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CALIFORNIA CORPORATE & SECURITIES LAW

Does “Valid When Made” Apply To Evidences Of Indebtedness Qualified Under The CSL?

Many have expressed disappointment that the U.S. Supreme Court denied certiorari in Midland Funding, LLC v. Madden.  The question presented by the petitioners in the case was as follows:

Whether the National Bank Act, which preempts state usury laws regulating the interest a national bank may charge on a loan, continues to have preemptive effect after the national bank has sold or otherwise assigned the loan to another entity.

The Second Circuit in a decision reported at 786 F.3d 246 held that the National Bank Act ceased to have preemptive effect after a national bank had assigned the loan to another entity.  The implications of this holding for secondary debt market and purchasers of loans are obvious.

California’s usury law is can be found in both its constitution (Art. XV) and in uncodified initiative measures.  The California Constitution grants the legislature the authority to exempt any class of persons from the constitutional limitations on interest rates.  As discussed in “The “Usury Permit” – Fact Or Fiction?“, the California Corporate Securities Law exempts an evidence of indebtedness when it is issued pursuant to qualification as either an issuer transaction or a recapitalization or reorganization transaction.  Cal. Corp. Code § 25116.  Notably the statute also expressly exempts “the purchasers or holders” of any such evidences of indebtedness.  Note that exemption is conditioned upon compliance by the issuer and purchaser with any conditions upon qualification imposed by the Commissioner of Business Oversight.  Because of the concern that some debt instruments may be determined not to be securities (a subject for another day), the statute provides that the exemption applies regardless of whether a court later determines the evidence of indebtedness to be a security.

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