Loan/Lease Statute Up-Date This is a summary and should not be viewed as a legal interpretation or containing all the requirements. Consult an attorney with leasing experience is highly recommended. Most states exempt banks. This is commercial business only. Whether some states mix consumer and commercial loans today is not know, although current court cases are recognizing personal guarantees and proprietorships to fall under some consumer guidelines. Arizona: All “advance fee loan brokers” must register annually with the state. Arizona Revised Statutes, sec. 06-1303-1310 (1996) Alabama: A simple business, vocational, occupation license is required. Alaska: Alaska Small Loan act does not distinguish between consumer and commercial loans, one of the reasons many leasing companies do not do business in this state. Requires a license on transactions under $25,000. Arizona: Requires a state license not difficult to obtain to those who have applied to be on a Leasing News list. Arkansas: All brokers of “a loan of money, a credit card or a line of credit” may not assess or collect an advance fee. In addition, all brokers must register with the Securities Commissioner, post a surety bond of $25.000 and have a net worth of $25,000. Arkansas Code Annotate sec. 23-39-401 (1995) California: No person shall engage in the business of a finance lender or broker without obtaining a license from the Commissioner, unless a bank or conducting true “operating” leases. California Financial Code, Division 9, Chapters 1 and 3 Connecticut: Brokers of “unsecured loans” may not assess or collect an advance fee. Connecticut General Statues, sec. 369-616 (1997) A license to make small loans of under $15,000 is required. This is aimed at “retail buyers” and whether a capital lease or commercial entity is defined is not known at this time. Delaware: License required for commercial lessors for “finance or small loan agencies.” Florida: Brokers of a “loan of money, a credit card, line of credit or related guarantee, enhancement or collateral of any nature” may not assess or collect an advance fee. Florida Statues, Chapter 687.14 (1992) Georgia: A broker of “loans of money, a credit card, a line of credit or related guarantee, enhancement or collateral of any kind or nature” may not assess or collect an advance fee unless such fee is for “actual services necessary to apply for the loan.” Official Code of Georgia Annotated, sec. 7- 7-1 (1992) Idaho: No fee may be collected unless a loan is actually made. Idaho Code, sec. 26-2501 (1992) Illinois: Code , 815 ILCS 175/15-5.03 Under the Act, a ”loan broker” means any person who, in return for a fee from any person, promises to procure a loan for any person or assist any person in procuring a loan from any third party, or who promises to consider whether or not to make a loan to any person. 815ILCS 175/15-5- 15(a) Specifically excluded from the application of the Act, however, are (1) any bank …regulated by any service loans for the Federal National Mortgage Association… (3) any insurance producer or company authorized to do business in [Illinois], (4) any person arranging financing for the sale of the person's product, (note that this exception does not apply to any person selling someone else's product and only applies to “the” person's product, implying the exception is for the owner of the product arranging for financing), (5) any person authorized to conduct business under the Residential Mortgage License Act of 1987 and (6) any person authorized to do business in [Illinois] and regulated by the Department of Financial Institutions or the Office of Banks and Real Estate. “In the event that the Act is violated by the broker, the Secretary of State is empowered by the statute to make investigations and examinations, suspend or evoke the broker's approval, subpoena witnesses, compel the production of books and records, order depositions and obtain temporary restraining orders and injunctions against the broker. In the vent that a violate is found, the Secretary of State may impose a fine in the amount of $10,000 for each violation and the broker shall be liable to any person damaged in the amount of tactual damages plus attorneys fees. This appears as standard language on most states. Iowa: A broker of loans of “money or property” may not assess or collect an advance fee except for a “bona fide third-party fee” and a broker must obtain a bond or establish a trust account and file required documents with the Commissioner or Insurance. Iowa Code, sec. 535C (1992) Kentucky: Brokers of “a loan of money, a credit card, a line of credit or related guarantee, enhancement