|12/30/2020||S5470B - signed, sealed, delivered|
Ep 29: S5470B - Signed, Sealed, and Delivered
At least two funding companies have told deBanked off the record that they plan on opening offices in the Miami area in the new year.
It seems that South Florida, particularly Miami, is where the small business finance industry may be moving for a fresh start, and with that potentially ditching the suit and tie for flip flops and shades in the process. The social, political, and economical elements of South Florida make it a well-suited landing spot for an industry that is looking to evolve with the shifting environment.
One catalyst to the potential industry-wide migration could be the S5470B regulations that go into effect in New York on January 1. The new law will require funding companies to navigate a complex system of disclosure to any interested small business finance prospect.
There are other benefits to Florida, of course.
Jordan Fein, CEO of Greenbox Capital, whose operated his business out of Miami since 2012, prides his choice of locale on all the factors that are seemingly pushing those in New York down south. “We do not have state and city tax, we are near water and have a better lifestyle than most companies in New York, or in other areas where it gets very cold in the winter,” he said.
Fein stressed the relaxing Miami lifestyle as the reason why he has only called South Florida home to his company. “The lifestyle here is second to none. Being near the ocean, it makes it much more enjoyable to be able to go to the beach or on a boat to relax and take a load off from the busy work week. New York and other large cities seem to add more stress from [New York’s] super-fast-paced style.”
Despite his love for Miami, Fein respects New York’s ability to churn out top tier employees in the industry. “The talent pool is still among the best,” Fein said, when asked if there were any reasons he or others would ever consider maintaining a connection with the area should an exodus occur.
Fein isn’t worried about the incoming competition should offices relocate to his area. “Location of a funding company has no bearing on competition,” he said. “We all do business over the internet and the competition of funding is dependent on new companies entering the space, not on their location.”
If it is true that the industry is moving to a fully digital competitive space, the idea of a warm weather city with great tax benefits, comparatively low costs of living, and a low-stress atmosphere may be a no-brainer when it comes to finding the funding industry a much needed new home. Not to mention, the mayor of Miami also really wants small business finance companies to relocate there.
In a taped episode of deBanked TV, Miami Mayor Francis Suarez told reporter Johny Fernandez that he really wants small business lenders and MCA companies to set up shop in his city.
Watch: Miami Mayor Francis Suarez talks with deBanked in March 2021“We definitely want to make sure that small business, merchants, and lenders are able to capitalize small businesses in our community,” he said. “Miami’s a very thriving small business community. One of the things that people have criticized us for is we don’t have those big massive companies. We’re actually really built on small businesses. So for us, having fluidity of capital, liquidity of capital, access to capital are enormous things in terms of scaling. And I think that’s one of the things that we’re seeing change now is because of technologies. We’re getting a tremendous amount of access to capital that we weren’t getting before.”
To prepare those that will be subject to it, Acting Superintendent Adrienne A. Harris released a copy of proposed regulations that will be open to comment for 60 days.
Its length, 45 pages, demonstrates the complexity that compliance will require. Anyone involved in commercial or small business financing should take the careful time to read it.
“The Department of Financial Services will then review all received comments and issue a final regulation,” the announcement says.
Now that Governor Cuomo is leaving office early, the Lieutenant Governor, Kathleen Hochul, will become his replacement. This detail is relevant given that New York’s landmark legislation (SB 5470) for the small business finance industry is slated to go into effect on January 1st.
Hochul served as Erie County Clerk and as a member of Congress. She’s also long been an advocate of small business.
While running on Cuomo’s ticket in 2018 for Lieutenant Governor, she criticized her opponent in a controversial campaign ad by saying that he couldn’t be trusted to manage the state budget because he had defaulted on a small business loan.
Last year, when the Small Business ‘Truth in the Lending’ bill came through the New York State Senate Banking Committee, Senator George M. Borrello said he and other members went to work. Their job: to write a version everyone would like, which fell apart when the bill passed in July and it was signed into law just before Christmas.
“I’m a small business owner myself, but I also come from local government, and in local government, the committee is where the work gets done,” Borrello said. “We had the opportunity to fix this in committee. By the time it got to the floor, the governor basically reversed all the things I presented that were flaws, and he signed it.”
That’s the story of how S5470B came to be in Albany. Instead of ironing out the kinks in committee, Borrello said he watched as the bill with all its problems passed over the summer. There was a process to clean it up afterwards to make it suitable for Governor Andrew Cuomo’s signature, since it’s said that even he himself had expressed reservations about the language. But then he signed the original version and all the edits were discarded.
Politics are suspected to have played a role in that.
