The definitions in this section apply throughout this division, except as otherwise provided in this division or if the context clearly indicates otherwise:
(a)CA Financial Code § 90005(a) “Affiliate” means any person that controls, is controlled by, or is under common control with another person. For purposes of this definition, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person.
(b)CA Financial Code § 90005(b) “Department” means the Department of Financial Protection and Innovation.
(c)CA Financial Code § 90005(c) “Consumer” means an individual or an agent, trustee, or representative acting on behalf of an individual or the
estate, trust, or joint trust of an individual, however denominated.
(d)CA Financial Code § 90005(d) “Consumer financial law” means a federal or California law that directly and specifically regulates the manner, content, or terms and conditions of any financial transaction, or any account, product, or service related thereto, with respect to a consumer.
(e)CA Financial Code § 90005(e) “Consumer financial product or service” means either of the following:
(1)CA Financial Code § 90005(e)(1) A financial product or service that is delivered, offered, or provided for use by consumers primarily for personal, family, or household purposes.
(2)CA Financial Code § 90005(e)(2) A financial product or service as described in paragraph (11) of subdivision (k).
(f)CA Financial Code § 90005(f) “Covered person” means, to the extent not preempted
by federal law, any of the following:
(1)CA Financial Code § 90005(f)(1) Any person that engages in offering or providing a consumer financial product or service to a resident of this state.
(2)CA Financial Code § 90005(f)(2) Any affiliate of a person described in this subdivision if the affiliate acts as a service provider to the person.
(3)CA Financial Code § 90005(f)(3) Any service provider to the extent that the person engages in the offering or provision of its own consumer financial product or service.
(g)CA Financial Code § 90005(g) “Credit” means the right granted by a person to another person to defer payment of a debt, incur debt and defer its payment, or purchase property or services and defer payment for those purchases.
(h)CA Financial Code § 90005(h) “Debt” means any obligation of a person to pay another person money
regardless of whether the obligation is absolute or contingent, has been reduced to judgment, is fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured and includes any obligation that gives rise to right of an equitable remedy for breach of performance if the breach gives rise to a right to payment.
(i)CA Financial Code § 90005(i) “Deposit-taking activity” means any of the following:
(1)CA Financial Code § 90005(i)(1) The acceptance of deposits, maintenance of deposit accounts, or the provision of services related to the acceptance of deposits or the maintenance of deposit accounts.
(2)CA Financial Code § 90005(i)(2) The acceptance of funds, the provision of other services related to the acceptance of funds, or the maintenance of member share accounts by a credit union.
(3)CA Financial Code § 90005(i)(3) The receipt of funds or the equivalent
thereof, as the department may determine by rule or order, received or held by a covered person or an agent for a covered person for the purpose of facilitating a payment or transferring funds or value of funds between a consumer and a third party.
(j)CA Financial Code § 90005(j) “Commissioner” means the Commissioner of Financial Protection and Innovation.
(k)CA Financial Code § 90005(k) “Financial product or service” means:
(1)CA Financial Code § 90005(k)(1) Extending credit and servicing extensions of credit, including acquiring, purchasing, selling, brokering extensions of credit, other than solely extending commercial credit to a person who originates consumer credit transactions.
(2)CA Financial Code § 90005(k)(2) Extending or brokering leases of personal or real property that are the functional equivalent of purchase finance arrangements, if all of the
following:
(A)CA Financial Code § 90005(k)(2)(A) The lease is on a nonoperating basis.
(B)CA Financial Code § 90005(k)(2)(B) The initial term of the lease is at least 90 days.
(C)CA Financial Code § 90005(k)(2)(C) In the case of a lease involving real property, at the inception of the initial lease, the transaction is intended to result in ownership of the leased property to be transferred to the lessee, subject to standards prescribed by the department.
(3)CA Financial Code § 90005(k)(3) Providing real estate settlement services.
(4)CA Financial Code § 90005(k)(4) Engaging in deposit-taking activities, transmitting or exchanging funds, or otherwise acting as a custodian of funds or any financial instrument for use by or on behalf of a consumer.
(5)CA Financial Code § 90005(k)(5) Selling, providing, or issuing stored
value or payment instruments, except that, in the case of a sale of, or transaction to reload, stored value, only if the seller exercises substantial control over the terms or conditions of the stored value provided to the consumer where, for purposes of this paragraph, both:
(A)CA Financial Code § 90005(k)(5)(A) A seller shall not be found to exercise substantial control over the terms or conditions of the stored value if the seller is not a party to the contract with the consumer for the stored value product, and another person is principally responsible for establishing the terms or conditions of the stored value.