or collateral of any kind or nature” may not assess or collect an advance fee. Kentucky Revised Statutes Annotated, sec. 367.380 (1992) Louisiana: A broker of loans of “money or property…whether such agreement is styled as a loan, a lease or otherwise” must obtain a surety bond or establish a trust account in the amount of $25,000. A broker may not collect an advance fee but may collect an “advance expense deposit for commercial loans” only for actual expenses incurred in obtaining the loan. Louisiana Revised Statutes Annotated, sec. 9:3574 (1993); Louisiana Revised Statutes Annotated, Sec. 51:1910 (1992) Personal Property Lessor License required. Minnesota: Regulated Loans License. No person “shall engage in the business” of making loans not exceeding $100,000 without first obtaining license from Commerce Division. Violation is a misdemeanor and loan is void. This will apply to “capital leases.” Mississippi: A broker or loans of money may not assess or collect an advance fee and can be fined up to $5,000 for each violation. Mississippi Code Annotated, sec. 81-19-17 (1997) A license is required for conditional sales contracts. Missouri: A broker of loans of “money or property” may not assess or collect an advance fee. Missouri Revised Statues, sec. 367 300 (1992) Montana: A person who knowingly engages in the business of a sales finance company in Montana without a license can be punished by a fine of not more than $500 and/or imprisonment of not more than six months. Nebraska: A broker of loans of money may not assess or collect an advance fee. Nebraska Revised Statutes, sec. 45-189 (1993) Installment sales license required except for state banks and trust and loan companies regulated by Nebraska or any other state or chartered by the United States. Nevada: Requires license for each office or other place of business, considers capital lease as loan and “lending.” New Hampshire: Requires small loan license, whether applies to Capital Leasing not known. New Jersey: Brokers of “loans of money” may not assess or collect an advance fee. New Jersey Rev. Statutes, sec. 17:10B (1992) New Mexico: Currently requires Brokers/Lessors to register for Licensing under the New Mexico Mortgage loan Company or Loan Broker Act with the Financial Institutions Division of the State of New Mexico. Banks with Brick and Mortar within the State of New Mexico are exempt. Prior to licensing applicants must submit the Following: New York: Any advance payment or deposit must go into an escrow account until a transaction proceeds. License is required to make business and commercial loans less than $50,000. North Carolina: A broker of “loans of money or property…whether such agreement is styled as a loan, a lease or otherwise” must obtain a surety bond or establish a trust account in the amount of $25,000 and obtain a license. North Carolina General Statutes, sec. 66-106 (1992) Lenders who advance more than $1 million annually, in aggregate, in NC are exempt. North Dakota: Brokers may not accept an advance fee unless the broker is licensed. North Dakota Century Code, 13-04. 1-09.1 (1993) Ohio: Department of Commerce, Division of Financial Institutions (Certificate to engage in the business of a credit services organization in accordance with the provisions of Sections 4712.01 to 4712.14 of the revised code of Ohio, subject to all the provisions thereof and to the regulations of the division.) Ohio Department of Taxation requires a "Vendor's License" under provision 5739.17 of the Revised Code (...is hereby authorized to sell tangible personal property and selected services at the retail location specified below.) This also makes the lessor responsible for all taxes with penalties for not doing so. Ohio: No person shall engage in the business of lending amounts of $5,000 or less without a license. South Carolina: A broker of “a loan of money, a credit card, a line of credit or related guarantee, enhancement or collateral of any kind or nature” may not assess or collect an advance fee. (South Carolina Code Annotated, sec. 34-36-10 91992) A license is required for the “business of lending in the amounts of $7,500 or less” regarding consumers. Has won cases against finance for business involving individual guarantees. Texas: Consult an attorney familiar with Texas finance and lending laws. Vermont: Commercial lenders and sales finance companies must obtain a license. Does not apply to true leases and leases for security (finance leases.) Does apply to Equipment Finance Agreements. Here is a 2006 Equipment Leasing and Finance Association forum list.
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