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
Words Matter in Contracts (And everywhere else)
April 25, 2017
The Counselor Library conference powered by law firm Hudson Cook LLP was a big hit in Baltimore this week. While focused on consumer lending, they held a special one-day program on merchant cash advance and small business lending. The topics and discussions were off-limits to press reporting but what was largely visible on the exhibition floor was the Merchant Cash Advance Basics training course.
Recent merchant cash advance case law suggests that it is of critical importance for sales reps and underwriters to be knowledgeable of their own products. To be specific, the words you use to communicate with merchants over emails, on the phone and in your contracts should always be consistent and in compliance with applicable laws. What you write on forums and the promises you make in your ads should also pass legal muster.
Even if you consider yourself to be an industry veteran, the Merchant Cash Advance Basics course should refresh your memory on fundamental industry practices. If you are a newcomer, consider Merchant Cash Advance Basics an absolute necessity.
Hudson Cook, LLP has established itself as a leader in the MCA legal arena and we were proud to participate in their event.

A Tale of “Debt Restructuring”?
April 19, 2017
Here’s a doozy for you: A merchant signed an agreement with a purported law firm on September 29, 2016 for assistance with restructuring their debts. As part of that agreement, the law firm, which goes by the name Protection Legal Group, LLC, also offers “Litigation Defense Services” in case the merchant gets sued for non-payment of debts. The basic “non-legal” services alone, however, required that this merchant pay approximately $100,000 to Protection Legal Group, according to court filings. That’s a pretty hefty service fee for a business that was only claiming $400,000 in debts, most of which it improperly classified as debt since they were actually sales of future receivables.
The very next day, a merchant cash advance (MCA) company sued the merchant in New York for breach of contract, claiming that they were owed more than $300,000. And three months later, the merchant, represented by an attorney named Amos Weinberg, sued the first law firm that they hired. According to that complaint, filed on January 6, 2017, Protection Legal Group never even contacted the MCA company even though they were hired to negotiate with them specifically. Stranger yet, the merchant alleges that Protection Legal Group could not even have defended them in litigation because the MCA agreement’s jurisdiction was New York and Protection Legal Group has no lawyers that are licensed in that state. Naturally, the complaint further alleges that Protection Legal Group accepted payments anyway and has refused to return it.
The merchant’s new attorney, Amos Weinberg, is no friend to MCA companies, according to New York court records. Nevertheless, he offers harsh words for these new purported debt restructuring companies on his blog. “A growing industry that preys on people all over the country who are sued in New York is the debt resolution industry,” he wrote. “These companies promise to settle lawsuits for a portion of the sum sued by inducing the client to stop paying the creditor and instead pay sizeable weekly sums into an escrow account.” He then goes on to call out Protection Legal Group by name.
To summarize, a merchant hired a lawyer for an exorbitant fee to restructure their debts that weren’t debts, got sued and then had to hire a lawyer to sue their lawyer.
Protection Legal Group is also being sued by Forward Financing, an MCA company, for interfering with its contracts. That story has made the news in legal circles.
Court documents show that Protection Legal Group is fighting on another front as well since less than three weeks ago, a class action lawsuit (Case: 1:17-cv-02445) was filed against them for violating the TCPA. According to the complaint, they are allegedly marketing their services via pre-recorded voice messages to cell phones.
As an aside, most MCA contracts already permit merchants to have their payments lowered in the event that their revenues drop. Typically, they just need to send in their recent banking activity to demonstrate the drop and the MCA company will reimburse the merchant for anything collected above the specified percentage of sales. As this is a fundamental part of the agreement, the merchant shouldn’t require a debt negotiator or an expensive attorney to aid them with this.
MCA Case One of the Most Notable of the Year for Factoring Industry
April 17, 2017
At the 2017 Factoring Conference in Fort Worth, TX, industry attorney and talk radio show host Bob Zadek, cited Merchant Cash & Capital, LLC v G&E Asian American Enterprise., Inc. as one of the most notable legal decisions in 2016.
The contract in question was a purchase of future receivables, i.e. a merchant cash cash advance. A summary of the decision appeared on the Usury Law Blog last year.
During Zadek’s Reports from the Courts session at the conference, he summarized the lessons as follows:
This case is interesting because it appears to confirm that a common contract structure utilized by merchant cash advance companies protects them from usury defenses. When analyzing whether a transaction is usurious, courts look to whether usurious interest is or will be charged to the Borrower from inception of the transaction. Subsequent events do not affect the analysis.
To paraphrase what Zadek also said, the New York Court correctly acknowledged that usury cannot be backwards-looking.
In that case, the MCA company was represented by New York attorney Christopher Murray of Giuliano McDonnell & Perrone, LLP
81% of Online Business Lending Borrowers Report Being Satisfied or Neutral
April 12, 2017The latest Small Business Credit Survey published by the Federal Reserve shows that 81% of small business borrowers were either satisfied or neutral about their online loan experience. Online lenders were defined as nonbank alternative and marketplace lenders, including Lending Club, OnDeck, CAN Capital, and PayPal Working Capital.

