No, Texas Did Not Ban Merchant Cash Advances

When Texas passed HB 700 last June, deBanked was among the first to point out that its most notable component was a prohibition on automatic debits of a recipient’s deposit account by a commercial sales-based financing provider unless they had a perfected first position. Some observers were quick to tell us that we had it all wrong, that MCAs had effectively been “banned” entirely and that we should have reported it that way. This was premised on a belief that perfecting a true first position on a recipient’s deposit account was a near-insurmountable obstacle (for MCAs that rely on ACHs instead of credit card splits) and thus a nuanced discussion of how to comply with the new law a moot debate.

But if the state legislature had intended to ban sales-based financing outright, it simply could have done so. Instead, it codified a framework for how to legally provide sales-based financing. It provided guidance on registration, disclosure, and oversight. And it even went as far as to say that the Finance Commission of Texas cannot “adopt a maximum annual percentage rate, finance charge, or fee for commercial sales-based financing transactions.” This was an incredible signal: No cost cap on sales-based financing.

The Texas Office of Consumer Credit Commissioner (OCCC) even held an open forum this past November to hear from impacted parties on the best way to craft and enforce the rules going forward. And so while they’re now busy promulgating those precise rules, collective minds have returned back to the original language surrounding that “certain automatic debits” are “prohibited.”

CERTAIN AUTOMATIC DEBITS PROHIBITED.
A provider or commercial sales-based financing broker may not establish a mechanism for automatically debiting a recipient’s deposit account unless the provider or broker holds a validly perfected security interest in the recipient’s account under Chapter 9, Business & Commerce Code, with a first priority against the claims of all other persons.

This language does not say that merchants cannot pay sales-based financing providers entirely. Others agree. deBanked spoke with one company, MCA Pay, which analyzed what the law says and they created a tool for merchants to pay sales-based financing providers in an orderly easy manner so that funders do not in fact have to automatically debit a recipient’s deposit account at all. Though there are some layers to how it’s done, merchants are, on their own volition, setting up a system to initiate payments to whichever funder they choose. They’re in control.

Far from theoretical, this methodology is already being used by merchants in Texas to pay sales-based financing providers, according to MCA Pay.

“We’re comfortable from a regulatory perspective, but I encourage everybody who uses this platform to run this by their counsel,” a representative said. “We’re putting the control back into the merchant’s hands.”

The two main partners at MCA Pay, Gavriel Kalfa and Moshe Klar, do not hail from within the industry, but they worked with experienced operators in the industry while building out the system. MCA Pay is not the payments provider or a law firm, they’re just the platform that loops the pieces together.

“Hopefully we’ve made a product here that’s going to allow MCA to continue in Texas compliantly for everybody,” they said.

Sean Murray is the President and Chief Editor of deBanked and the founder of the Broker Fair Conference. Connect with me on LinkedIn or follow me on twitter. You can view all future deBanked events here.