Archive for 2018

Ingo Money QuickConnect Allows for Push-to-Card Payments

December 14, 2018
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Lisa McFarland
Lisa McFarland, Chief Product Officer, Ingo Money

Yesterday, Ingo Money announced the launch of Ingo Money QuickConnect, a new solution that allows companies that issue payments – including loans – to disperse funds directly to a merchant’s debit card. Ingo Money has partnered with Visa Direct to facilitate these direct payments.

This is the official announcement for a product that has been in the works for over a year. OnDeck announced its partnership with Ingo Money last October, but didn’t start using it until it was ready earlier this year, according to an OnDeck spokesperson. So far, OnDeck only uses the Ingo Money QuickConnect service to provide same-day disbursements to their line of credit customers. The spokesperson said they have seen great demand among customers for receiving money instantly.

“Ingo Money QuickConnect allowed us to get to market faster than we ever believed possible and with minimal time, cost and hassle,” said Sam Verrill, OnDeck’s Director of Product Management. “The solution has thoughtfully solved for all the pain points and hurdles to deploying a new payment solution, making it quick and easy to begin delighting customers and cutting costs with digital real time disbursements.”

Chief Product Officer for Ingo Money Lisa McFarland told deBanked that OnDeck was their first client in the lending category, and that they now have a few other lending clients, but declined to mentioned which.

“What’s exciting about Ingo Money QuickConnect is that customers can access money the minute they need it,” McFarland said. “At night, on weekends and holidays.”

The Ingo Money QuickConnect solution is also being used in other ways, including insurance companies paying claims and child support payments where the government is an intermediary. Use in payment of airlines vouchers to customers and by the IRS to people who are owed money are also being considered, according to McFarland.

“We’ve heard time and again from customers that they need to deploy a push-to-card payment solution but are intimidated by the time and effort required,” said Ingo Money CEO Drew Edwards. “Ingo Money QuickConnect removes the burden and allows a company to almost immediately begin offering real-time payments through Visa Direct, while retaining the ability to easily expand the solution later to include payments to online wallets like PayPal and Amazon or even cash out Moneygram locations.”

 

The Funder: From Office of One to Eighteen in Under a Year

December 13, 2018
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Jay AvigdorNot even a full year in business, Velocity Capital Group announced that it has secured $15 million in financing; $5 million in a series A, plus a $10 million line of credit. The entire investment comes from a family hedge fund in California, according to Jay Avigdor, Velocity’s President and CEO. Twenty-six year old Avigdor started the company out of his home in February and now employs 18 people in an office in Cedarhurst, Long Island.

Avigdor told deBanked that he started Velocity earlier this year with $50,000 of his savings, having spent nearly five years working for Pearl Capital. Already, he said that Velocity, which finances MCA deals, has funded over $20 million. Avigdor said he started at Pearl shortly after finishing college when he was about 19. (He said he graduated early thanks to credits he used from studying abroad and because he started college at 16). At Pearl, Avigdor said he wanted to get on the phones immediately. But with only two days of training, they wouldn’t let him.

“I thought ‘screw it,’” he recalled. “I only had $16.25 to my name and I wanted [the opportunity] to make money.”

So he said he found an old yellow pages phone book, brought it to the office with his phone charger and just started making calls from his own phone. Shortly thereafter, from his own cold calling, he said he closed a $250,000 MCA deal with an auto dealer in California.

“When I went back to the office the following day, they had two computers set up for me,” Avigdor said.

While Velocity funds a variety of businesses, Avigdor said they most commonly fund medical, technology and construction companies.

Avigdor said that while Velocity uses technology for efficiency, they also have a personal touch. For instance, he said they use an automated onboarding process for brokers, yet the actual underwriting and funding calls with merchants are done on the phone. At least that’s the way it works now.

“We crawl before we walk before we run,” Avigdor said.

He said that they give 10% of the net of proceeds on each file to a charity, which changes each month. Currently, it’s The Wounded Warriors.

Avigdor said tries to follow the advice of a rich, wise man he knows, who told him: “You won’t be remembered for how much gold you had, but for how many gold bars you’ve given away.”

Defunct MCA Company Tried to Escape Signed Confession of Judgment

December 13, 2018
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New York Supreme CourtWhen a Florida-based merchant cash advance company, World Global Financing (WGF), declared bankruptcy this past May, it entered into a binding settlement agreement with its largest creditor, a hedge fund known as Eaglewood.

There was a caveat.

