TL;DR version: You could have the people who want to lend you money for the real estate form an entity to loan out of but you should not be overly involved in setting it up for them. An attorney in the state where you are buying should advise them. They should keep the number of participants low.
Longer version:
The Howie test is one of many precedence to consider. To determine if something is a security, look at Reves v Ernest & Young (494 US 56 (1990). Every court starts with a rebuttable presumption that everything is a security unless it's not. Here, a Co-Op marketed an "Investment Program" of notes paid at variable interest rates on demand after a lock-out period. Co-Op went bankrupt, buyers sued. An instrument is not a security if it resembles a family of non-securities (the "family resemblance" test).
In 2020, Kirschner v. JPMorgan out of NY - a trustee sued financial institutions claiming that broadly syndicated loans were securities. The district court applied the Reves test and ruled that these kinds of loans were not securities. The 2nd Court of Appeals affirmed in 2023. US Supreme Court declined certiori (decided not to hear the case). This means the 2nd CoA ruling is good law in those states, but because SCOTUS didn't rule on it means it is not good law across the country. Other district courts may take that case into consideration, but are not bound by it.
Links:
Kirschner v. JPMorgan
2nd Circuit case
SCOTUS case
Now, keep in mind that "broadly syndicated loans" are a very different creature than a small, private debt fund. These are usually used to fund mergers, acquisitions, etc. in the $10-100s+ million in value, with 100-1000s of SOPHISTICATED or institutional investors buying fractionalized interests. Would your loans qualify? probably not on its own.
There are a few good books that cover raising capital and complying with SEC rules. They are dense reading by necessity. Securities law was one of my most demanding courses in law school for a reason.
