Regulation
New Jersey Tries Commercial Financing Disclosure Bill Again
October 17, 2024For the 7th year in a row the legislature in New Jersey is trying to pass a commercial financing disclosure bill. While a notable component is an APR requirement it also applies a broad warning to brokers.
A broker shall not make or use:
(1) any false or misleading representations or omit any material fact in the offer or sale of the services of a broker or engage, directly or indirectly, in any act that operates or would operate as fraud or deception upon any person in connection with the offer or sale of the services of a broker, notwithstanding the absence of reliance by the buyer; or
(2) any false or deceptive representation in its business dealings.1
The full language can be found here.
Wondering How to Comment on the Impending NY Disclosure Rules?
September 25, 2022The deadline to comment on New York’s latest iteration of its commercial financing disclosure rules is October 31st. As stated on the Department of Financial Service’s website, the agency’s official contact on the matter is George Bogdan (George.Bogdan@dfs.ny.gov). It’s the same contact as was given for the previous comment period.
Notably, the DFS has said that it has received some comments that have asked the agency to abolish the disclosure rules altogether. That won’t happen, the DFS explained, because it is required by law to enact them.
Even if there are no additional comment periods after this one, it is highly unlikely that the NY rules would go into effect this year.
New York DFS Publishes New Proposal on Commercial Financing Disclosure Law
September 15, 2022
The New York regulator in charge of rolling out the commercial financing disclosure law, published a new draft of the rules in the State Register yesterday.
In it, the New York Department of Financial Services (DFS) also gave its own assessment of the comments received from potentially covered parties.
“Some commenters are opposed to the basic purpose of the Commercial Finance Disclosure Law (“CFDL”), Financial Services Law (“FSL”) sections 801-811, and accordingly are opposed to the regulation,” DFS said. “Most commenters acknowledge the need for the rule to implement the CFDL and made comments intended to improve the regulation from their perspective.”
Thus, with all of the feedback previously received, the new proposal is out. The public now has until October 31st to provide further feedback to it.
Think The New California Disclosure Law is Just About a Disclosure Form? Think Again
September 13, 2022
“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.”
Funders Weigh in on the New Disclosure Law in Virginia
August 10, 2022
“I think there are pros and cons on this law,” said Boris Kalendarev, CEO at Specialty Capital, in regards to the recently enacted sales-based financing disclosure law in Virginia. “I’m on the pro side and I think first and foremost it allows the good funders and the good brokers in the space to operate in the right manner.”
The law technically went into effect on July 1st, shaking things up for funding providers and brokers alike, particularly through a set of uniform disclosures that are required every time a contract is put in front of a Virginia-based business.
“It holds a broker more responsible for the transaction that they’re going to complete,” said Sharmylla Siew, Senior Underwriter at Lending Valley. “It builds a deeper bond between the broker and the merchant. And it also creates a better bond between the broker and the funder.”
Echoing Siew’s perspective, Kalendarev also believes that being clear creates an honest business space for the broker, merchant, and funder.
“I think transparency is really the right way to run this business. Let’s try to make sure there’s even more transparency,” said Kalendarev.
One intent behind the law is to provide the business customer with all of the pertinent information in a digestible format. Notably, this includes the commission that a broker may be receiving from the funder.
“I do believe that it should be fully transparent on both sides to understand the transaction in full,” said Dylan J. Howell, CEO of Liquidibee. “The merchant should understand that the broker is getting compensated. And if he decides that the broker deserves an additional commission on top of what he’s getting paid from the funder, well, that’s an informed decision between the merchant and broker to come to an agreement with.”
Howell Suggested that some of what is required would be expected in other types of deals.
“If you would go out and buy a $500,000 house, you get to the closing table and you look at the bill, it says it’s $545,000, but the purchase price is 500,000, you would want a reconciliation page to show where that 45,000 of additional capital is going,” Howell said. “And it’s no different than in this transaction, in my opinion.”
Banks and credit unions were exempt from the law but some view targeted regulations like this one as a way to raise the bar and credibility of sales-based financing products in general.
“Merchants who wouldn’t have considered an MCA as a practical form of funding in the past may decide to explore this avenue knowing that the industry is being held to a higher standard of practice,” Howell said.