(B)CA Financial Code § 90005(k)(5)(B) Advertising the nonfinancial goods or services of the seller on the stored value card or device is not in itself an exercise of substantial control over the terms or conditions.
(6)CA Financial Code § 90005(k)(6) Providing check cashing, check collection, or check
guaranty services.
(7)CA Financial Code § 90005(k)(7) Providing payments or other financial data processing products or services to a consumer by any technological means, including processing or storing financial or banking data for any payment instrument, or through any payment system or networks used for processing payment data, including payments made through an online banking system or mobile telecommunications network, except that a person shall not be deemed to be a covered person with respect to financial data processing solely because the person either:
(A)CA Financial Code § 90005(k)(7)(A) Is a merchant, retailer, or seller of any nonfinancial good or service who engages in financial data processing by transmitting or storing payment data about a consumer exclusively for purpose of initiating payment instructions by the consumer to pay that person for the purchase of, or to complete a commercial transaction for, the nonfinancial good
or service sold directly by that person to the consumer.
(B)CA Financial Code § 90005(k)(7)(B) Provides access to a host server to a person for purposes of enabling that person to establish and maintain a website.
(8)CA Financial Code § 90005(k)(8) Providing financial advisory services other than services relating to securities provided by a person regulated by the Securities Exchange Commission or a person regulated by a state securities commission, but only to the extent that such person acts in a regulated capacity, to consumers on individual financial matters or relating to proprietary financial products or services (other than by publishing any bona fide newspaper, news magazine, or business or financial publication of general and regular circulation, including publishing market data, news, or data analytics or investment information or recommendations that are not tailored to the individual needs of a particular consumer) including both
of the following:
(A)CA Financial Code § 90005(k)(8)(A) Providing credit counseling to any consumer.
(B)CA Financial Code § 90005(k)(8)(B) Providing services to assist a consumer with debt management or debt settlement, modifying the terms of any extension of credit, or avoiding foreclosure.
(9)CA Financial Code § 90005(k)(9) Collecting, analyzing, maintaining, or providing consumer report information or other account information, including information relating to the credit history of consumers, used or expected to be used in connection with any decision regarding the offering or provision of a consumer financial product or service, except to the extent that:
(A)CA Financial Code § 90005(k)(9)(A) A person does any of the following:
(i)CA Financial Code § 90005(k)(9)(A)(i) Collects, analyzes, or maintains information that relates solely to the transactions
between a consumer and that person.
(ii)CA Financial Code § 90005(k)(9)(A)(ii) Provides information to an affiliate of the person, as described in subdivision (a).
(iii)CA Financial Code § 90005(k)(9)(A)(iii) Provides information that is used or expected to be used solely in any decision regarding the offering or provision of a product or service that is not a consumer financial product or service.
(B)CA Financial Code § 90005(k)(9)(B) The information described in clause (i) of subparagraph (A) is not used by the person or affiliate in connection with any decision regarding the offering or provision of a consumer financial product or service to the consumer, other than credit described in subparagraph (A) of paragraph (1) of subdivision (e) of Section 90006.
(10)CA Financial Code § 90005(k)(10) Collecting debt related to any consumer financial product or service.
(11)CA Financial Code § 90005(k)(11) Directly or indirectly brokering the offer or sale of a franchise in this state on behalf of another.
(12)CA Financial Code § 90005(k)(12) Offering another financial product or service as may be defined by the department, by regulation, for purposes of this division, if the department finds that the financial product or service is either:
(A)CA Financial Code § 90005(k)(12)(A) Entered into or conducted as a subterfuge or with a purpose to evade any consumer financial law.
(B)CA Financial Code § 90005(k)(12)(B) Permissible for a bank or for a financial holding company to offer or to provide under any provision of law or regulation applicable to a bank or a financial holding company, and has, or likely will have, a material impact on consumers, excluding, however, solely from the department’s authority to define additional financial products and
services under this subparagraph and not the exercise of any other authority it may have, the following activities provided to a covered person:
(i)CA Financial Code § 90005(k)(12)(B)(i) Providing information products or services to a covered person for identity authentication.
(ii)CA Financial Code § 90005(k)(12)(B)(ii) Providing information products or services for fraud or identify theft detection, prevention, or investigation.
(iii)CA Financial Code § 90005(k)(12)(B)(iii) Providing document retrieval or delivery services.
(iv)CA Financial Code § 90005(k)(12)(B)(iv) Providing public records information retrieval.
