Articles by deBanked Staff
New York’s Fourth Judicial Department Affirms Its Settled Law That MCA Agreements Are Not Usurious
November 16, 2021
New York’s Appellate Division for the Fourth Judicial Department in the Supreme Court of New York issued a landmark decision for the merchant cash advance industry on November 12th.
By affirming the original decision issued in Kennard Law P.C. DBA Kennard Law and Alfonso Kennard v High Speed Capital LLC (Index No: 805626/2020), the Appellate Division agreed that among other things that it is settled law in New York that the underlying purchase and sale of future receivables agreement at issue in the case is not a usurious loan.
On June 10, 2020, plaintiffs filed their lawsuit against the defendant, asking the Court to vacate a confession of judgment on the basis that the defendant’s underlying contract dated back on August 24, 2017 was really an unenforceable criminally usurious loan.
The defendant moved to dismiss and the judge granted the motion, holding that:
1. Plaintiffs’ claim of usury is barred by the one-year statute of limitations applicable to usury based claims.
2. Plaintiffs have failed to plead a cognizable cause of action upon which to seek relief.
3. Plaintiffs have no recoverable damages.
4. Plaintiffs’ claims are barred by documentary evidence and settled law in New York holding that the parties’ underlying agreement was not a usurious loan.
Plaintiffs appealed, hoping that the Fourth Department would be persuaded by their arguments that the agreement was usurious. It wasn’t. Instead the Appellate Division unmistakably and unanimously affirmed the original judgment.
The decision demonstrates that there is consensus across judicial departments. Kennard in the Fourth Department (Western New York) is similar to Champion Auto Sales, LLC et al. v Pearl Beta Funding, LLC in the First Department (Manhattan and the Bronx) circa 2018.
Coincidentally, the attorney representing the losing parties, Amos Weinberg, is the same in both landmark cases.
The attorney representing High Speed Capital was Christopher Murray of Stein Adler Dabah & Zelkowitz, LLP.
Marcus By Goldman Sachs Will Become Goldman Sachs Marcus
November 12, 2021
Brace yourself for the craziest rebrand in fintech history.
Just kidding.
Marcus by Goldman Sachs is changing its name to Goldman Sachs Marcus.
:::Mind Blown:::
The news, publicized by Forbes, said that the bank now feels more confident in leading the division with its own name first after initially applying caution.
Goldman found that their customers had a strong brand affinity with the name ‘Goldman Sachs’ and wanted to “be closer to the brand,” said Stephanie Cohen, Goldman’s Global Co-Head of Consumer and Wealth Management.
The full scoop can be read at Forbes.
The Crazy Lawsuit Against Marcus Lemonis Was Dismissed
November 11, 2021The supposed bombshell lawsuit filed by Nicolas Goureau, Stephanie Menkin, and ML Fashion against Marcus Lemonis has been dismissed. Despite the sensational allegations that enabled Forbes to pen a major story, the Court found the entire lawsuit defective and dismissed it altogether on October 15.
The plaintiffs have advised the Court that they intend to try again by filing a second amended complaint. That would in fact make it their third attempt to try even getting past the opening stage of litigation.
The dismissed lawsuit had been packaged up to make headlines, opening with a monologue about it being the culmination of an “eight-month investigation” carried out with the help of a “former district attorney and a top law school professor, and a world renown psychiatrist that was spurred by the coming forward of no less than seventy (70) family businesses that have been destroyed…”
Despite all this, the judge ordered the suit “dismissed in its entirety.”
Upstart is Heading into Small Business Lending
November 10, 2021
Upstart, the fintech AI consumer lender originally known for its student loan platform, is heading into small business lending.
“…we believe there is an unmet need to provide fast, easy access to affordable installment loans to business owners across the country,” said Upstart CEO David Girouard during the earnings call. “Every small business is different and they operate across a crazy wide spectrum of industries.”
Girouard explained that there are “significant challenges to delivering a compelling loan product that is useful to business owners,” in which there is also reliable value for the lender itself.
