Earlier this year, the SEC re-proposed a rule to implement Section 27B of the Securities Act of 1933, a provision added by Section 621 of the Dodd-Frank Act.

The Dodd-Frank provision, intended to prohibit certain conflicts of interest in securitization transactions, is interpreted broadly by the SEC’s sweeping proposal. If not amended, these rules would threaten the viability of many common, beneficial transactions in mortgage- and asset-backed securities.

On Tuesday, June 20 from 1:00 – 2:00 p.m. EST, please join SIFMA’s Chris Killian and Mayer Brown’s Christopher Horn, Stuart Litwin and Michelle Stasny in this webinar as they discuss the proposed rule, the rule’s potential impact, the industry’s response and the issue’s trajectory.

Registration for the webinar is located here: Register for the SIFMA Webinar: SEC Re-Proposal on Conflicts of Interest in Securitization (hs-sites.com).

SIFMA Webinar: SEC Re-Proposal on Conflicts of Interest in Securitization
SIFMA Securitization Webinar 2023 Featured Speakers

Christopher Horn, Counsel, Mayer Brown LLP

Stuart Litwin, Partner, Mayer Brown LLP

Michelle Stasny, Counsel, Mayer Brown LLP

Chris Killian, Managing Director, Securitization and Corporate Credit, SIFMA

Providers of commercial financing should take note that Georgia has become the fifth US state to enact small business financing disclosure requirements since California started the trend in 2018. Georgia Senate Bill 90 was signed by Governor Brian Kemp on May 1, 2023, and takes effect January 1, 2024. The Georgia law applies to transactions of $500,000 or less, including closed and open-end loans and accounts receivable purchases, and provides some helpful exemptions for equipment financers, affiliates of depository institutions, and others. Mayer Brown’s Legal Update provides details on the law’s requirements, scope, exemptions, and penalties.

Banking organizations looking to reduce the amount of risk-based regulatory capital required to support residential mortgage loan portfolios can use synthetic securitization to convert the capital treatment of their exposures from wholesale or retail exposures to securitization exposures. In this Legal Update, we discuss how regulatory capital requirements impact banking organizations that hold portfolios of residential mortgage loans and how synthetic securitization can help mitigate the capital charge associated with these portfolios.

Read more in Mayer Brown’s Legal Update.

Welcome to the second edition of Licensing Link, a periodic publication that will keep you informed on hot topics and new developments in state licensing laws, and provide practice tips and primers on important issues related to state licensing across the spectrum of asset classes and financial services activities. We look forward to you joining us for future editions!

Continue Reading Licensing Link

In its current form, the Uniform Commercial Code (“UCC”) does little to accommodate emerging technologies such as cryptocurrencies and non-fungible tokens.  In efforts to modernize and adapt the Uniform Commercial Code to newer technologies, the Uniform Law Commission (the “ULC”) and the American Law Institute have jointly sponsored the drafting of proposed extensive amendments to the Uniform Commercial Code, particularly in respect of new Article 12 (the “UCC Amendments”).  In July 2022 the ULC adopted the UCC Amendments as a model law which is now recommended for enactment by state legislatures throughout the U.S. in its entirety or with non-uniform state-specific variations.  We note that presently preliminary versions of Article 12 have been adopted in Nebraska, New Hampshire and Iowa, and Wyoming has recently enacted the Stable Token Act.  North Dakota has adopted the UCC Amendments in their entirety.

 UCC Articles 3 and 9 govern the sale and pledge of negotiable instruments (i.e., drafts and bills of exchange).  The significance of the proposed UCC Amendments in respect of drafts and bills of exchange is that they eliminate the current UCC Article 3 requirement that such drafts/bills of exchange be in a traditional paper form and “signed” with wet ink signatures.  The is a significant and very positive change because under revised Article 3 and new Article 12, there may be no further need to produce and deliver a physical negotiable instrument.  Elimination of the requirement of a paper draft will solve long-standing problems that have significantly constrained the growth of draft/bill of exchange-based financing structures in trade finance transactions.  The current UCC requirements for paper transfer of drafts/bills of exchange signed by the seller, circulated to the buyer for signature/acceptance and then endorsed and vaulted for safe-keeping or delivered to the seller’s bank leads to cumbersome processes, delays and expense, limitations that negatively impact the financing, and purchase and sale of goods and services in the U.S. and beyond.  Replacement of physical drafts with electronic drafts has the potential to eliminate these problems and spur the rapid growth of digital drafts/bills of exchange transactions and high volume buyer-led digital drafts financing programs across the globe.  The existing Uniform Electronic Transactions Act (“UETA”) which has been implemented 49 states (excluding New York State) and the Federal ESIGN Act (“ESIGN”) and similar “electronic records-related” legislation in other countries have paved the way for the innovations reflected in revised Article 3 and new Article 12 by increasing efficiencies and stimulating the growth of commercial transactions generally.

