December 6, 2021

Volume XI, Number 340

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December 03, 2021

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NYDFS Issues Proposed Rules to Implement New Commercial Financing Disclosure Law

On October 20, the New York Department of Financial Services (NYDFS) issued proposed rules under New York’s Commercial Financing Disclosure Law (CFDL) (See S5470-B, as amended by S898).  Under the CFDL, commercial financing providers will be required to give consumer-style loan disclosures to recipients at the time a specific offering of finance is extended for certain commercial transactions of $2.5 million or less.  Public comment on the proposed rules is due by December 19, 2021.

Among other things, the proposed regulation:

  • Describes how the CFDL’s $2.5 million disclosure threshold is calculated

  • Explains how providers should calculate the APR and outlines allowed tolerances

  • Outlines formatting requirements for disclosures for the types of commercial financing

  • Provides disclosure signature requirements, which may be electronic

  • Outlines requirements for commercial financings that offer multiple payment options

  • Specifies record retention requirements

  • Prescribes a process under which certain providers calculating estimated APRs will report data to the NYDFS Superintendent relating to the actual retrospective APRs of completed transactions

Putting It Into Practice:   The proposed rules borrow heavily from, but do not exactly mirror, those under the California Department of Financial Protection and Innovation’s (DFPI) proposed rules to implement its own commercial financing disclosure law (See SB1235).  The DFPI’s most recent round of modifications to its proposed rules was issued on August 9, 2021.  While any lack of uniformity between the two states’ regulations will complicate compliance for many commercial financers subject to both laws, finance companies should anticipate some changes between the New York law’s proposed and final rules.  With NYDFS’ ability to seek significant financial penalties as a consequence of not complying with the new law, it is critical that financial institutions develop policies and procedures and train employees in order to adhere to the disclosure requirements.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 298
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About this Author

Moorari Shah Bankruptcy Lawyer Sheppard Mullin Law Firm
Partner

Moorari Shah is a partner in the Finance and Bankruptcy Practice Group in the firm's Los Angeles and San Francisco offices. 

Areas of Practice

Moorari combines deep in-house and law firm experience to deliver practical, business-minded legal advice. He represents banks, fintechs, mortgage companies, auto lenders, and other nonbank institutions in transactional, licensing, regulatory compliance, and government enforcement matters covering mergers and acquisitions, consumer and commercial lending, equipment finance and leasing, and supervisory examinations,...

213-617-4171
A.J. S. Dhaliwal Bankruptcy Attorney Sheppard Mullin Washington DC
Associate

A.J. is an associate in the Finance and Bankruptcy Practice Group in the firm's Washington, D.C. office. 

A.J. has over a decade of experience helping banks, non-bank financial institutions, and other companies providing financial products and services in a wide range of matters including government enforcement actions, civil litigation, regulatory examinations, and internal investigations.

With a diversified regulatory, compliance, and enforcement background, A.J. counsels financial institutions in matters involving...

202-747-2323
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