“This challenge is tailor-made for Upstart,” Girouard said. “While there is no shortage of credit options to business owners, we aim to deliver the zero-latency affordable credit solution that modern businesses require. This is another product in high demand from our bank and credit union partners, and we hope to bring it to market during 2022 as well.”
Upstart is no small player. The company’s market cap is currently around $20B and it is putting out about 1.5M loans a year for a total of more than $16B.
PayPal’s Lending Increases
November 8, 2021
PayPal was mum about its working capital loan products in the latest quarterly earnings report, but clues lie in an important line item, Loans and interest receivable. The figure has historically been closely correlated with originations. PayPal reported $3.7B in those receivables at the end of Q3, up from $3.2B in Q2 and up from $2.77B at the end of Q4 2020.
The number was close to $4B at the end of 2019 so the figures represent a return to previous levels.
In the earnings call, PayPal CFO John Rainey said “growth in our short-term installment pay portfolio was the primary driver of this increase.” Rainey appeared to be referring to its Buy-Now-Pay-Later product.
Separately, PayPal announced that Venmo users should be able to pay for purchases on Amazon beginning next year.
This page has been updated to reflect the CFO’s statements that the increase was driven by short-term installment lending.
Square Loans Originated $594M in Business Funding in Q3
November 5, 2021
Square Loans, formerly known as Square Capital, originated $594M in small business funding in Q3, bringing the company to $1.6B originated YTD. Square had already been recognized among the largest small business lenders this year so far.
The Q3 figure boils down to 83,000 individual loans.
Overall, Square Loans was mentioned very little in the company’s quarterly earnings call. Company CEO Jack Dorsey said “…there’s still a lot of opportunity for us to open more of our products in more of the markets that we’re already in, such as Square Loans in more of the places that we already exist.”
The coming of Hyperinflation, a prediction made by Dorsey on Twitter just weeks prior, went completely unmentioned in Square’s official reports.
On October 22, he tweeted, “Hyperinflation is going to change everything. It’s happening.”
LendingClub Finding It Pays to be a Bank
November 1, 2021
At $48.75, LendingClub stock recently surpassed the highest valuation it has had since January 2016.
Successfully becoming a bank earlier this year and dropping its peer-to-peer lending business for good, the company is showing the benefit of that by recording a net income of $27.2M in Q3.
And its loan business is still strong. LendingClub originated $3.1B in loans last quarter, up from the $2.7B in Q2.
“When we launched back in 2007, LendingClub’s vision was to leverage technology, data and our marketplace model to transform the banking industry,” said company CEO Scott Sanborn on the earnings call. “We began by bringing a traditional credit product, the installment loan into the digital age by moving it online, broadening access, lowering costs and delivering a fast and frictionless experience for borrowers, all while delivering attractive risk-adjusted returns for loan investors.”
In 2014, however, it was their designation as a “tech company” rather than as a financial company that saw their valuation surge to nearly 3x higher than what it is now. (Note: The company did a reverse 1:5 stock split in 2019). But now as a bank, that valuation is surging back.
“Now with the added funding benefit of our bank, we’re able to generate positive unit economics,” Sanborn said.
OnDeck originated $462M in Small Business Loans in Q3
October 28, 2021
Enova, through OnDeck, originated $462M in small business loans in Q3, according to the company’s earnings call. That was up from $400M the quarter before.
“…as we’ve been predicting, small businesses have been beneficiaries of the pent-up consumer demand and the resulting increased spending,” said Enova CEO David Fisher.
Fisher also touched upon the CFPB regulatory inquiry disclosed in the earnings release, downplaying it somewhat as “routine.”
“I want to touch on the CID that we announced in our press release,” he said. “The CFPB is investigating a handful of issues several which were self reported by Enova. We have been cooperating fully with the CFPB as we always do. This is a routine process with the CFPB, particularly in our industry. We’ve been through it with them in the past. As a result, we anticipate being able to work with the CFPB to expeditiously complete this investigation.”
This story has been updated to fix typos
