July 2023 in Brief: Bankruptcy & Finance

What You Need to Know About the New 2023 UCC Forms

By Paul Hodnefield, Associate General Counsel, CSC

The first revisions to the national Uniform Commercial Code (UCC) forms in more than twelve years became available on July 1, 2023. In 2021, the International Association of Commercial Administrators (IACA), the professional association for state-level filing offices, formed a working group consisting of several filing officers, service providers, and other stakeholders to review and update the existing forms set forth in the official text of UCC § 9-521. While IACA cannot change statutory requirements, many states enacted non-uniform versions of § 9-521 that require filing offices to accept forms approved by IACA. Other states are free to accept IACA-approved forms by administrative rule or filing office policy. The IACA membership approved the revised forms for use after July 1, 2023, at the organization’s 2022 annual conference. This article provides a high-level overview of what has changed for those who work with UCC records.

The majority of the changes to the UCC forms were simply clarifications to the instructions, which have now been moved to the first page where filers are more likely to see them. Revisions to the “Name & Phone of Contact at Filer,” “Email Contact at Filer,” and “Send Acknowledgement To” fields clarify that those are for filing office use, not inquiries into the financing statement. The new forms now use “Submitter” rather than “Filer” in those fields. In addition, Section C now directs interested parties to “SEE BELOW FOR SECURED PARTY CONTACT INFORMATION.”

The UCC3 underwent additional, more significant changes. The new UCC3 no longer includes checkboxes for “Party Information Change” in Section 5 and “COLLATERAL CHANGE” in Section 8. IACA decided to eliminate these checkboxes as redundant to the other information boxes in those sections. In addition, checkboxes were added to Section 14 of the UCC3AD Addendum form to indicate the type of information to be included, whether it is related to collateral, or other information.

All the UCC forms have a new revision date of 7/1/2023. Some state-level filing offices are accepting only the new forms after 8/1/2023 (Arizona, Florida, Georgia, Idaho, Illinois, Texas, and Wyoming). Other state-level filing offices will accept only the new forms on 9/1/2023 (Alaska), 9/30/2023 (Virginia), and 10/1/2023 (the District of Columbia). More states are expected to announce updated form acceptance policies, so be sure to check with the filing office before using earlier versions of the forms.

CFPB's New Small Business Data Collection Rule: Considerations for Lenders – What You Need to Know

By Marisa Sotomayor, Jamie Dycus, and George Komnenos, King & Spalding

A recent rule (12 CFR Part 1002, the “Rule”) issued in final form by the Consumer Financial Protection Bureau (the “CFPB”) earlier this year imposes a host of data collection and reporting obligations on lenders to small businesses.

The Rule, issued on March 30, 2023, implements Section 1071 (“Section 1071”) of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 1071, which amended the Equal Credit Opportunity Act, requires lenders who receive applications for small business loans to obtain, maintain, and periodically report to the CFPB certain information about applicants. Further, Section 1071 contemplates that the CFPB will, in some fashion, make public the information it receives.

Application:

The Rule’s reporting requirements apply to any financial institution with at least one hundred “covered originations” in each of the two previous calendar years. “Financial institution” is defined broadly to cover a range of entities engaging in “any financial activity”— i.e., this definition, and by extension, the Rule, could apply to both “traditional” bank lenders and alternative or direct lenders or private credit funds. Covered originations are certain types of credit extensions to “small businesses” (defined as businesses with gross revenues of no more than $5 million in the fiscal year preceding the time of determination).

Requirements:

Lenders must report to the CFPB three types of data in connection with each consumer request (importantly, whether written or oral) for a covered credit transaction, including any refinancing of existing debt:

• data generated by lenders (e.g., method of credit application and actions taken regarding such application);
• data collected from applicants or third parties (e.g., credit purpose, amount requested, and details about the applicants’ business); and
• demographic data collected from applicants, including minority-owned business status and information about principal owners.

Additionally, lenders must maintain certain policies and procedures, including:

• Procedures reasonably designed to obtain a response to each request for applicant-provided demographic and other data.
• Methods to recognize and address “indicia of potential discouragement”— i.e., practices that might cause applicants to decline to provide requested information. Note the CFPB issued a statement that it will “use its enforcement and supervisory authorities to focus on covered lenders’ compliance with” this requirement.
• A “firewall” so that, with certain exceptions, persons making credit and other relevant determinations regarding a covered application by a small business do not have access to sensitive information provided by applicants pursuant to the Rule.

For more information, see the forthcoming full-length article that this piece is excerpted from.