I. Legal Constraints in the Private Placement Stock-Secured Loan Planning
Our business offers loans collateralized by free-trading stock. It operates under the margin loan provisions of FRB Regulation U of the Banking Code:
Regulation U sets out certain requirements for lenders, other than securities brokers and dealers, who extend credit secured by margin stock. Margin stock includes any equity security registered on a national securities exchange, such as the New York Stock Exchange or the American Stock Exchange; any over-the-counter (OTC) security trading in the Nasdaq Stock Market’s National Market; any debt security convertible into a margin stock; and most mutual funds. The regulation covers entities that are not brokers or dealers, including commercial banks, savings and loan associations, federal savings banks, credit unions, production credit associations, insurance companies, and companies that have employee stock option plans.
My company, founded back in 1999, operates under Reg U, providing a non-purpose credit loan against marginable stock. This regulation allows us to operate provided that the borrower does not use the proceeds for the purchase of any marginable securities.
In recent years there have been cases of stock loan operators playing fast and loose with the law, making claims that were not justified or allowed. The Internal Revenue Service stepped in not long ago to put an end to stock loan firms touting their loans as “tax exempt”, for example. These loans are excellent for many uses, but certainly not for avoidance of taxes.
When strategizing for a stock-secured loan company, we must look out not just for the obvious compliance requirements but also for those that might be inadvertently crossed. Originally, permitted brokers to take our loans “on the road” to market them. We found, however, in their zeal to close the loan, that statements were being made that were not true, and so we were forced to close those avenues down, except for foreign transactions where language was a barrier. Control over broker agents is a serious issue in a relatively litigious industry like ours.
This required then a serious system of lead developments. Since our industry is a “people” industry, requiring face-to-face discussion of our stock loan product, how it works, and what its benefits are, we put those duties in our HQ, and turned our focus to lead development through selected partnerships. Such partnerships present far less legal liability, but demand less from the agent.
II. Environmental Constraints on a Stock-Secured Loan Business
Thanks largely to a number of fly-by-night “stock loan” operators with little more than a website, the stock loan industry has in recent years in some places come to resemble the cheesy and cheap aspects of the mortgage lending industry. particularly the sub-prime mortgage industry. Individuals who with get-rich-quick visions dancing in their heads put up websites with URLS like “real stock loan” or “stock holding loan” or “capital asset loan” with no loan to speak of put up hyperbole-filled nonsense that includes blessings from government agencies (“SEC, FRB, UCC compliant!” screams one) or fake testimonials (“Best stock loan I ever had. -B. Smith”) says on pay-per-click operator. And these ARE fly-by-night operators. They have no experience. They have no programs. They see their job as to lure their victims in the way a spider lures in a moth, by whatever means or whatever lies are necessary, before spinning them off to a real lender.
In this environment, my company has had to face down the polluting effects of the stock-lender-“wannabees” who know very little about their product and inadvertently create an atmosphere of suspicion in an industry that shouldn’t have to deal with that. We combat these environmental factors through our “Borrower Beware” page and through personal explanations of how these sub-par operations function. “I put ‘stock loan’ in Google and they came up on top” one of them said about one firm. We point out that all they had to do was pay for the keyword. Google makes no investigation into the quality of the company, its legal background, the legitimacy of its products. It simply allows the individual to buy space so they can appear as if they are a top ranking URL — when in fact, they do not appear ANYWHERE in the natural rankings!
Only companies that appear high in natural rankings can be said to be truly legitimate. This is for several reasons. One is that only sites with high “trust rank” — the ones that have been listed in Google with no problems for a long time — are given top ten positioning. The very best of them appear at the top of the natural rankings. Illegitimate companies, or companies that are new, do not appear high in the natural Google rankings and therefore must buy their rankings on their own.
We work hard to consolidate brokers in the industry. The greediest, most foolhardy among them are often shut down through a combination of lawsuits or state/federal disciplinary action, but many do still exist thanks to the deceptive statements and bought pay-per-click ads on Google. We try to “out” such sites by bringing them to the attention of regulators, or offer to bring them “into the fold” with us, where they are required to follow very strict compliance guidelines. These efforts, we hope, will serve to reduce the “I want to be a stock lender” type organizations.
Looking up ahead, it is important to hold the strongest funding systems with the best organization and track record because there are two parts to the private placement stock loan business: the “hub” – the center where all deals flow in and information and documents flow out; and the “spokes” – – the funders who feed quality stock loan funding management into the hub. We operate as the hub as it were, with the very most experienced stock loan operations feeding the system. Small-time brokers or funders with no history cannot succeed in this marketspace without either joining the hub as a funder, or becoming a part of the hub’s lead development network as a broker. Either way, they must adhere to strict legal compliance, both federal and state.
In this way, my firm works to both mold the environment, and carry out the self-regulation that the regulatory agencies want the stock loan industry to undertake. We support law enforcement and securities regulatory actions, to the extent they apply, in our industry and where they don’t exist, we seek to implement common sense policies that help protect our borrowers.
Education: The Key Function to a Successful Stock Loan
Finally there is the core matter of education. Our stock loan product is by its nature unusual to many people used to mortgages, online banking, and E-trade-type investing. One of our key goals at to more effectively and personally convey just what our stock loan program entails. We must deal both with law and the environment. We must make it clear that we aren’t some outfit with no credentials. We must show that the process is secure, and compliant with applicable regulation. We must make sure that they understand the benefits of of our stock loan financing as opposed to a conventional sale or holding their shares, yet do so with out encouraging any buy or sell activity. We must open the possibility of more flexibility tax-wise, without making any specific statements on how that might apply to their case as we guide them to their tax attorney or CPA. Most of all, we must lift the comfort level of our clients, making it clear that we will not abandon them at any point.
From a strategic perspective, a private placement stock-secured loan company must take education many steps beyond the typical salesman’s view of “education”. A solid vision of the future cannot be had without working with the normal anxiety that comes from proposing to move one’s stocks into a completely new account. We must work to show that the account is safe, that the precedent is there, that they get a track record of solid compliance going back many years.
That means that a good company would need to stock up on intelligent, people-oriented staff and the same for lead generators. This is a people product, and and a people business. One cannot hide behind the glare of their computer screen and expect to win in this market. Only by looking a prospective client in the eye, answering his questions with authority, and understanding the their needs can a stock loan conclusion take place. Those who know how to educate make the best stock loan purveyors. Ex-teachers are ideal, in fact.
A company in the stock-ecue must constantly keep an eye on the law and regulation; the environment created by amateur “brokers” who muddle the industry and must be battled or made compliant; and the importance of education in the process of bringing loans to conclusion. This requires a strategy that remains attentive to legal and environmental change, will increasing those skills that necessary to convey and close loans. These challenges are ever more intense in times of economic downturn, when more “wannabee” stock loan operators throw up nets and unsuspecting clients fall into them. In a time when client should be trusting only long-standing firms, we must redouble our efforts to educate our market.