Due to the substantial variation in the regulatory landscapes of various states, both foreign and U.S. lenders making commercial and consumer loans must carefully examine state law before conducting business in a given state. The California Finance Lenders Law (“CFLL”) imposes licensing requirements on all entities seeking to make or broker[1] loans—whether consumer or commercial loans—in the State of California. Though many traditional lenders including banks and trust companies are exempt from the CFLL, many alternative lenders may not engage in lending activities without obtaining a finance lenders license from the California Department of Business Oversight (“DBO”). An entity licensed as a finance lender is subject to a regulatory regime that is in some respects less onerous than the complex requirements applicable to banks and other highly-regulated institutions. As such, obtaining a CFLL license provides non-traditional lenders—including foreign lenders—a path of entry into the booming California lending market. However, as the CFLL has begun to garner more attention from regulators, an entity engaging in any kind of lending in California should closely analyze the parameters of the CFLL to determine whether the entity is exempt from the CFLL or whether it is properly licensed and in compliance with the law’s requirements.

History of the CFLL

Since July 1, 1995, the CFLL has governed those engaged in the business of a finance lender or a finance broker, with several exceptions. Prior to the emergence of the CFLL, these lending and brokerage activities were regulated under multiple predecessor regulatory regimes—namely, the Consumer Finance Lenders Law, the Commercial Finance Lenders Law, and the Personal Property Brokers Law. The CFLL effectively brought consumer lending, commercial lending, and brokerage activities under a single legal framework. Notably, however, regulators have incorporated many provisions of these former laws into the structure of the CFLL; as such, courts have widely referenced regulatory guidance and legal precedent arising under these former regimes when approaching questions under the CFLL.[2]

Who Must Be Licensed Under the CFLL?

The CFLL generally prohibits individuals and entities from engaging in the “business of a finance lender or broker” without becoming a licensed finance lender.[3] The statute defines “finance lender” broadly to include “lending money” and “taking . . . as security for a loan . . . any contract or obligation involving the forfeiture of rights in or to personal property” so long as possession of the property is not retained by the lender, as well as taking a lien on wages.[4]

Several exemptions from the CFLL requirements are available, particularly for entities that are regulated under a different regulatory regime or by a different California regulator. For example, exemptions are available for the following types of entities when certain requirements are met:

  • U.S. banks, savings and loan associations, industrial banks, and credit unions doing business under applicable state or federal banking law;[5]
  • Trust companies;[6]
  • Broker-dealers;[7]
  • Licensed residential mortgage lenders;[8]
  • Public corporations;[9]
  • Franchisors when making loans to their franchisees;[10]
  • California-licensed real estate brokers, when making or arranging a loan secured by a lien on real property;[11]
  • Credit card issuers;[12]
  • Venture capital companies, under limited circumstances;[13] and
  • Insurance companies.[14]

A general exemption is also available for a lender making fewer than five California loans per year, provided that these loans are commercial loans that are “incidental to the business of the person relying on the exemption.”[15]

Most recently, California regulators have taken action to shrink the number of entities exempt from the CFLL, as demonstrated by a 2014 proposal by the DBO to narrow a licensing exemption for nonbank subsidiaries of banks and bank holding companies within the context of consumer lending. In a 1988 opinion under the CFLL’s predecessor statute, the Commercial Finance Lenders Law, the Commissioner held that a wholly-owned subsidiary of a national bank would be exempt from licensing requirements under the exemption applicable to “any person doing business under any law . . . of the United States . . . relating to banks.”[16] The Commissioner reasoned that, as the operating subsidiary of a national bank would be regulated by the Office of the Comptroller of the Currency, such a subsidiary constituted an entity that “does business under the laws of the United States relating to banks,” and therefore could take advantage of the exception from the Commercial Finance Lenders Law. The Commissioner of Corporations similarly extended the broad interpretation of this exemption to cover subsidiaries of federal savings banks, federally-chartered savings associations, and operating subsidiaries of bank holding companies.[17]

Pursuant to Section 1045 of the Dodd-Frank Act,[18] however, the 2014 proposal would reverse the DBO’s prior stance with respect to consumer lenders, narrowing the scope of this exemption by adding a regulation clarifying that the provision exempting an entity doing business “relating to banks” does not include a “nondepository subsidiary, affiliate or agent of a depository institution, unless that subsidiary, affiliate or agent is itself chartered as a national bank or federal savings association, or unless the lender is a nondepository operating subsidiary of a national bank or federal savings association making commercial loans.”[19] As the proposal would also limit a similar exemption in the regulatory regime applicable to mortgage lenders, the DBO has stated that this new interpretation would “promot[e] the uniform oversight of nondepository consumer lending in California” and “ensur[e] that California borrowers have a state regulator that can assist them with consumer complaints and requests for assistance.”[20] As such, while subsidiaries of state institutions and subsidiaries making only commercial loans continue to be exempt from licensing requirements, subsidiaries of federally-chartered banks and savings institutions engaging in consumer lending will be required to obtain a license if, as expected, the proposal is finalized.