Revised Article 3 facilitates the transformation of a physical negotiable instrument to an electronic record in tandem with new general definitions in UCC Section 1-201.  Among other changes, new Subsection 3-105(a)(2) permits an instrument to be issued by an electronic transmission of an image and information derived from the instrument by the maker and drawer, rather than by physical delivery.  As a general matter, terms that applied only to paper transactions in the UCC have been omitted entirely from the UCC Amendments or redefined to encompass electronic transactions.  For example, definitions set forth in Section 1-201 have been amended so that the defined term “sign” now encompasses electronic signatures, “record” has replaced “writing,” and “conspicuous” has been redefined to broadly encompass both paper and electronic agreements.  The first two amended terms are directly relevant to digital drafts/bills of exchange to the extent they gain traction in the marketplace as viable commercial assets.

The New Article 12 in the UCC Amendments creates a class of digital assets defined as “controllable electronic records” (“CERs”). A CER is a “record stored in an electronic medium that is susceptible to ‘control.’”  The UCC Amendments provide for a CER to be, in effect, negotiable, i.e., capable of being transferred in such a way as to cut off competing property claims (including security interests) to the CER.  The UCC Amendments also provide for a security interest in a CER to be perfected by “control” to have priority over a security interest in the CER perfected only by the filing of a financing statement.  The control test in Article 12 is intended to work with systems that satisfy the requirement of control under UETA, as well as new technologies. At a high level, Article 12 would extend the concept of “control” currently used with respect to certain other types of electronic records such as a “transferable record” under ESIGN and the UETA to the concept of “controllable electronic records” under the UCC Amendments. 

“Accounts” or “payment intangibles” (as those terms are defined in UCC Article 9) can be evidenced by a CER, creating a “controllable account” or “controllable payment intangible” if the party obligated on the account or payment intangible has agreed to pay the person in control of the CER. If control of a CER that evidences a controllable account or controllable payment intangible is transferred, the controllable account or controllable payment intangible travels with the CER, and the transferee, if a “qualifying purchaser,” benefits from the same “take-free” rule that applies to the CER. A “qualifying purchaser” is a purchaser that obtains control of a CER for value, in good faith, and without notice of a claim of a property right in the CER, analogous to the current UCC Article 3-302 definition of a “holder in due course” in respect of a purchaser of negotiable instruments.  The effect is to create what is functionally an electronic instrument even though the payment rights continue to be classified as a “controllable account” or “controllable payment intangible.”

If the terms of the account or payment intangible also provide that the account debtor will not assert claims or defenses against the transferee of the CER (as, and to the extent, permitted by UCC Section 9-403), the effect is to create the substantial electronic equivalent of a negotiable instrument.  However it is important to note that a negotiable instrument under Article 3 and a payment intangible under Article 12 that works in a functionally equivalent way, are not one and the same:  in order for an electronic form of a physical draft to meet the Article 12 requirements, the content of the traditional draft would need to be altered to replace “pay to the order of” with a buyer’s “promise to pay to the person in control of such draft” and additionally, such draft would need to state on its face that the buyer agrees not to assert claims or defenses against any transferee. 