“When the governor finds something is flawed, he usually vetoes and sends it back,” Borrello said. “It concerns me that there is an underlying political angle that has nothing to do with the Truth in Lending.”
Steve Denis, the executive director of the Small Business Finance Association, said that he doesn’t think that the signed bill that is up on the state senate website will be the final version.
“It is so poorly drafted that even companies that support the bill have liability and will be the first to get sued,” Denis said. “The SBFA will be a lot more aggressive; the legislature has a lot to work on in the next session. It has been a wake-up call, unifying the industry. We will be more aggressive to create a more favorable version.”
Denis has attested to the harm the bill will do to the SMB finance industry in New York, costing billions of dollars in fines and litigation. He pointed out that major companies like PayPal have fought against the bill, and the proponents “recognized it was not a good bill, but passed it to fix it.”
Borrello said that it is common in Albany to encounter legislation written by lawmakers who don’t understand small business owners who deal with regulation every day. Borrello and his wife worked in the hospitality business for years before going into public service. Borello said he feels business owners’ pain during the pandemic, especially in the restaurant and hotel industry.
He said the end result of this new bill when it comes into effect this July: funding and lending companies will stop providing services in New York State, directly harming the small businesses the bill claims to help.
“One of my frustrations, being on the banking committee, is that we do things that ultimately make it more difficult for people to access credit and financing in New York State,” Borrello said. “You’re talking about small businesses that are already hurting, having financial difficulties accessing lines of credit. This disclosure law passing during this pandemic is one more nail in the coffin for small business.”
The Legislature, the Governor, and the Department of Financial Services (DFS) all reportedly had issues with the bill: yet it passed. Borrello said a problem with “nonsense lawmaking” comes from competition with other states. New York compares itself with California to “prove we’re the most progressive.” Borrello also pointed out that California passed its version of a lending disclosure bill more than two years ago, and their version of the DFS still cannot find a way to calculate an APR metric for factoring or MCA.
As the bill was argued on the legislative floor, Borrello brought up the controversial “double-dipping” term that had been inserted in the language. Borrello came to the same conclusion as Denis, that there is no double-dipping term: It was just conjured up for the bill to sound scary, negative, and damaging.
“Other than talking about potato chips, I’m not sure what you’re talking about,” Borrello said. “When you haven’t defined it, in the legislature, it comes down to a political talking point and dog whistle. You enshrine a rather vague piece of jargon in the legislation, and it shows how deeply flawed it is.”
Borrello now plans to work with the Governor, DFS, and legislature to amend and change the bill. He is also fighting for a Republican banking overhaul to provide further credit access to small businesses.
“The next step now is to go back and see what needs to be fixed,” Borrello said. “Hopefully, my role now as the ranking member of the banking committee, we can have a common-sense conversation about how to actually fix it.”
DeBanked’s Top 10 most read stories of 2020 all involved the Payment Protection Program (PPP). It was by far the hottest topic in small business financial services for the year. As a result, we consolidated our most read stories into FIVE categories and this is what our readers consumed most in 2020!
The Payroll Protection Program saga boiled down to one major question early on in the pandemic: Who, if anybody, would be able to lend the money out on the government’s behalf? PPP Lender Requirements was the most read story on deBanked in 2020, followed by the world being curious to find out who was the biggest PPP lender. On April 22, deBanked was the first to spread the story that Ready Capital (Knight Capital‘s parent company) was the largest PPP lender in the US for Round 1.
2. NY’s Disclosure Bill
The biggest non-PPP story of the year was a bill passed in New York that was signed by the governor at Midnight on Christmas Eve. SB 5470, which some have dubbed “The Small Business Truth in Lending Act,” is slated to completely overhaul the non-bank small business lending market in the state. The bill was passed by the legislature in July.
It’s difficult to overstate how much of a rollercoaster it was for the stalwart fintech lender in 2020. OnDeck started the year with optimism, announcing a NASCAR sponsorship in March just as the company’s stock suddenly plummeted by 30%. By the time summer rolled around, the company was no longer engaged in non-PPP lending activities and was battling in a fight for its life with its creditors. In July, OnDeck was acquired by Enova, which led to shareholder lawsuits over the terms and disclosures tied to the deal. Somehow, by year-end, OnDeck managed to pull itself back together, thanks to its new parent company. It successfully originated $148M worth of loans in Q3.
Wow, just wow.
The impact of Covid was a close 4th on deBanked’s top read list. In March, deBanked published a writeup of How Small Business Funders [Were] Reacting, an interesting glimpse into the pandemic as it was just unfolding. At that time, attitudes ranged from confidence in being prepared to being convinced it was time to shut everything down. One notable takeaway from the commentary is that nobody surmised that the situation would persist for the entire rest of the year.