Eaglewood required that WGF sign a Confession of Judgment (COJ) as part of the agreement that would afford Eaglewood the right to file and obtain a judgment without further litigation if WGF breached the settlement. On August 3, that’s exactly what happened. After WGF failed to make the stipulated payments to Eaglewood, the COJ was filed in the New York Supreme Court so as to obtain a nearly $6 million judgment against WGF and company founder Cyril Eskenazi.

While it can be virtually impossible to invalidate a COJ, the courthouse Clerk nonetheless refused to enter it because of alleged technical defects, one of which involved WGF’s use of an out-of-state notary to witness a New York State affidavit.

“The alleged Affidavit of Confession of Judgment upon which Eaglewood’s request for a Judgment by Confession stands like a house of cards is no affidavit at all under New York law, and cannot be used in a New York litigation,” WGF’s attorney argued.

The absurdity of the argument was not lost on Eaglewood because the notary WGF challenged on technical grounds was the notary that WGF and its counsel had themselves chosen and approved. Eaglewood called the charade of contesting the validity of one’s own affidavit signed in the presence of counsel, utterly frivolous and a fraud upon the Court.

Defects or not, the judge concurred with Eaglewood because WGF had irrevocably and unconditionally agreed to the entry of judgment if they breached the settlement agreement in the first place, which they did, rendering the alleged technical errors with the COJ itself a moot point.

The COJ was therefore deemed valid and the judge ordered the Clerk to enter the judgment.

On Nov 29, a judgment for $5,866,477 was entered against WGF and Eskenazi. The index # is 651489/2018 in the New York Supreme Court.

Subprime Lending to Increase in 2019

December 12, 2018
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credit line increaseSubprime loans are expected to increase in 2019, according to data from TransUnion. The data from a November 2018 report shows that Outstanding Unsecured US Personal Loan Balances have been increasing since 2013, and the increase was most dramatic from 2017 to 2018, jumping 18% from Q3 2017 to $132.4 billion in Q3 2018. The TransUnion data was also presented in a graph in a Quartz story today. According to a TransUnion projection, the total of unsecured personal US loan debt will grow by 20% next year, to roughly $156 billion in Q3 2019.

The last three months of 2018 will be one of the biggest quarters ever for consumer loan origination, according to Jason Laky, TransUnion’s consumer-lending business lead.

“A lot of it is being driven by non-prime and subprime originations,” Laky said.

At the Money 20/20 Conference in October, David Kimball and Ken Rees, the respective CEOs of Prosper and Elevate, were asked if they were concerned about a potential recession. Kimball said that Prosper, which provides loans to prime customers, has begun underwriting more conservatively. Meanwhile, Rees said that Elevate, which serves subprime customers, isn’t very concerned.

“Our customers are always living in a recession, so they know how to work with it,” Rees said.

The Quartz story predicts that payday lending, which competes with online subprime lenders, will also increase given that the CFPB has stopped aggressively trying to curtail these storefront businesses.    

“The CFPB leadership changed and made very clear statements to the market that they’re going to have a lighter touch on regulations, especially subprime regulation,” Laky said.

Velocity Capital Group (VCG) Secures $15 Million Series A Financing

December 11, 2018
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Velocity Capital Group

Businesses Flourish with Adequate Funding at their Fingertips

CEDARHURST, NEW YORK—DECEMBER 10,2018​–​V​elocity Capital Group recently secured another $15 million in financing. This will strengthen their ability to provide assistance to more small businesses and organizations. While the name might be new to some, Velocity Capital Group is no stranger to the business world. Servicing small businesses for over 7 years, there have been more than 15,000 clients who’ve received the financial boost they needed due to the available funding from VCG.

CEO/Principle Jay Avigdor couldn’t be happier to reach this point. Jay started the business in a small room of his home with only a laptop, and in just a short period of time has transformed VCG into a large and highly respected financial group that services organizations with speed and dedication. With an aim to merge the finance industry with technology, VCG aims to leave funding at your fingertips. To date, VCG is making strides as one of the fastest growing finance companies in the industry.

When businesses have financial demands, their situation is urgent and must be addressed immediately. Going through a lengthy process that could end up in a loss would be a waste of time, but with ​Velocity Capital Group,​ the relationship is taken seriously from the onset. With a staff of over 20 employees, VCG strives to get you what you need when you need it. A few of the industries that ​Velocity​ takes pride in assisting include:

  • Accounting & Collection Agencies
  • Construction, Machinery, Mechanics, & Manufacturing
  • Electronic & Media/Entertainment
  • Healthcare Services & Rehab Center
  • Religious Organizations
  • Restaurants & Retail
  • Technology & Wireless
  • AND MORE!