Of the 19% that were dissatisfied, nearly half cited transparency as a root cause. But that’s to be expected given that businesses dissatisfied with their loan from a large or small bank also cited transparency just as often.

While these charts indicate that there is still room for online lenders to improve, the 2016 report paints a more honest narrative than last year. Last year’s report used net satisfaction scores, which measured the difference between satisfied and dissatisfied borrowers. That methodology resulted in 15% net satisfaction for online lenders in 2015, which unless you read the fine print, easily misled even the most sophisticated of readers to conclude that only 15% of borrowers were satisfied. (Those readers included experts testifying in congressional hearings, the media, and government agencies, all of whom relied on that report to argue that online borrowers were terribly dissatisfied).
The 2016 report shows that businesses borrowing from an online lender were only slightly more likely to be dissatisfied than those that borrowed from a large bank (19% vs. 15%). And it’s the high interest rates that stand out to those dissatisfied online borrowers. 33% said that a high interest rate was the reason for their dissatisfaction. This is to be expected since non-banks inherently suffer from a higher cost of capital than banks.
Cash Advances?
Unfortunately, all of their data on “cash advances” is tainted. If they meant “merchant cash advances” or sales of future receivables, they should’ve specified such in the survey that went out to small businesses. Instead, the survey repeatedly asked about cash advances, a term most commonly associated with borrowing money through an ATM with a credit card. Those surveyed were also asked if they used personal loans, auto loans or mortgages so the multiple choice context suggests a credit card cash advance. Similarly, a cash advance could also mean a payday loan. With so many interpretations, the consequence is that it’s impossible to tell what the Federal Reserve meant or what those being surveyed thought they were being asked.
Notably, one question asked businesses if “portions of future sales” were used as collateral for a debt, but since merchant cash advances do not collateralize future sales (the future sales are actually sold, they don’t serve as collateral for a loan), it’s difficult to understand what they meant or how a respondent might interpret that.
Statistically representative?
The 2016 report also spends more time defending the Fed’s sampling methodology. Perhaps they are aware that their data is being put under the microscope.
Read the full Fed report here
For Factoring, Different Spin, Same Issues as MCA
April 10, 2017
They called it the 2017 Factoring Conference, but an MCA professional would’ve hardly noticed. On the agenda was news about Dodd-Frank’s Section 1071, the now-dead NY lending legislation, usury litigation, confessions of judgment, stacking, fintech and gripes about brokers. And yet factors and MCA companies still largely live separate lives.
The underlying differences between the two industries are as much cultural as they are contractual. The International Factoring Association’s directory reports having nearly twice as many members from Texas as they do from New York. They also list having more members from Utah than they do New Jersey. Compare that to our own readership at deBanked in which website visitors and magazine subscribers are most heavily concentrated in New York, California, Florida and New Jersey. Texas ranks 8th for subscribers and Utah is much, much farther down. And while purely based on my unscientific observation, I’d wager a bet that the average age of a factoring company owner is at least a decade older (probably much more) than the average age of an MCA company owner.
Differing philosophies between the two industries are perhaps exacerbated by this generational and demographic gap.
On a fintech disruption panel at the factoring conference last week, Pearl Capital CEO Sol Lax told attendees that the MCA industry was not only innovative but ultra competitive. “You either need to evolve or become a phone booth,” he said. Other panelists explained that today’s average small business is focused on speed and simplicity and that they’ve built their models around that.
But factoring has survived the test of time. In the latest issue of The Commercial Factor, Jeremy B. Tatge traces the first factoring agreement in America to 1628. “This spirit has endured and survived wars of independence, such as the American Revolution, two World Wars in the Twentieth Century, and even down to the present day (NATO being but one of many examples),” he writes.
Will technology finally break that spirit or will today’s stereotypical young MCA company owner from New York and Florida eventually find themselves becoming older, wiser, and ready to lay down roots in the midwest? Will they trade the Las Vegas conferences for honky tonks in Cowtown?
I don’t believe that such a transition even has to happen. Whatever differences the two industries have, they are united by common causes and issues and can evolve together.
Can Factors and MCA Companies Get Along?
April 7, 2017
At the factoring conference in Fort Worth, TX on Thursday, the 2 PM panel was officially called The Fintech Disruption. But it could’ve just as easily been named The MCA Disruption considering that the panelists all ran companies engaged in either unsecured business lending or MCA. The tension in the packed room was palpable. For some factors, the competitive pressure they feel with unsecured finance companies cuts deep, down to their soul. So naturally it only made sense, being that it’s Texas and all, that they lassoed a few of those unsecured guys up and put them on stage to explain theirselves.
So what’s the best way for an MCA company to make a peace offering to a room full of factors?
Sol Lax, the CEO of Pearl Capital Business Funding LLC, kicked it off by telling the audience that a small business customer might begin their quest for capital by searching the internet for a small business loan. “There’s no factoring companies that are going to pop up,” he exclaimed, suggesting that they were already losing when it came to the Internet to acquire customers and had little hope of catching up. But if you are a small factor, he conceded, you should continue generating leads through relationship building since the Internet is now so cost-prohibitive.
Dean Landis, the President of Entrepreneur Growth Capital, ran with that and asked attendees to raise their hands if they really pay attention to the cost of lead acquisition. While this was an informal survey, virtually no one raised their hand, seeming to confirm that deal flow for factors is largely acquired through relationships. Landis, who played the role of moderator and devil’s advocate, asked if MCAs and factors were really even targeting the same customers. Would you lend to someone who already has a senior lien? he asked. “These [MCA] guys figured out how to do that.”
Dan Smith, President of Fora Financial and Paul Rosen, Chief Sales Officer of OnDeck, explained that their customers often seek a fast-paced application-to-funding process, which drew a rebuke from an audience member who had a hard time believing that so many merchants truly needed that speed and simplicity. Smith and Rosen countered by saying that customers will choose whatever is best for them and that not every customer fits their boxes.
Lax advised factors to look at the bigger picture, that one big lender on their own might not seem like a threat but that a company like OnDeck could license out their scoring model to banks and banks could adapt that to make loans to companies they have otherwise been ignoring (the same ones that go to factors) and compete against the factors directly.

