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Florida enacts commercial financing disclosure requirements
On June 23, the Florida governor signed HB 1353 (the “Act”), creating the Florida Commercial Financing Disclosure Law and imposing several requirements on commercial financing providers and brokers. The Act defines a “provider” as “a person who consummates more than five commercial financing transactions with a business located in [Florida] in any calendar year.” The definition “also includes a person who enters into a written agreement with a depository institution to arrange a commercial financing transaction between the depository institution and a business via an online lending platform administered by the person.” The Act clarifies, however, the “fact that a provider extends a specific offer for a commercial financing transaction on behalf of a depository institution may not be construed to mean that the provider engaged in lending or financing or originated that loan or financing.” A “commercial financing transaction” is defined broadly and means a secured or unsecured commercial loan, an account receivable purchase transaction, or a commercial open-end credit plan.
The Act establishes parameters for qualifying commercial transactions and outlines numerous exemptions, including federally insured depository institutions; transactions secured by real property, a lease, or a certain purchase money obligations; transactions of at least $50,000 where the recipient is a motor vehicle dealer or rental company (or an affiliate of such company); providers licensed as money transmitters in any state; and commercial financing transactions greater than $500,000.
Specifically, at or prior to consummation of a commercial financing transaction, a provider must (i) disclose the terms of the transaction as specified within the Act; (ii) outline the manner and frequency of the payments, including a description of the methodology used to calculate any variable payment amount and the circumstances that may cause a payment amount to vary; and (iii) disclose any costs or discounts associated with prepayment. Disclosures must be in writing and may be based on an example of a transaction that could occur under the agreement. The Act further specifies that only one disclosure is required for each commercial financing transaction. Subsequent disclosures are not required as a result of a modification, forbearance, or change to a consummated commercial financing transaction.
The Act also defined a “broker” as “a person who, for compensation or the expectation of compensation, arranges a commercial financing transaction or an offer between a third party and a business in [Florida] which would, if executed, be binding upon that third party.” The definition excludes “a provider and any individual or entity whose compensation is not based or dependent upon the terms of the specific commercial financing transaction obtained or offered.” In addition, the Act outlines prohibited conduct and establishes unique broker requirements. Specifically, a broker may not “[a]ssess, collect, or solicit an advance fee from a business to provide services as a broker” (a business may pay for actual services required to apply for a commercial financing transaction), and may not make any false or misleading representations when engaging in the offering or sale of its brokering services.
The Act explicitly prohibits a private right of action, but instead grants the Florida attorney general exclusive enforcement authority. The AG may seek fines of $500 per incident (not to exceed $20,000 for all aggregated violations). Fines will increase to $1,000 per incident (not to exceed $50,000 for all aggregated violations) for continued violations following receipt of written notice or a prior violation.
The Act takes effect on July 1.