The $15 million funding access will help VCG build solid foundations and partnerships. With Velocity’s breakdown of available funding ($5mil in series A round & a $10 million line of credit), they’re able to provide more funding for more businesses. In fact, many customers have already stated that the V​CG team is “resourceful” and “always available.” Others have even said that they “love the charity aspect” of ​Velocity,​ because they give back to aiding organizations monthly. Their attention and consistency prove that they are more than just the average financial group; they’re family! Winston Churchill said it best: “From what we get, we can make a living; what we give, however, makes a life.” Velocity Capital Group​ takes pride in giving to others so they can ultimately help others make a life.

Companies and small businesses are urged to contact V​elocity Capital Group​ today and see what financial options are available. With urgency and compassion, the knowledgeable staff of Velocity​ is ready to build your business or brand. The funding is there, the foundation is there; all it takes is one step. That one step can be the greatest decision for success in business.

Velocity Capital Group is ready and able to serve you. For additional information, visit our website at​ ​www.velocitycg.com,​ send an email to info@velocitycg.com, or call 833-VCG-FUND (833-824-3863). We’re also available on social media outlets.

Cross River Bank Raises $100 Million

December 11, 2018
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Cross River Bank, which provides banking services to fintech companies, announced last week the completion of a funding round of roughly $100 million. This was comprised of a $75 million equity investment from KKR, along with capital from Andreessen Horowitz, Battery Ventures, Rabbit Capital, and funding from new investors CredEase and Lion Tree. This adds to a $28 million raise a little over two years ago.    

Cross River, which originated more than $5 billion in loans as of the end of August 2018, has developed partnerships with fintech leaders to build fully compliant and integrated products within the lending marketplace and payment processing spaces. They have about 15 lending platform partners, including  fintech clients Affirm, Best Egg, RocketLoans, Coinbase and TransferWise.

According to the announcement, this new capital will be used to allow Cross River to continue building a complete banking platform where fintech companies can leverage best-in-class banking technology coupled with compliance.

“Cross River offers solutions to fintech companies by giving them access to a full suite of banking solutions and services in a single, fully compliant and innovative platform, making it an increasingly attractive and valuable franchise in a dynamic marketplace,” said Dan Pietrzak, Member and Co-Head of Private Credit at KKR, Cross River’s leading investor.

According to its website, Cross River was named “most innovative bank” by LendIt in 2017 and 2018. Founded in 2008, the Fort Lee, NJ, business-oriented bank has more than 180 employees.  

 

MCA Participations and Securities Law: Recognizing and Managing a Looming Threat

December 11, 2018
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Reprinted with permission from: Pepper Hamilton LLP
Authors: Gregory J. Nowak and Mark T. Dabertin

Pepper Hamilton

Due to the high volume of relevant judicial decisions issued by New York courts over the past two years, the risk that enforceability of a merchant cash advance (MCA) contract1 might be successfully challenged as a disguised usurious loan has received ample attention in law firm white papers and published legal articles, including articles by Pepper Hamilton attorneys.2 Avoiding this risk of “loan re-characterization” is essential if the MCA industry is to achieve wider acceptance as a source of small business financing. But another risk—which we believe is largely unrecognized—could significantly throttle further expansion of MCA financing. This risk is that the funding structures MCA providers rely on to generate funding from third-party investors could be found to involve the issuance of unregistered securities. Unless an exception is available, that would be unlawful and could result in fines, penalties, defense costs and even rescission of the entire transaction, with the “issuer” being required to return investor capital.

Many MCA providers raise new funding by offering “participation interests” in their MCA contracts to third-party investors. These are usually structured in one of two ways. Under a “true participation,” the participant acquires the right to receive payments, and a resulting return on the participant’s investment, exclusively from the MCA provider. To this end, the participant receives no rights to enforce, nor any direct interest in, the underlying MCA contracts. Alternatively, the participation agreement may be structured so as to make each investor a pro rata “co-funder” of the underlying MCA contracts in an agreed-upon percentage (the “participation share”). Under this structure, the MCA provider’s contract with the merchant typically acknowledges the possible existence of “co-funders” in general terms, and does not require the merchant to ratify and accept named co-funders as they come into being. This add-on is usually accomplished through a novation to the MCA contract.

Under either of the above-described participation structures, the nature of the participant’s investment is purely passive, with no possibility for active involvement in the underlying MCA relationships. In fact, the participation agreement likely expressly prohibits such interference. The passive nature of a participant’s investment matters, because the presence of passivity, and the resulting reliance on the efforts of another party (i.e., the party offering the investment) to realize a profitable return, is a key factor for purposes of determining whether a security exists under the federal securities laws.