Capify CEO David Goldin made an early bold prediction, however. “I would not be surprised if we learn in the next few weeks that the President of the United States has it,” he said in an interview with deBanked in mid-March. President Trump was diagnosed with Covid-19 less than six months later on October 6th.
Three scandals were a near-tie for views in 2020 so we’re revisiting them all here.
Brendan Ross & Direct Lending Investments – Brendan Ross, the former CEO of a very popular fintech lending hedge fund, was indicted on August 11th. Federal officials including the SEC, say that Ross defrauded investors while managing more than $1 billion in assets. Ross’s “unwinding” began in 2019 when he suddenly resigned from the firm and wrongdoing was alleged.
Jonathan Braun – Jon Braun, made infamous by a Bloomberg Businessweek profile, checked into FCI Otisville earlier this year after having been sentenced the previous May for drug related offenses. Braun resurfaced in the news this summer when the FTC announced civil charges against him for alleged acts related to a company named Richmond Capital Group, LLC. The New York State Attorney General filed its own charges against Braun and affiliates at the same time.
Par Funding – A financial services firm based in Philadelphia generated major headlines this year after the SEC filed a lawsuit against the company that ultimately resulted in it being placed in receivership. A series of stunts and accidents got the SEC’s case off to a rocky start, but the likelihood of Par ever restarting its business has diminished to almost nothing.
Merrrrry Christmas. New York Governor Andrew Cuomo reportedly signed SB 5470 into law late last night, a bill that forever changes and complicates nearly all forms of small business financing in the state.
The law gives regulatory enforcement authority to New York’s Department of Financial Services, requires APR disclosures on contracts where one can’t be mathematically calculated, and mandates that customers be told if there is any “double dipping” going on. And that’s just the beginning of what it contains.
A coalition of small business capital providers fiercely opposed the language of the bill. Steve Denis, executive director of the Small Business Finance Association, wrote in an op-ed that “the lack of cogency and lazy approach to this legislation is a disservice to the hard-working entrepreneurs who continue to open their businesses while facing daily economic uncertainty.”
The bill was also opposed by fintech lenders like PayPal.
Proponents of the bill celebrated the news on social media in the early morning hours of Christmas Eve.
Ryan Metcalf at Funding Circle, a company not even based in New York that moved all of its tech jobs out of the US to the UK this summer, wrote on LinkedIn that the bill will “save New York #smallbiz between $369 million and $1.75 billion annually.” Funding Circle, as a member of the Responsible Business Lending Coalition (RBLC), was heavily engaged in the advocacy process.
Several of RBLC’s members have already ceased small business lending in the US, some permanently.
Unique circumstances also exist at an ally of the RBLC, the Innovative Lending Platform Association (ILPA), which Funding Circle is also a member of. Two out of the 11 members were acquired before the bill could even be signed, Kabbage and OnDeck.
NY State Assemblyman Ken Zebrowski and State Senator Kevin Thomas, who sponsored the bill, cheered the signing of it.
“Thanks to Governor Cuomo for signing our Small Business Truth in Lending Act,” Zebrowski tweeted. “Extremely proud to have worked with many to establish the most comprehensive small business disclosure law in the nation. With the pandemic surging on, small biz owners need these critical protections now.”
“The signing of the New York State Small Business Truth in Lending Act is a victory for New York’s small business owners,” Thomas wrote on twitter. “Thank you for signing New York’s first-ever small business lending transparency bill into law.”
“I think that the companies and organizations that support this legislation don’t fully understand what’s actually in the bill,” SBFA’s Steve Denis said to deBanked in August. “[…] They have no problem pounding the table and taking credit for its passage, but I guess they don’t realize it will subject them and the rest of the alternative finance industry to massive liability, massive fines—upwards of billions of dollars worth of fines.”
And yet Senator Thomas tweeted, “This will help a lot of small businesses trying to get back on their feet during this pandemic.”
It is unclear, of course, who they expect to provide such capital now to do this.
In response to regulatory bills in California and New York that will enforce APR disclosures on small business capital providers, the Small Business Finance Association (SBFA) funded a study by Kingsley-Kleimann to find out if APR is a good metric to use for business loans.
Steve Denis, the Executive director of the SBFA, said his group supported the study because the states should test concepts with actual small business owners before passing regulation. In the NY disclosure bill awaiting signature, Denis said there was no concept testing. Some of the companies that support the bill might not have even read what it stipulates.
