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Examples from American P2P Lending and Thai Rotating Savings and Credit Association

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Examples from American P2P Lending and Thai Rotating Savings and Credit Association Online Fundraising Through the Lenses of Law, Economics, and Sociology: Examples from American P2P Lending and Thai Rotating Savings and Credit Association by Poomsiri Dumrongvute A dissertation submitted as part of the requirements for the degree of Doctor of the Science of Law of the University of California, Berkeley Committee in charge: Professor Prasad Krishnamurthy, Chair Professor Robert Bartlett Assistant Professor Andreea Gorbatâi Summer 2019 Copyright 2019 Poomsiri Dumrongvute All Rights Reserved 1 Essays on Online Fundraising Through the Lenses of Law, Economics, and Sociology: Examples from American P2P Lending and Thai Rotating Savings and Credit Association By Poomsiri Dumrongvute Doctor of the Science of Law University of California, Berkeley Professor Prasad Krishnamurthy, Chair In recent years, online lending has become a new method of financing that allows people to lend and borrow anywhere anytime. Yet, due to its complex and wide-ranging operation, the online lending phenomena has become one of the most buzzing regulatory concerns. Online lending not only challenges incumbent loan providers like commercial banks by providing loans to unserved borrowers at attractive rates, it also presents unprecedented investment opportunities for individual lenders who are often referred to as ‘peer’ or ‘crowd’ to lend out their money commercially. In this dissertation, I explore how two different online lending methods help individual lenders who often lack financial sophistication to make safe investment and how laws and regulations may affect online lending businesses and their consumers. This dissertation includes two essays that examine two examples of online lending practices: peer-to-peer (P2P) lending in the United States and online rotating savings and credit association (ROSCA) in Thailand. The first essay argues P2P lending platforms originally endorsed interpersonal relationships in lending and adopted many peer-to-peer features, such as social networks, personal profiles and group affiliations because interpersonal relationships are valuable and imperative for individual lenders and borrowers on P2P lending platforms. Nevertheless, the laws and regulations on P2P lending in the United States have caused P2P lending platforms to relinquish their commitments to utilize interpersonal relationships. The disappearance of interpersonal relationship on P2P lending platforms results in worse economic and sociological outcomes for individual lenders. The second essay argues that interpersonal relationship is paramount to the success of ROSCAs in Thailand. Traditionally, ROSCA participants rely on their interpersonal relationships to lend and borrow from each other. Recently, an online form of ROSCAs has emerged and spread. Online ROSCAs allow strangers, who have no interpersonal relationship to easily create a virtual ROSCA. Such a risk alarms the financial regulators, lawmakers, and the public. Nevertheless, the current regulatory landscape on ROSCAs have also been developed based on a 2 long concern of frauds created by informal fundraising methods. While the current regulatory regime aims to ban and restrict ROSCAs which are operate beyond a local and personal level, the regulations effectively deem the whole category of online ROSCAs illegal and drove them to operate outside to the formal financial system. Both P2P lending in the United States and ROSCAs in Thailand utilize interpersonal relationships among parties of lending transaction to address four fundamental concerns in lending: uncertainty, information asymmetry, interpersonal trust, and institutional trust. From an economic perspective, Ronald Coase’s proposition suggests that personal relationships may help reduce uncertainty and information asymmetry in economic transactions including lending. From a sociological perspective, Francis Fukuyama and Linda Molm acknowledge the importance of interpersonal trust and institutional trust within financial exchanges. Interpersonal relationships among actors of a financial transaction can build and maintain interpersonal trust and institutional trust. This dissertation also applies both the economic and sociological perspectives to understand how laws and regulations might affect P2P lending platforms, and traditional and online ROSCAs. The studies of P2P lending platforms and online ROSCAs exemplify how the current laws and regulations which were developed based on more traditional financial methods can shift new financial services, particularly online lending, into a worse position. i Table of Contents Essay I ............................................................................................................................................ 1 I. Introducing P2P Lending ...................................................................................................... 2 A. The Dawn of P2P Lending ............................................................................................................ 3 B. The Basic Operation of P2P Lending ........................................................................................... 4 1. Borrowing ....................................................................................................................................................5 2. Lending ........................................................................................................................................................6 3. Funding a Loan ............................................................................................................................................8 4. Loan Servicing .............................................................................................................................................8 5. Delinquency, Default, Collection, and Recovery ........................................................................................9 6. Secondary Market for Platform Notes .......................................................................................................10 II. Interpersonal Relationships in P2P lending ................................................................... 10 A. Online relationships: The Basis for P2P lending ...................................................................... 11 B. Peer-to-peer Features .................................................................................................................. 11 1. Social Networks .........................................................................................................................................12 2. Personal Profiles ........................................................................................................................................12 3. Group Affiliations ......................................................................................................................................13 C. Interpersonal Relationships and the Fundamental Concerns of P2P Lending ...................... 14 1. The Economic Perspective ........................................................................................................................14 2. The Sociological Perspective .....................................................................................................................19 III. Regulatory Influences and the Development of P2P Lending Industry ........................ 24 A. The First Wave of Regulatory Hurdles ...................................................................................... 25 B. Securities Regulation ................................................................................................................... 27 1. The Securities Act of 1933 ........................................................................................................................29 2. Registration of Platform Notes ..................................................................................................................29 3. Private Offerings of Platform Notes ..........................................................................................................31 C. Banking Regulation ..................................................................................................................... 33 1. Usury Laws ................................................................................................................................................33 2. State Licensing Requirements ...................................................................................................................34 3. The OCC’s Fintech Charter .......................................................................................................................34 D. P2P Lending Adapting to the Current Regulatory Landscape ............................................... 36 1. Abandoning Peer-to-peer feature ...............................................................................................................36 2. Adopting the Borrower Payment Dependent Note Model ........................................................................37 3. Relying on Shelf Registration ....................................................................................................................38 4. Charging Uniform Interest Rates Nationally .............................................................................................39 5. Commoditization of Platform Loans .........................................................................................................40
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