In SEC v. WJ Howey Co.,3> the U.S. Supreme Court established the following four-factor test for identifying the existence of a security: (1) an investment, (2) in a common enterprise, (3) with a reasonable expectation of profits, (4) to be derived from the entrepreneurial or managerial efforts of others. The facts of Howey concerned investments in an orange grove operation, where the investors were entirely dependent on the efforts of the orange grove manager/promoter to maintain the trees that the investor had invested in. In the case of an MCA participation structured as described above, all four Howey factors are arguably present. An investment is made with the expectation of realizing a profit. In addition, as discussed above, because that investment is passive in nature, its success hinges on the efforts of the MCA provider. Finally, at least one court has opined that the existence of common enterprise is inherent to any participation relationship.4

The Howey test, which seeks to identify the presence of an “investment contract,” is not the sole means for evaluating whether an investment constitutes a security. In Reves v. Ernst & Young, the U.S. Supreme Court recognized that the expansive definition of the term “security” under the Securities Act of 1933 and the Security Exchange Act of 1934 extends to other forms of “notes” besides investment contracts.5 In determining whether the “demand notes” at issue in Reves constituted a security, the court applied what is commonly known as the “close resemblance” test. Under this test, if the note in question bears a close resemblance to a type of note that has been judicially recognized as not involving a security, that note likewise will not be considered a security. For example, on its face, an MCA contract closely resembles “a short-term note secured by a lien on a small business or some of its assets.”6 However, in an MCA contract, the purchased future receivables provide the source of repayment of the advanced funds, as opposed to providing security for a lien.

This distinction is important. because in an MCA, the receivables do not yet exist, so there is nothing to lien. Rather, the MCA involves receivables to be created, presumably using the proceeds of the MCA to do so. Properly drafted MCAs sidestep all “note-like” characteristics, and make it clear that the MCA is a contract to purchase an asset (i.e., receivables) that are yet to be created. There is no sum certain for repayment – unlike a note, if the receivables turn out to be bad, the MCA provider has no recourse back to the merchant that created them. The receivables are not security for a loan; rather, the receivables are the property being forward purchased. MCAs are different in kind and extent from loans.

Notwithstanding the Howey test, and as noted above, it is possible to argue persuasively that an instrument that appears to be a security instead describes the terms of an individually negotiated contractual agreement. In this regard, in Marine Bank v. Weaver,7 the U.S. Supreme Court held that a contract between a bank and a married couple that called for the latter to pledge a certificate of deposit as security for a loan between the bank and an unrelated corporate borrower in exchange for the opportunity to share in the latter’s future profits did not involve a security. In doing so, the court distinguished the note in question from investments that fall within the “ordinary concept of a security. . . [which are offered] to a number of potential investors.”8 In contrast, the Court in Marine Bank found that the contested note created “a unique agreement [that was] negotiated one-on-one by the parties” and was therefore, “not a security.”9

In the absence of an applicable statutory exemption, the public offering of unregistered securities constitutes a criminal violation of the federal securities laws. Because securities can generally only be sold to the public by a registered broker-dealer, people who engage in selling such securities, as well as their related corporate actors, may be subject to monetary penalties for the resulting violations of law. An improperly structured MCA participation presents the risks that: (i) sales of participations made under the flawed structure could be declared void and subject to rescission; and (ii) both the MCA provider and its primary individual actors could be subject to criminal prosecution and resulting monetary penalties. In the remainder of this article, we discuss ways for effectively mitigating these risks.

Structuring the MCA participation so as to make each participant not merely a “co-funder” in name, but an actual party to each underlying MCA contract by means of a contract novation signed by the merchant and naming the individual participants, would arguably eliminate any risk that the structure might be deemed to involve the unlawful issuance of securities. Under this structure, each participant, at least in theory, could enforce the MCA contracts directly against the applicable merchants, without having to rely on the MCA provider. The main flaw with this option is that the MCA participation agreement necessarily prohibits such independent actions by the participant, because those actions could directly conflict with the economic interests of either or both the MCA provider or additional participants. Hence, any actual ability of the participant to be actively engaged in the underlying merchant relationships will be missing. As the number of participants increases to more than a handful, this structure – requiring as it does that the merchant ratify and accept every new participant as each participant is added, is unwieldy and becomes infeasible to administer.

One could also argue that including a requirement in the MCA participation agreements that the participant must evaluate independently the quality of each MCA contract before the purchase of the participation share precludes the existence of a common enterprise. However, unless each participant has its own series of MCAs, this distinction is unlikely to be of significance, because all participants are participating in the same MCA. Also, notwithstanding the obligation to conduct independent reviews, the MCA participant must still rely on the MCA provider to source qualified merchants. In addition, as noted above, the investor also must depend on the MCA provider’s success in collecting payments from merchants, which will determine whether a profitable return is achieved. Finally, where a pool of investors all share in the risks and benefits of a particular business enterprise (known in securities law as “horizontal commonality”), the resulting presumption of a common enterprise is extremely difficult to disprove.