How to Become a California Licensed Finance Lender

Entities that wish to—or, based on their current activities in California, must—obtain a California finance lenders license must submit an application to the DBO, as well as fulfill other requirements. The application requires information about the applicant and its proposed activities, as well as about the persons who will manage the business, and all persons and entities owning 10% or more of the applicant. A surety bond of $25,000 is required.[21] The applicant must submit financial statements, as well as a business plan outlining how the applicant will conduct its business consistent with the requirements of the CFLL. A licensed finance lender must obtain a license for each branch office through which it conducts business.[22]

Entities making or brokering loans secured by residential real property must apply for a CFLL license through the Nationwide Mortgage Licensing System, and must maintain a higher net worth than other licensed finance lenders.

The DBO has estimated the cost of obtaining a license to be $10,000 and the cost of ongoing compliance to be $8,500 per year.[23]

The Regulatory Regime Governing Licensed Finance Lenders

Once an entity has obtained a license under the CFLL, the entity may make both consumer and commercial loans and is exempt from the usury provisions of the California constitution.[24]Additionally, unlike more restrictive regimes such as the California Real Estate Law,[25] the CFLL permits the employees of a CFLL-licensed entity to work under such a license without the requirement to obtain additional licenses at the employee level. In addition, loans by licensed finance lenders are exempt from the usury provisions of the California Constitution.[26]

However, a licensed finance lender also must satisfy certain ongoing obligations, including the requirements to submit an annual report and fee to the DBO, maintain books and records, and notify DBO of any changes in its directors and officers.[27] A licensed finance lender is also subject to restrictions on advertising.[28]

Aside from these ongoing reporting and administrative requirements, licensed finance lenders are also subject to limitations on the types of activities these lenders and brokers may conduct. Consistent with its stated goal of protecting borrowers,[29] the CFLL imposes more restrictive limitations on the activities of consumer lenders and brokers than on those engaging only in commercial lending. Licensed finance lenders engaging in consumer lending activities[30] must comply with interest rate and fee restrictions,[31] and the CFLL contains several provisions emphasizing the right of the DBO to enforce such consumer loan restrictions with respect to out-of-state consumer lenders.[32]

The provisions specifically applicable to commercial loans, on the other hand, are largely permissive, and do not impose significant restrictions on commercial lending activities. For example, the commercial lending provisions of the CFLL authorize a licensed finance lender to sell promissory notes to certain “institutional investors”—including banks, trustees of funds, and corporations—with respect to both real-estate-secured loans and loans not secured by real estate without obtaining a real estate broker’s license.[33] Notably, a 2014 California District Court decision—LFG Nat. Capital LLC v. Alioto—emphasized the permissive nature of these provisions.[34] In Alioto, the court rejected an argument that, because the CFLL expressly authorizes commercial lenders to sell promissory notes to institutional investors and does not address assignments of lines of credit, the assignment of a line of credit is invalid. Accordingly, Alioto emphasizes that these provisions act to authorize the listed activities and do not restrict activities on which the statute is silent. This interpretation has been reinforced in other cases addressing the interpretation of particular CFLL provisions as well.[35] For purposes of the commercial loan provisions, a “commercial loan” means a loan with a principal of $5,000 or more for use other than for “personal, family, or household purposes;”[36] all loans under $5,000 are subject to the CFLL’s consumer loan provisions.

Action Plan

Because of the CFLL’s broad reach—covering commercial as well as consumer lenders, and foreign as well as in-state entities—all entities currently engaged in lending activities in California and all entities who seek to participate in the California lending market should closely review the statute’s requirements and restrictions. While the CFLL regulatory regime is less onerous than the requirements applicable to traditional financial institutions, the CFLL requires licensure as well as ongoing compliance activities for those lending in California.

As the CFLL casts a wider net than the lending regimes in other states, entities conducting lending activities in California should be sure to consider whether their business activities trigger obligations under its provisions. If an entity is already engaging in activities under the scope of the CFLL without a license, a sound strategy is needed for approaching the application process in a way that limits any potential consequences imposed by regulators for conducting unlicensed activities in the past. For example, an entity currently acting as a finance lender without a license may face challenges in addressing question 7(b) on the CFLL application, which asks, in relevant part, whether the applicant has “at any time violated the California Finance Lenders Law or regulations.” Entities already engaging in lending activities in California without a CFLL license should seek legal counsel in developing an action plan to assess the applicability of its provisions, including:

  • An analysis of whether your current activities fall within the scope of lending activities covered by the CFLL;
  • Consideration of whether an exemption from the CFLL licensing provisions may be available;
  • If a license is required, a strategy for approaching the application process and engaging with the DBO; and
  • Development of internal policies and procedures to ensure ongoing compliance with the CFLL.    

A U.S. or foreign entity seeking to commence lending activities in California as a licensed finance lender should also develop an action plan for approaching the licensing process and ongoing compliance with the CFLL, including:

  • An analysis of whether your proposed business activities fall within the scope of the CFLL;
  • Consideration of whether an exemption from the CFLL may be available and—if so—a comparison of the requirements and limitations of all potentially applicable regulatory regimes;
  • If a license is required, a strategy for approaching the application process and engaging with the DBO; and
  • Development of internal policies and procedures to ensure ongoing compliance with the CFLL.

In addition to requirements under state law, a foreign lender seeking to engage in commercial lending activity in the United States under the CFLL also must consider whether its proposed activities would trigger obligations under the federal laws.  These requirements may include, but not be limited to, the commercial lending company rules under the Federal Reserve Board’s Regulation K,[37] and will be of particular concern where a foreign lender seeks to locate an office or personnel within U.S. borders.