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.
Articles by Sean Murray
Greenbox Capital was the victor of a major lawsuit argued before Florida’s Third District Court of Appeal that conclusively established the legality of merchant cash advances in the state.
When asked for comment, Greenbox Capital® CEO Jordan Fein said:
“It’s been a long, arduous, and expensive battle over the last few years proving in a court of law that a Merchant Cash Advance is not a loan. Today, we celebrate a win for all Merchant Cash Advance companies in Florida and the entire United States who are dedicated to funding small businesses through ethical practices. Our hard work and commitment to helping small businesses grow was validated and we are thrilled with the final decision of the District Court of Appeal.”
The decision in Florida echoes a similiar opinion reached in New York in 2018.
Big news in the State of Florida. The Third District Court of Appeal entered its order on January 6th to decide the fate of Craton Entertainment, LLC, et al., v Merchant Capital Group, LLC, et al..
Merchant Capital Group, LLC dba Greenbox Capital sued Craton in December 2016 over a default in a Purchase and Sale of Future Receivables transaction. In turn, Craton responded with various defenses and counterclaims that asserted the underlying transaction was really an unenforceable usurious loan.
The Circuit Court for Miami-Dade County sided with Greenbox in August 2019. The defendants appealed.
The District Court of Appeal decided the matter conclusively on January 6, holding that the original ruling was affirmed on the basis that:
- The transaction is not indicative of a loan where repayment obligation is not absolute but rather contingent or dependent upon the success of the underlying venture
- that the transactions in which a portion of the investment is at speculative risk are excluded from the usury statutes
- when the principal sum lent or any part of it is placed in hazard, the lender may lawfully require, in return for the risk, as large a sum as may be reasonable, provided it is done in good faith.
The lawyers representing Appellee Greenbox Capital were Henderson, Franklin, Starnes & Holt, P.A., William Boltrek III, Shannon M. Puopolo and Douglas B. Szabo.
You should contact an attorney to discuss the implications of this ruling. Merchant Cash Advance contracts are not all the same.
This ruling is similar to a ruling in New York that was made in 2018.
In early 2015, deBanked signed up a customer that was interested in paying with Bitcoin. So we priced it out and we agreed that about one month of advertising on our website combined with an ad in a single magazine issue would cost about 14 bitcoins.
I submitted an invoice via Coinbase and they paid. Pretty soon thereafter, we sold the bitcoins for cash. I thought nothing of it because I’ve never seen Bitcoin as an investment.
We continued to do other advertising deals in Bitcoin in which the contracts were priced in Bitcoin instead of dollars but that was the largest single Bitcoin transaction we ever did. I’ve also done things like pay for hotel rooms for industry conferences in Bitcoin, because you know…that’s how I roll.
As you probably heard over the New Year’s weekend, the price of bitcoin shot up to $34,000. It got me thinking about how I failed to become a Bitcoin millionaire years earlier, but now with this incredible new high, it reminded me of that one deal in particular
Fourteen bitcoins in 2021 is worth approximately $476,000. Almost a half million dollars. That was for just 1 month of advertising on deBanked.
I guess I should’ve held on to them.
Happy New Year.
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.
LendIt Fintech distributed a marketing flyer via email yesterday to its subscribers and it got us thinking about how much online fintech news people are consuming, especially in this era of 2020.
LendIt reported 65,000+ monthly page views for its LendIt Fintech News and that it had 800,000+ podcast downloads.
Meanwhile, deBanked and DailyFunder combined are recording 311,000+ in average monthly page views. Visitors are also spending 7,300 hours on our sites combined each month on average.
These figures are enormous. Thanks for reading!
“From inception through 2019, [Par Funding] incurred a cash loss from operations of $136.2 million.”
That’s the conclusion reached by Bradley D. Sharp, CEO of Development Specialists Inc (DSI), the financial advisor to the Receiver appointed in the Par SEC case.
Par has scoffed at the Receiver’s analysis of its business. “We do not necessarily begrudge attorneys, whose skill sets are often in other areas, a potential inability to understand the math that often makes for a strong and profitable financial model,” Par’s lawyers wrote in an October court filing. “There is a reason that smart, mathematically inclined people are typically hired by banks, hedge funds and financial services firms. But the Receiver and his counsel’s inability to understand Par’s business has led to all manner of baseless accusations that are easily answered in the very documents they possess but do not understand…”
Par says it was profitable and walks the Court throught its mathematical process. Sharp says Par’s assessment “is misleading and does not reflect actual operations at the company.”
Sharp alludes to Ponzi-like characteristics but refrains from using that term. “From inception through 2019, [Par] paid $231 million to investors, consisting of principal repayments totaling $135.6 million and interest payments totaling $95.4 million. [Par] could not have made these principal and interest payments to the investors without additional funds from the investors.”
