On December 23, 2020, then Governor Andrew Cuomo signed into law NY CLS Fin Serv §§ 801-812 (the “Disclosure Law”) with the intended purpose of “requiring certain providers that extend specific terms of commercial financing to a recipient to disclose certain information about the offer to the recipient.” Although the law was slated to take effect January 1, 2022, the New York Department of Financial Services (“DFS”) issued a guidance on December 31, 2021, stating that the “obligations do not arise until the [DFS] issues final implementing regulations and those regulations take effect.” Given the latest regulations proposed by DFS provide for a compliance date six months after publication of the Notice of Adoption in the State Register, companies have until at least the summer of 2022 to comply with the Disclosure Law.

Exceptions

First, it is important to note that the Disclosure Law includes several notable exceptions particularly relevant to our clients. Notably, the Disclosure Law does not apply to:

• Financial institutions are defined as (i) a bank, trust company, or industrial loan company doing business under a state or federal bank charter; (ii) a federal chartered savings and loan, savings bank, or credit union; (iii)a savings and loan, savings bank, or credit union organized under state law;

• A person acting in its capacity as a technology service provider to exempt entities;

• Lenders are regulated under the federal Farm Credit Act;

• Commercial financing transaction secured by real property;

• A lease as defined by UCC 2-A-103;

• Any person who makes no more than five commercial financing transactions in New York in a twelve-month period;

• A commercial financing transaction where the recipient is a car dealer, an affiliate of a car dealer, or a rental car company, or an affiliate of a rental car company.

In the event the lender falls into one of the above criteria, then the Disclosure Law is inapplicable.

Financial Transactions

Assuming the company does not fall into an exempted category, the Disclosure Law envisages four main types of financial transactions which require disclosures: Sales-based financing, Closed-end commercial financing, Open-end commercial financing, and Factoring transaction. Each one comes with its own individual disclosure requirements.

Sales-Based Financing

Sales-based financing under the Disclosure Law is defined as a transaction that is repaid by the recipient to the provider, over time, as a percentage of sales or revenue, in which the payment amount may increase or decrease according to the volume of sales made or revenue received by the recipient. This also includes a true-up mechanism where the financing is repaid as a fixed payment but provides for a reconciliation process that adjusts the payment to an amount that is a percentage of sales or revenue.

For Sales-based financing, at the time a provider extends an offer, the provider must disclose:

• Total amount of the commercial financing, and the disbursement amount, if different from the financing amount, after any fees deducted or withheld at disbursement;

• The finance charge;

• The APR based on the estimated term of repayment and projected periodic payment amounts as defined in the law;

• The total repayment amount (ie disbursement amount plus finance charges);

• The estimated term which is the period of time required for the periodic payments;

• The payment amounts, based on projected sales volumes. If payments are fixed, then payment amounts and frequency, and if other than monthly, the amount of the average projected payments per month. If payments are variable, a payment schedule or description of the method used to calculate the amounts and frequency of payments and the amount of average projected payments per month;

• A description of al other potential fees and charges not included in the finance charge (ie draw fees, late payments fees, returned payment fees, etc.);

• If the recipient elects to pay off or refinance: (i) whether the recipient would be required to pay any financing charges, and if so, disclose the percentage of any unpaid portion of the finance charge and maximum dollar amount the recipient could be required to pay, and (ii) whether the recipient is required to pay fees not already included in the finance charge; and

• A description of collateral requirements or security interests, if any.

Closed-End Commercial Financing

Closed-end commercial financing under the Disclosure Law is defined as a closed-end extension of credit, secured or unsecured, including equipment financing that does not meet the definition of a lease under section 2-A-103 of the uniform commercial code, the proceeds of which the recipient does not intend to use primarily for personal, family or household purposes. This also includes financing with an established principal amount and duration.

For Closed-end commercial financing, at the time a provider extends an offer, the provider must disclose:

• The total amount of the commercial financing, and the disbursement amount, if different from the financing amount, after any fees are deducted;

• The finance charge;

• The APR expressed as a yearly rate inclusive of fees and finance charges that cannot be avoided;

• The total repayment amount (i.e. disbursement amount plus finance charge);

• The term of the financing;

• The payment amounts: (i) if fixed, then the payment amounts and frequency, and if the term is longer than one month, the average monthly payment amount; or (ii) if variable, then a full payment schedule or a description of the method used to calculate the amounts and frequency of payments, and if the term is longer than one month, the estimated average monthly payment amount;

• A description of all other potential fees and charges that can be avoided by the recipient (i.e. late payment fees, returned payment fees, etc.)

• If the recipient pays off or refinances the loan: (i) whether the recipient would be required to additional finance charges and if so, disclose the percentage of any unpaid portion of the finance charge and maximum dollar amount the recipient could be required to pay; and

• A Description of the collateral requirements or security interest.

