By: Sean Murray
"We're one of the good guys so of course we'll comply and include the form with our contracts." Variations of the above phrase have been oft-repeated in the last few months by participants in the commercial finance industry when queried by deBanked about California's new disclosure law. Several companies have shared that they are prepared for what's to come, but are they? The regulations go into effect on December 9th and begin a new chapter of compliance for the industry. Though one might be aware that California will require specific disclosures on commercial finance contracts (including purchases of future sales), Katherine C. Fisher, Partner at Hudson Cook, LLP, explained that the breadth of the state's law will likely require changes to a funding company's operational processes as well. Fisher told deBanked that there's not just the matter of disclosing but also the matter of what triggers a disclosure having to be made. What might otherwise be considered the normal discourse between a funding provider and a customer prior to a deal being consummated is now an area requiring close examination. "If a broker sends a text to a merchant with the offers, could it trigger this?" is one scenario she posed about the threshold for disclosure. The funding provider needs to know the answer because once the disclosure requirement is triggered, the broker needs to relay back the details of the offers made, the specific disclosures provided, and the timestamp of when this took place. All of this data then needs be stored by the funding provider to maintain compliance. And funding providers will need to be vigilant. "The funder is responsible for broker compliance," Fisher said. The entire process of who-said-what, when, and how will suddenly become a realm requiring tight control it seems. And that all comes back to the form itself, which is not all that simple either. California will require funding providers to estimate an APR on a purchase transaction using one of two methods: the Historical Method or the Underwriting Method. While the methodology selected is probably best left to qualified counsel to assist with, the likely deviation of a future estimated APR from a backwards-looking APR was a reality considered by state regulators. To bridge this gap, California requires that funding providers disclose reasonably anticipated true-up scenarios. A true-up in this instance refers to the already well-established option for a merchant to perform a monthly reconciliation of payments if the amount collected is above or below the purchased percentage specified in the contract. Though the very nature of the reconciliation is a consequence of not being able to predict the future exactly, California's law requires that funding providers disclose the dates and amounts of the true-ups that they reasonably anticipate. Such concepts and mathematics, once perhaps the subjective domain of a funding provider's in-house underwriters will soon be subject to regulatory scrutiny for total accuracy. And this just scratches the surface. The scope of this law is so unique and technical that the Hudson Cook law firm spent a considerable amount of time preparing a guide on this very subject. deBanked saw some of the pages of this guide during a call. Fisher, meanwhile, insisted that compliance in California is different than compliance with the law recently enacted in Virginia and that if funding providers wait until December to begin preparing, it will probably be too late to be ready in time. "This is more than just a form," Fisher said. "You need to spread the word about it."