licensed  casher  of  checks,  licensed  sales
    33  finance  company,  licensed  insurance  premium finance agency, licensed
    34  transmitter of money, licensed budget planner, or foreign banking corpo-
    35  ration, or the officers or agents thereof, or any of them, to  open  and
    36  keep  such books or accounts as he or she may, in his or her discretion,
    37  determine and prescribe for the purpose of keeping accurate and  conven-
    38  ient records of its transactions and accounts.
    39    6. As used in this section, "bank holding company" shall have the same
    40  meaning as that term is defined in section one hundred forty-one of this
    41  chapter.
    42    §  5. Paragraph (a) of subdivision 1 of section 44 of the banking law,
    43  as amended by section 4 of part L of chapter 58 of the laws of 2019,  is
    44  amended to read as follows:
    45    (a) Without limiting any power granted to the superintendent under any
    46  other provision of this chapter, the superintendent may, in a proceeding
    47  after  notice  and a hearing, require any safe deposit company, licensed
    48  lender, licensed earned  income  access  provider,  licensed  casher  of
    49  checks,  licensed  sales  finance  company,  licensed  insurance premium
    50  finance agency, licensed transmitter of money, licensed mortgage banker,
    51  licensed student loan servicer,  registered  mortgage  broker,  licensed
    52  mortgage  loan originator, registered mortgage loan servicer or licensed
    53  budget planner to pay to the people of this  state  a  penalty  for  any
    54  violation  of  this  chapter, any regulation promulgated thereunder, any
    55  final or temporary order issued pursuant to section thirty-nine of  this
    56  article,  any  condition  imposed  in  writing  by the superintendent in

        S. 916--B                          12

     1  connection with the grant of any application or request, or any  written
     2  agreement entered into with the superintendent.
     3    § 6. This act shall take effect on the one hundred eightieth day after
     4  it  shall have become a law. Effective immediately, the addition, amend-
     5  ment and/or repeal of any rule or regulation necessary for the implemen-
     6  tation of this act on its effective date are authorized to be  made  and
     7  completed on or before such effective date.