Open-End Commercial Financing

Open-end commercial financing under the Disclosure Law is defined as an agreement for one or more extensions of open-end credit, secured or unsecured, the proceeds of which the recipient does not intend to use primarily for personal, family or household purposes. This also includes credit extended by a provider under a plan in which: (i) the provider reasonably contemplates repeated transactions; (ii) the provider may impose a finance charge from time to time on an outstanding unpaid balance; and (iii) the amount of credit that may be extended to the recipient during the term of the plan (up to any limit set by the provider) is generally made available to the extent that any outstanding balance is repaid.

For Open-end commercial financing, at the time a provider extends an offer, the provider must disclose:

• The maximum amount of credit available and the amount scheduled to be drawn by recipient at the time the offer is extended;

• The finance charge;

• The APR expressed as a yearly rate inclusive of fees and finance charges that cannot be avoided;

• The total repayment amount (i.e. draw amount less any fees deducted or withheld, plus the finance charge). Total repayment amount shall assume a maximum draw amount held for the duration of the term;

• The term of the plan or the period over which a draw is amortized;

• The payment frequency and amounts based on the assumptions used for calculating the APR and if payment frequency is other than monthly, the amount of the average projected monthly payments per month. If the payment amount is variable, provider is to include a payment schedule or description of the method used to calculate the amounts and frequency of payments, and the estimated average monthly payment amount;

• A description of all other potential fees that can be avoided (i.e. draw fees, late payments fees, returned payment fees, etc.);

• If the recipient pays off or refinances the loan: (i) whether the recipient would be required to additional finance charges and if so, disclose the percentage of any unpaid portion of the finance charge and maximum dollar amount the recipient could be required to pay; and

• A description of the collateral requirements or security interests.

Factoring Transaction

A Factoring transaction under the Disclosure Law is defined as an accounts receivable purchase transaction that includes an agreement to purchase, transfer, or sell a legally enforceable claim for payment held by a recipient for goods the recipient has supplied or services the recipient has rendered that have been ordered but for which payment has not yet been made.

For Factoring transactions, at the time a provider extends an offer, the provide must disclose:

• The amount of the receivables purchase price paid to the recipient and, if different from the purchase price, the amount disbursed to the recipient after fees are deducted;

• The finance charge;

• The APR calculated as a “single advance, single payment transaction” and pursuant to the terms of the statute;

• The total payment amount (i.e. purchase amount plus finance charge);

• A description of all other potential fees and charges that can be avoided by the recipient; and

• A description of the receivables purchased and any additional collateral requirements or security interests.

Other Forms of Financing

Although the Disclosure Law contemplates the above four types of transactions, it also includes a section that permits the superintendent of the DFS, in his or her discretion, to require disclosure by a provider offering commercial financing which does not fall into one of the above four categories.

In the event the superintendent requires disclosure for such other transactions, the provider must disclose at the time an offer is made:

• The total amount of the financing and disbursement amount if different from the financing amount;

• The finance charge;

• The APR;

• The total repayment amount (i.e. disbursement amount plus finance charge);

• The term of the financing;

• The payment amounts: (i) for fixed payments, the payment amounts and frequency along with the average monthly payment amount; or (ii) for variable payments, a payment schedule or description of the methods used to calculate the amounts and frequency of payments along with an estimated average monthly payment amount;

• A description of all other fees that can be avoided (i.e. late payments fees and returned payment fees);

• In the event of a payoff or refinance: (i) whether the recipient would be required to pay any additional finance charges and if so, disclosure of the percentage of any unpaid portion of the finance charge and maximum dollar amount the recipient could be required to pay; and (ii) whether the recipient would be required to pay additional fees not already included in the finance charge; and

• A description of collateral requirements or security interest.

Refinancing

If a provider is considering a transaction that requires the recipient to pay off existing commercial financing from the same provider, then the provider must disclose:

• The amount of the new financing that is used to pay off the existing financing. For deals involving a fixed repayment amount, the prepayment charge equals the original finance charge multiplied by the amount of the renewal used to pay off existing financing as a percentage of the total repayment amount, minus any portion of the total repayment amount forgiven by the provider at the time of prepayment. If this amount is more than zero, this amount will be the answer to:

  • “Does the renewal financing include any amount that is used to pay unpaid finance charge or fees, also known as double dipping? Yes, {enter amount}. If the amount is zero, the answer would be No.”;

• If the disbursement amount is to be reduced to pay an outstanding balance, then the actual dollar amount by which the disbursement will be reduced.

Signature Requirements

Providers are required to obtain recipients' signatures (which can be electronic) on all disclosures before authorizing the proceeding of a loan application.

Penalties

Upon a finding by the superintendent of DFS of a violation of the Disclosure Law, the offending company will be penalized Two Thousand ($2,000) Dollars for each violation or Ten Thousand ($10,000) Dollars for each violation in the even the violation was “willful”. If the superintendent of DFS finds a provider knowingly violation of the Disclosure Law, it can also impose restitution payments or a permanent or preliminary injunction on behalf of a recipient affected by the violation.