Siew, of Lending Valley, echoed same.
“I am actually very excited about the new regulations, and I feel that it would make a huge impact on the MCA industry,” she said.
Fintech and Transparency in Small Business Lending
July 13, 2022
“Increasing the flow of capital to American small businesses is one of this committee’s foundational goals,” said US Rep Dean Philips (D), chairman of the House Small Business Committee, on Wednesday. Phillips was presiding over a hearing on fintech and transparency in small business lending
Witnesses invited to testify on the subject included:
- Sean Salas, CEO, Camino Financial
- Joyce Klein, Senior Director, Aspen Institute
- Diane Patterson, Regional Director, Twin Cities Small Business Development Center
- John Griffin, Chair in Finance, McCombs School of Business, University of Texas
Both members of the Committee and the witnesses shared varying opinions on how to accomplish transparency. Although this is the not the first congressional hearing of its kind, the timing indicates that federal interest is piggy-backing off of similar conversations playing out in several state capitols. The hour-long video is below:
Virginia Disclosure Law Quietly Goes Into Effect
July 6, 2022
On July 1st, Virginia’s “sales-based financing” disclosure law quietly went into effect. The Delegate from Virginia that introduced it in the first place, Kathy Tran, marked the occasion by retweeting a caucus announcement that it was live. Elsewhere, it was hardly mentioned. It was even absent from the Official Code of Virginia where it was supposed to be ceremoniously entered on July 1st. The State insists that its omission is just a glitch.
“There have been significant technical difficulties during the 2022 code upload process,” reads a notice on the Virginia State Law Portal. “Due to these difficulties, the portal does not currently reflect the changes to enacted law. The Division of Legislative Automated Systems and the publisher are working diligently to resolve these issues as quickly as possible. Once the data is obtained from the publisher in the correct format, the standard quality check of the entire body of law that went into effect July 1 will be conducted.”
The law focuses primarily on disclosures. Sounds simple enough, but in the preceding weeks the draft disclosure form was met with some resistance by potentially covered parties because of how little time there was to integrate it into their systems and processes. Regardless, at least one small business funding company told deBanked off the record that ambiguous language and terms in the law had led to the decision to cease doing business in the State of Virginia, at least for now. Their focus is shifting toward compliance with the upcoming California and New York disclosure laws where the population pools are larger and the soon-to-be enacted requirements are seemingly more complex. Utah too will soon implement its own version of a disclosure law.
For commercial finance brokers, the defining elements of the Virginia law are that commissions earned will have to be disclosed to customers and that they’ll have to register their businesses with the State to even continue doing business there.
US Chamber of Commerce Hints it is Prepared for Litigation Against the CFPB
June 29, 2022
The US Chamber of Commerce is not thrilled with the CFPB’s attempt to allegedly expand its power. A June 28 letter fired off by the Chamber to CFPB Director Rohit Chopra asks that the agency rescind amendments added to its Supervision and Examination Manual. Specifically, it wants the CFPB to limit its enforcement of anti-discrimination laws to the statutory boundaries established by congress. The CFPB recently announced, however, that it would start to enforce its own self-created anti-discrimination rules and policies above and beyond what is permitted by existing law.
“The Bureau’s self-expansion of its authority will impose significant burdens on banks, financial markets, and the consumers they serve,” the Chamber writes.
CFPB Director Chopra has garnered a bit of reputation for his views. He was previously a director of the FTC and rode into the top role of the CFPB through the Biden Administration. Chopra now finds himself in the crosshairs of the US Chamber of Commerce, the “world’s largest business organization.” With more than three million members, the Chamber warned that if the agency attempts to enforce its “unlawful” powers, that it is prepared to engage in litigation.
“Instead of perpetuating an improper exercise of authority, the Bureau should respect the limits of its authority and rescind these troubling amendments,” the Chamber’s Chief Counsel wrote on “Litigation Center” letterhead. “We encourage you to follow this course. The Chamber will not hesitate to take legal action to defend businesses (and the economy that they serve) against the Bureau’s unlawful actions.”
Two versions of the letter were sent. This is a link to one of them.