(v)CA Financial Code § 90005(k)(12)(B)(v) Providing information products or services for anti-money laundering activities.
(13)CA Financial Code § 90005(k)(13) The term “financial product or service” does not include either of the
following:
(A)CA Financial Code § 90005(k)(13)(A) Insurance, as defined in Section 22 of the Insurance Code, regulated by the Department of Insurance.
(B)CA Financial Code § 90005(k)(13)(B) The provision, by a person, of electronic data transmission, routing, intermediate or transient storage, or connections to a telecommunications system or network, not including a person that provides those electronic conduit services if, when providing those services, the person does any of the following:
(i)CA Financial Code § 90005(k)(13)(B)(i) Selects or modifies the content of the electronic data.
(ii)CA Financial Code § 90005(k)(13)(B)(ii) Transmits, routes, stores, or provides connections for electronic data, including financial data, in a manner that the financial data is differentiated from other types of data of the same form that the person transmits, routes, or stores, or with respect to which,
provides connections.
(iii)CA Financial Code § 90005(k)(13)(B)(iii) Is a payee, payor, correspondent, or similar party to a payment transaction with a consumer.
(l)CA Financial Code § 90005(l) “Payment instrument” means a check, draft, warrant, money order, traveler’s check, electronic instrument, or other instrument, payment of funds, or monetary value, other than currency.
(m)CA Financial Code § 90005(m) “Person” means an individual, corporation, business trust, estate, trust, partnership, proprietorship, syndicate, limited liability company, association, joint venture, government, governmental subdivision, agency or instrumentality, public corporation or joint stock company, or any other organization or legal or commercial entity.
(n)Copy CA Financial Code § 90005(n)
(1)Copy CA Financial Code § 90005(n)(1) “Service provider” means any person that provides a material service to a covered
person in connection with the offering or provision by that covered person of a consumer financial product or service, including a person that either:
(A)CA Financial Code § 90005(n)(1)(A) Participates in designing, operating, or maintaining the consumer financial product or service.
(B)CA Financial Code § 90005(n)(1)(B) Processes transactions relating to the consumer financial product or service, other than unknowingly or incidentally transmitting or processing financial data in a manner that the data is undifferentiated from other types of data of the same form as the person transmits or processes.
(2)CA Financial Code § 90005(n)(2) The term “service provider” does not include a person solely by virtue of that person offering or providing to a covered person either:
(A)CA Financial Code § 90005(n)(2)(A) A support service of a type provided to businesses generally or a similar
ministerial service.
(B)CA Financial Code § 90005(n)(2)(B) Time or space for an advertisement for a consumer financial product or service through print, newspaper, or electronic media.
(o)Copy CA Financial Code § 90005(o)
(1)Copy CA Financial Code § 90005(o)(1) “Stored value” means funds or monetary value represented in any electronic format, whether or not specially encrypted, and stored or capable of storage on electronic media in such a way as to be retrievable and transferred electronically, and includes a prepaid debit card or product, or any other similar product, regardless of whether the amount of the funds or monetary value may be increased or reloaded.
(2)CA Financial Code § 90005(o)(2) Notwithstanding paragraph (1), the term “stored value” does not include a special purpose card or certificate, which shall be defined for purposes of this paragraph as funds or monetary value represented in any electronic format,
whether or not specially encrypted, that is all of the following:
(A)CA Financial Code § 90005(o)(2)(A) Issued by a merchant, retailer, or other seller of nonfinancial goods or services.
(B)CA Financial Code § 90005(o)(2)(B) Redeemable only for transactions with the merchant, retailer, or seller of nonfinancial goods or services or with an affiliate of such person, which affiliate itself is a merchant, retailer, or seller of nonfinancial goods or services.
(C)CA Financial Code § 90005(o)(2)(C) Issued in a specified amount that, except in the case of a card or product used solely for telephone services, may not be increased or reloaded.
(D)CA Financial Code § 90005(o)(2)(D) Purchased on a prepaid basis in exchange for payment.
(E)CA Financial Code § 90005(o)(2)(E) Honored upon presentation to the merchant, retailer, or seller of nonfinancial goods or
services or an affiliate of such person, which affiliate itself is a merchant, retailer, or seller of nonfinancial goods or services, only for any nonfinancial goods or services
(p)CA Financial Code § 90005(p) These definitions shall be interpreted consistently with the definitions in the Consumer Financial Protection Act of 2010 (12 U.S.C. Sec. 5481). Any inconsistency or ambiguity shall be resolved in favor of greater protections to the consumer and more expansive coverage.
