New Jersey Moves to Regulate Small Business Loan Disclosures and Brokers

A committee within the New Jersey State Senate convened today at 1:30pm to discuss S2262, a new small business loan disclosure bill. Similar to SB1235 in California, this bill would require all of the following on small business loan contracts less than $100,000:

• The APR (This was removed during the committee hearing)
• The annualized interest rate
• The finance charge
• The maximum credit limit available
• The payment schedule
• A list of all broker fees and a description of the broker’s relationship with the lender and any conflicts of interest the broker may have
• These terms must be presented before a business accepts a loan

In addition, any change to the terms that would significantly affect the responsibilities or obligations of the small business concern under the loan must be noticed 45 days in advance.

During the hearing, the bill was amended to define merchant cash advances as small business loans. Kate Fisher of Hudson Cook, LLP who represented the Commercial Finance Coalition (CFC) during the hearing, strongly opposed that amendment. The CFC is a trade association representing small business lending and MCA companies.

Also testifying against it was PJ Hoffman of the Electronic Transactions Association. Other Trade groups are gearing up to oppose the bill as well, deBanked has learned.

The bill was voted through the committee and will continue to move forward.

Kate Fisher’s testimony has been transcribed below:

Senator Pou and committee members: Thank you for the opportunity to present testimony today regarding business loan disclosures.

My name is Kate Fisher and I am here today on behalf of the Commercial Finance Coalition, a group of responsible finance companies that provide capital to small and medium-sized businesses through innovative methods. I also am an attorney who helps providers of commercial financing comply with state and federal law.

The Commercial Finance Coalition supports efforts to make business financing more transparent.

The problem is the proposed amendment would define a merchant cash advance as a loan. A merchant cash advance is not a loan.

We all know how a loan works – the lender advances money and the borrower promises to pay it back.

A merchant cash advance is a factoring transaction, in which a business sells a percentage of its future receivables at a discount.

Take for example, a pizza shop. The pizza oven breaks and the owner needs cash to replace it.

In a loan, the pizza shop borrows the money and promises to pay the money back to the lender with interest.

In a merchant cash advance, the pizza shop sells its future receivables to a merchant cash advance company. In exchange for the money to buy that pizza oven, the merchant cash advance company will take 10% of each dollar the pizza shop makes.

If the pizza shop’s sales go down, it will pay less. If the pizza shop’s sales go up, it will pay more. And if the pizza shop is damaged by a hurricane and has to close for repairs, it will pay nothing until it can reopen its doors.

This uncertainty of repayment is why a merchant cash advance is not a loan – the pizza shop in our example, only pays if it sells pizza. Courts have overwhelmingly agreed that a merchant cash advance is not a loan. To quote a recent court decision:

“Receivables purchasing is an accepted form of business transaction, and is not a loan.”

Because a merchant cash advance is not a loan, and there is no fixed payment term, requiring an APR or annual interest rate disclosure would be misleading. For a small business looking for financing, these types of disclosures would only add confusion.

I’m very optimistic that New Jersey can lead the way in providing businesses with disclosures that are helpful – and not misleading.

Thank you.