These Article 12 CER “control” provisions are intended to address market concerns in the trade finance area that commercial law rules are currently insufficient to support widespread electronic drafts/bills of exchange programs.  In short, Article 12 gives a drafts/bills of exchange purchaser who is in control of the related CER the same type of holder-in-due-course priority achieved by such purchaser under the current version of Article 3 in respect to the possession of a physical draft/bill of exchange, that is, the right to take an interest in the record (e.g., a draft or bill of exchange) free of most competing claims, even if that competing claim has otherwise been perfected under the UCC.                  The UCC Amendments could, in theory, have a profound impact on trade finance. Nonetheless there are a number of obstacles to practical implementation.  While some banks or Fintechs may be able to gear up to meet the Article 12 control tests for CERs right away, such parties face significant practical hurdles to widespread adoption.  These technologies may go mainstream or they may not, and even if they do become the norm, the timing of when they might happen is uncertain, particularly in the wake of the recent string of scandals and bankruptcies involving crypto currencies.  Given these challenges, there is a great deal of uncertainty whether the transfer or pledge of digital assets will become routine.  Whether new Article 12 has any real practical application, at least in the short term, remains to be seen.  Moreover, new Article 12 will have limited utility as far as cross-border trade finance transactions are concerned.  If one of the parties to the transaction is outside of the U.S., it is a given that the entity is residing either in a jurisdiction that does not recognize the concept of digital assets or has a differing interpretation as to how those assets can be sold or pledged.  For example, the UNCITRAL Model Law on Electronic Transferable Records (2017) (“MLETR”) addresses many of the same issues as Articles 12 and 3 of the UCC Amendments but approaches those issues entirely differently.  If the jurisdiction of the non-U.S. counterparty has adopted MLETR, then there will likely be an inconsistency or conflicts of law in how the finance or sale of digital assets is addressed.  Also, it is not clear how quickly MLETR – or other similar laws in respect of digital assets or electronic records – will be prevalent across the globe.[1]  If the jurisdiction does not recognize the concept of digital assets, then any proposed cross-border transaction involving that jurisdiction and digital assets may have significant enforceability issues.

[1] MLETR has to date been adopted in Singapore, Bahrain and Abu Dhabi.

The US Consumer Financial Protection Bureau (CFPB) has finalized its December 2022 preliminary determination that commercial finance disclosure laws recently enacted in California, New York, Utah and Virginia are not preempted by the federal Truth in Lending Act. The CFPB’s final determination confirms for a wide range of small business financers and brokers that they are presumptively required to comply with existing (and future) state disclosure and registration obligations, absent an exemption. Read more about the CFPB’s reasoning and some key takeaways in Mayer Brown’s Legal Update.

Welcome to the first edition of Licensing Link, a new periodic publication that will keep you informed on hot topics and new developments in state licensing laws, and provide practice tips and primers on important issues related to state licensing across the spectrum of asset classes and financial services activities. We look forward to you joining us for future editions!

Continue Reading Licensing Link

In early February 2023, as part of its broader mission to support and sustain the financing of affordable single family and multifamily housing for all Americans, Ginnie Mae further refined its focus on social responsibility in the mortgage-backed security (MBS) market by launching an enhanced Low-to-Moderate Income (LMI) disclosure as part of its Ginnie Mae MBS program.  

Continue Reading Ginnie Mae Enhances LMI Disclosure, Accommodating Investor Interest in ESG

Small business financers and brokers (“providers”) active in New York are officially on notice to finalize their preparations to comply with New York’s Commercial Finance Disclosure Law (“CFDL”) by August 1, 2023, the new effective date provided in final administrative regulations just issued on February 1 by the New York Department of Financial Services (“NYDFS”). 

In addition to the new effective date, the final rules include important changes regarding the New York nexus required to trigger the CFDL, exemptions for depository institution subsidiaries, and the content of required disclosures, among others.

With the adoption of the final rules, providers of commercial financing—including closed- and open-end loans, merchant cash advances, finance leases, and factoring transactions, at minimum—should finalize their procedures to ensure that they can deliver final rule-compliant disclosures to New York recipients starting on August 1 of this year.

Read more in Mayer Brown’s Legal Update.

State-chartered banks lending to Iowa residents will want to take note of an Assurance of Discontinuance entered into in December between the State of Iowa and an out-of-state bank to settle claims that the bank charged usurious rates of interest to Iowa consumers. The settlement also highlights the Iowa Attorney General’s interpretation of the state’s opt-out from the federal Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA) — with the potential to impact loan eligibility parameters and enforcement risk for state-chartered banks and programs doing business in Iowa. Mayer Brown’s Legal Update provides further detail.