In view of the above, we suggest that the best way to manage the risk that the participation structure might be viewed as involving the unauthorized issuance of securities is to embrace the substance, if not the precise letter, of the federal securities laws. Specifically, by structuring the participation in a manner that complies with the safe harbor from the requirement to register securities described in Section 506 of the SEC rules under the Securities Act of 1933. This entails: (i) only selling participations to accredited investors; (ii) describing the applicable risks (i.e., the risk factors) and potential conflicts of interest in an addendum to the participation agreement; (iii) making sure that all sales of participants are made on a one-to-one basis, with no general solicitation or marketing; and (iv) advising participants that the resale of their participation share may be subject to a one-year minimum holding period. (Of course, if the MCA pays off before the one year period and extinguishes the MCA, that is not an issue under this rule.)

We caution that the securities laws are both difficult to navigate and prone to divergent interpretations. The consequences of misinterpretation can be severe and could result in the rescission of existing participations and monetary penalties. Hence, this is not a DIY proposition.

Pepper Points

  • The risk that an MCA participation structure could be found by a regulator or court to constitute the unlawful issuance of securities is under appreciated, and has serious consequences that could throttle the availability and growth of MCA financing.

  • Although legal arguments can be made in support of the position that the most commonly used MCA participation structures do not involve the unlawful issuance of unregistered securities, none of those arguments is sufficiently persuasive to preclude the need for additional risk mitigation efforts.

  • Mitigation plans for managing the risk that a given MCA participation structure involves should incorporate complying with the substance, and the precise letter, of the federal securities laws.

The federal securities laws are difficult to navigate and prone to divergent interpretations. The consequences of misinterpretation are severe and could include the rescission of existing participations and assessments of monetary penalties, including against individual actors.

Endnotes

1 An MCA is a business financing option that involves the advance of funds to a merchant, typically to assist the merchant in managing its short-term cash flow needs, in exchange for the sale of a specified percentage of the merchant’s future receivables at a sizeable discount. It is a relatively new offshoot of “factoring,” which likewise involves the purchase and sale of receivables at a discount in exchange for an advance of funds to a business, with the primary difference being that the receivables in the case of MCA financing are not yet extant. An MCA contract might be deemed a disguised usurious loan for many reasons, including the inclusion of a set term within which the advance must be repaid in full to avoid default. The most critical factor in this regard is whether the MCA provider is looking to the purchased receivables for repayment, or to the merchant itself or its individual owner(s); e.g., in the form of a financial guarantee given by the owner(s).

2 For a broader discussion of MCA financing, and the risk of re-characterization as a usurious loan, see: https://www.pepperlaw.com/publications/recent-litigation-illustrates-why-merchant-cash-advances-are-not-loans-2017-04-20/.

3 328 U.S. 293 (1946).

4 Provident National Bank v. Frankfort Trust Co., 468 F. Supp. 448, 454 (E.D. Pa. 1979) (By its “very nature” any participation involves a common enterprise.).

5 494 U.S. 56, 64 (1990) (“The demand notes here may well not be ‘investment contracts,’ but that does not mean they are ‘notes.’ To hold that a ‘note’ is not a ‘security’ unless it meets a test designed for an entirely different variety of instrument ‘would make the Acts’ enumeration of many types of instruments superfluous’ Landreth Timber, 471 U.S. at 692, and would be inconsistent with Congress’ intent to regulate the entire body of instruments sold as investments, see supra at 60-62”.).

6 Id. at 65.

7 455 U.S. 551 (1982).

8 Id. at 552.

9 Id.at 560. In Vorrius v. Harvey, 570 F. Supp. 537, 541 (S.D.N.Y. 1983), the court followed Marine Bank in finding that a contested loan participation agreement involved an individually negotiated contract versus a security. A key factor in that case, however, was the existence of a comprehensive federal regulatory scheme apart from the federal securities laws in the form of banking laws and regulations, which made application of the former unnecessary for purposes of protecting the interest of investors. No such alternative regulatory scheme exists in the case of the MCA industry, which is generally unregulated.

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

Commercial Finance Coalition to Host Open House in NYC

December 11, 2018
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The Commercial Finance Coalition, an industry trade group, is hosting an open house for current and prospective members on December 18 in New York City. It’s at the Park Avenue Tavern from 6pm to 8pm. If you are interested in attending, please contact Mary Donohue at mdonohue@polariswdc.com.

CFC Open House