California Senate Bill 1235 was approved and filed on September 30, 2018, creating a new Division 9.5 of the California Financial Code effective on January 1, 2019. However, financing providers need not comply with new Division 9.5 (the “Commercial Disclosure Requirement”) until the effectiveness of final regulations to be adopted by the Commissioner of Business Oversight, for which no deadline has been established.1 The Department of Business Oversight (“DBO”) invited comments on the content of such regulations, which comment period closed on January 22, 2019.2 No such regulations (either in draft or final form) have been adopted to date; no guidance has been provided by the DBO as to when such regulations will be issued.
Transaction Types. The Commercial Disclosure Requirement does not apply to transactions in an amount greater than $500,000, or to transactions that are secured by real property, or to financings to a motor vehicle dealer (or affiliate thereof) or vehicle rental company.
Provider Types. The Commercial Disclosure Requirement also does not apply to banks or other depositary institutions, or to financing providers who, in a 12-month period, (x) make no more than one commercial financing transaction in California or (y) make five or fewer commercial financing transactions in California that are incidental to the financier’s business. Note that if the ultimate originating financier is a depositary institution, but the offer of financing is made or arranged by a nondepository institution that enters into a written agreement with a depository institution to arrange for the extension of commercial financing by the depository institution to a recipient via an online lending platform administered by the nondepository institution, the Commercial Disclosure Requirement does apply to the nondepository institution/platform, which is not shielded from compliance by the ultimate originating financier’s exemption.3
The Commercial Disclosure Requirement’s exemptions are not coterminous with the exemptions from the California Financing Law4 (the “CFL”), which the Commercial Disclosure Requirement joins; a transaction’s or provider’s exemption from the CFL does not ensure exemption from the Commercial Disclosure Requirement (and vice versa).
Furthermore, unlike with California’s usury law, registration under the CFL as a licensed Finance Lender does not exempt a financing provider from compliance with the Commercial Disclosure Requirement5 if the licensed Finance Lender or transaction is within the Commercial Disclosure Requirement’s stated scope. Furthermore, compliance with the Commercial Disclosure Requirement will become part of the DBO’s examination of licensed Finance Lenders.