Par explained that the key to its business is in the compounding:
“The merchant funding model is profitable because merchant funding returns are reinvested, either in a new or different merchant, or in an existing merchant with adequate receivables as a consolidation, or as a refinance of a merchant which may already have MCA funding from another provider. And the reinvestment begins on the merchant funding returns which commence immediately and occur daily. In very simple form, the math works as follows. Assuming $10,000 is funded to a merchant pursuant to a funding agreement providing for a funding return of $13,000 over the course of 100 daily ACH withdrawals, the agreement would provide for repayment to begin immediately with daily payments of $130. As those monies are returned, portions are used to pay operating expenses, but most of the monies are re-invested to fund other merchants. Mathematically, this means that the original $10,000 is being used to fund more than one merchant. Over the life of a single $10,000 funding, that same $10,000 can be used to fund multiple merchants, all of whom are paying funding fees in excess of the principal amount received. Thus, the original $10,000, at a 1.30 factor rate, generates $13,000 on the first merchant cash advance (MCA). Those funds are reinvested and generate $16,900 on the second MCA, and $21,970 by the third MCA – an increase of $11,970 over and above the initial $10,000. And that can happen within a year. This is the powerful compounding effect of the financial model.
That is the simplest version of the model. In practice, the model is far more sophisticated than that because the leveraging to new merchants of the MCA returns begins as soon as the MCA payments come in.”
Par additionally said:
“At the conference on October 8, 2020, the Receiver’s counsel told this Court, and many investors, that out of $1.5 million received per day from merchants prior to July 28, 2020, $1.2 million was used for new MCA funding. Thus, according to the Receiver’s counsel, only $300,000 constituted net collections, about 20%. The Receiver’s counsel appears to be suggesting that the company is not holding on to receivables but, instead, is refunding the same merchants 80% of receipts. This proposition is wrong and its assertion shows that the Receiver and his counsel do not understand the MCA business.”
One could assess that a large element of this case consists of the Receiver being like, ha! well look at this! and Par responding, well, yes, that is actually how our business works.
In fact, that is precisely the angle Par took in defending its use of funding new deals with money collected from deals previously funded.
“First, the numbers show that collections are used to fund new MCA deals,” Par’s attorneys wrote. “This may come as a total surprise to the Receiver and his counsel, but funding merchants is the business of Par. That is like criticizing Ford Motor Corp. for using its car sales income to build and sell more cars.”
Both sides agree that Par advanced over $1 billion to small businesses but Sharp says that “reloads” distorted the numbers.
“Use of reloads escalates the obligations of the merchant as each reload adds an additional ‘factor’ along with any new funds advanced,” Sharp wrote. “In [one example the reloaded funds are] subject to the factor twice; once when the funds were originally sent and again when they are included in the reload advance. The use of reloads also significantly distorts the calculation of loss rates as the advances are simply refinanced without becoming a loss.”
Sharp concludes that the true end result for Par is a much higher default rate than it lets on to.
And then there’s this
Sharp has repeatedly brought attention to a list of merchants with unusual payment and funding activity. Par countered by saying there are good explanations for each.
Amongst all of this is that company insiders are alleged to have received tens of millions in payments from Par and the Receiver is confident, in part due to DSI’s report, that Par was majorly unprofitable.
“Based on our review to date, it is apparent that [Par] would not have been able to continue to provide payments to investors, or to continue to operate, without additional funds from investors,” Sharp wrote in a December 13th report.
This case is not the first rodeo for Sharp and DSI in the merchant cash advance business. They were also assigned to manage the 1 Global Capital case.
The case is ongoing. The Court recently approved a motion to expand the Receivership estate.
After ten years of debate over when and how to roll out the CFPB’s mandate to collect data from small business lenders, the Bureau has initially proposed to exclude merchant cash advance providers, factors, and equipment leasing companies from the requirement, according to a recently published report.
The decision is not final. A panel of Small Entity Representatives (SERS) that consulted with the CFPB on the proposed rollout recommended that the “Bureau continue to explore the extent to which covering MCAs or other products, such as factoring, would further the statutory purposes of Section 1071, along with the benefits and costs of covering such products.”
The SERS included individuals from:
- AP Equipment Financing
- Artisans’ Bank
- Bippus State Bank
- CDC Small Business Finance
- City First Bank
- Floorplan Xpress LLC
- Fundation Group LLC
- Funding Circle
- Greenbox Capital
- Hope Credit Union
- InRoads Credit Union
- Kore Capital Corporation
- Lakota Funds
- MariSol Federal Credit Union
- Opportunity Fund
- Reading Co-Operative bank
- River City Federal Credit Union
- Security First Bank of North Dakota
- UT Federal Credit Union
- Virginia Community Capital
The panel discussed many issues including how elements of Section 1071 could inadvertently embarrass or deter borrowers from applying for business loans. That would run counter to the spirit of the law which aims to measure if there are disparities in the small business loan market for both women-owned and minority-owned businesses.
One potential snag that could complicate this endeavor is that the concept of gender has evolved since Dodd-Frank was passed in 2010. “One SER stated that the Bureau should consider revisiting the use of male and female as categories for sex because gender is not binary,” the CFPB report says.
But in any case, there was broad support for the applicants to self-report their own sex, race, and ethnicity, rather than to force loan underwriters to try and make those determinations on their own. The ironic twist, however, according to one SER, is that when applicants are asked to self-report this information on a business loan application, a high percentage refuse to answer the questions at all.
The CFPB will eventually roll the law out in some final fashion regardless. The full report can be viewed here.