“You have a group of companies that are pushing these types of disclosures, for no reason other than their own self-interest,” Denis said. “We’re fine with disclosure, we are all for transparency, but it needs to be done in a way that we believe is meaningful to small business owners.”
In qualitative testing of 24 small business owners and executives who have experience taking commercial loans, the study concluded participants did not understand what APR was. The study found that the total cost of financing model was a better way to understand and compare options for their use.
“As one participant, when asked to define APR, answered: ‘I feel like you are asking a kid, why is the sky blue?’ (Participant 3, NY).” The study concluded, “In other words, [APR] is ever-present yet also inscrutable.”
Kingsley-Kleimann is a research-based organization that studies communication and disclosure for government agencies like the FTC and private or public business. Participants were selected from Califonia and NY.
Denis said that the findings show what SMB lending companies have already known- Anual Percentage Rate is not a useful metric for short term loans. Many do not know that APR represents the annualized cost of funds for the loan term, with the fees and additional costs included.
“People don’t know what APR is; it confuses them,” Denis said. “They know it’s a metric they should use, but they don’t know why. The APR is such a marketing tool now, it’s not a valuable tool.”
The study showed most respondents thought APR was the same as an interest rate. It’s not.
Denis said using an annualized rate for shorter-term loans or SMB loans that have no ending date worsens the problems. In those cases, firms estimate an APR, and it is inaccurate.
“When you have a merchant cash advance, there’s no term,” Denis said. “So you have to estimate a term, and I mean that is just a recipe for fraud.”
Denis said that the firms supporting California SB1235 and the New York S 5470/A 10118-A disclosure bill and taking credit for writing the laws are the same companies that will suffer under the strict tolerance of an APR rule.
“The companies pushing this, the trade associations pushing it, they like to take credit for writing the bill in California and writing the bill in New York: I don’t even think they’ve read it,” Denis said. “It’s going to subject their own members to potentially millions if not hundreds of millions of dollars in potential liability [fines.]”
The SBFA is not against disclosure by any means, Denis said, but supported other avenues. The trade group believes knowing the total cost of a loan and the cost and timeline of payments will help protect and inform borrowers better than APR. Firms that support the disclosure bill are banking off the positive press, hoping to be seen as pro-consumer protections but forcing APR will make it harder to compare the actual value of loans, Denis said.
Denis is still optimistic that regulators will work with businesses affected by the incoming legislation. He said the NY legislature and governor’s office, as well as the California Department of Business Oversight, understand the problems of using APR.
“They’re receptive to these arguments, and they know what they’re doing,” Denis said. “The last thing they want to do is pass a bill that’s going to further confuse businesses, especially during a pandemic when businesses are relying on this capital to stay afloat.”
Last month, a group of fintech companies christened the Fintech Equality Coalition. Dedicated to ensuring racial equality is a right extended to everyone, the group pledges to focus on enhancing access to financial services for the underrepresented- particularly within the black community.
The coalition comes at a pivotal time for fintech, currently facing the challenges created by the 2020 pandemic.
In August, the Federal Reserve Bank of New York released a study into the distribution of PPP and how the funds affected black communities. The institution found that the number of small business owners fell by 22% from February to April- the largest drop on record. But the closure of businesses was not felt equally.
“Black businesses experienced the most acute decline, with a 41 percent drop,” The study said. “Latinx business owners fell by 32 percent, and Asian business owners dropped by 26 percent. In contrast, the number of white business owners fell by 17 percent.”
The study also showed that forty percent of Black-owned businesses are concentrated in 30 counties across the country. 19 out of 30 of these counties were the hardest hit by COVID 19 in the nation.
Unfortunately, other studies have shown that the PPP did not accurately get funds to areas hit by the virus. The National Bureau of Economic Research (NBER) published in July, found that companies more negatively affected by COVID were less likely to be approved.
This may explain why the Small Business Majority study into PPP found that while 63% of Black and Latino small business owners applied, less than two-thirds received funding.
The Fintech Equality Coaltion’s pledge is overall a promise to do more for minority communities, stating:
- Because the Black community is underserved by financial services
- Because there are Black voices and issues in our industry that should be but are not currently amplified
- Because Black employees and Black-owned businesses are underrepresented in the tech community, including at many of our companies
- Because the Black community is underrepresented in leadership roles, including at many of our companies
- Because these promises are meaningless without accountability
The coalition is a pledge to host and sponsor events like forums that feature black speakers. The pledge is also a recognition that the black community has been underserved by financial services in the past, and the signers aim to incorporate more black-owned businesses than before.
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