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This opinion was issued in the second quarter of 1998.
It has been the consistent position of the Division of Banks that the lending of money, in and of itself, does not constitute a banking business such that the provisions of Mass. Gen. Laws chapter 167, section 37 would be triggered. In addition, the provisions of Mass. Gen. Laws chapters 140 and 255E apply only to consumer lending, not to commercial lending. Consequently, there are no licensing statutes within the jurisdiction of the Division of Banks for commercial loan transactions. An out-of-state corporation intending only to make commercial loans in Massachusetts, therefore, need not obtain any certificate or license from the Division. Out-of-state entities, though, intending to conduct business in Massachusetts must register as a foreign corporation with the Secretary of State. In addition, any non-licensed person or entity intending to loan money within the Commonwealth should know of the criminal usury statute, found at Mass. Gen. Laws chapter 271, which prohibits the charging of over twenty per cent per annum for interest and expenses on loans of money or other property, section 49.