As the audience chipped away with questions about the soundness of these scoring models and fintech, Smith of Fora reminded everyone that they still have underwriters that are manually overseeing deals, rather than let computers do everything entirely on their own. “You can literally fintech yourself out of the business,” Smith cautioned lenders who might overzealously replace their core competency with algorithms that don’t perform as well.
But even then, do these scoring models work when merchants gets stacked on? This question was asked and it suggests that stacked merchants have a higher risk of default. Rosen of OnDeck confirmed that when he said “customers that stack on us have much higher loss rates.” Meanwhile, Smith said that when customers are doing something that affects their model, they just need to improve their model, just like they would if there was a recession or some other economic event underway. “All of our models are built on lifetime value,” he said. They want to grow and nurture their clients, he explained.
While factors fear that MCA companies could stack on their clients, there are signs that a path forward exists. An informal poll of the room indicated that not only are factors referring prospects to MCA companies but that MCA companies are returning the favor and sending prospects to them. The former was more prevalent.
Lax of Pearl, was more pointed about the future for factors. “You either need to evolve or become a phone booth,” he proclaimed. He prefaced that with a story about a child who was absolutely befuddled by an old Superman movie, as in ‘what were all these ridiculous random booths doing in the city that enabled Clark Kent to go around changing his clothes?’ The concept of a phone booth could hardly even be explained to the next generation. “Your industry is suffering a phone booth moment,” Lax said to the factors.
Is he right?
To the unsecured lenders and MCA companies who attend the factoring conference, they invariably see value in partnerships. And for the factors still hesitant to take that step, is it really the MCA model that’s causing friction? Or is it the evolution of the way that businesses interact with financial technology, i.e. fintech? And might fintech disrupt everyone in the end?
Only time will tell.
Quotes and paraphrases were derived from the panel. The summary is my own analysis of it and much of the 90-minute discussion was omitted here for brevity.
Lights Out for New York’s Attempt to Impose Stricter Lending Rules
April 5, 2017
In a late night session on Tuesday, and days past the budget deadline, the New York State Senate voted 58-2 in favor of a key budget bill. Noticeably gone from it was Part EE, which would’ve imposed stricter licensing requirements on not only just lending, but also other forms of finance. Part EE was originally put there by the Governor’s office as an amendment to Section 340 of the State’s banking law.
Over the last two months, several trade groups used what little time they had to express concerns over the language. Their biggest frustration was that no one had consulted with them in advance. In February, Dan Gans, the executive director of the Commercial Finance Coalition (CFC) said, “They should allow all the stakeholders to have their voices heard.” The CFC, which represents many small business financing companies, did their best to do just that last month by actually making the trek to Albany.
Ultimately, the legislature did not support the Governor’s plan. Both the Senate and the Assembly removed Part EE from their versions of the budget and on Tuesday night, the Senate passed it. The Assembly passed it the day after.
This is the first time the budget deadline has been missed under Governor Andrew Cuomo. The last miss was in 2010 under Governor Paterson, which came in 125 days late.
Did UCC Lead Generators Overload NY State’s System?
April 4, 2017
In the small business finance industry, New York State is known as one of the friendliest places to conduct a UCC search. You can not only search by debtor, but also by secured party, and get just about everything you need to create a list of prospects for free.
But the State’s website isn’t exactly a pillar of technological achievement. Indeed, the UCC Lien Search welcome page makes clear that searchers will need to be using Netscape Navigator 4.0 or higher and that version 3.0 of Internet Explorer or lower is not supported. Those browser iterations were released in 1997 and 1996 respectively, before some in the business finance industry were even born.

And the online system built for Windows 3.1 users didn’t seem to be doing so well over the last few months. Routine manual searches that I occasionally conduct were leading to error messages and crash pages instead of results. Were UCC lead generators querying the system to death?
Last week, New York took the entire UCC system down for “maintenance” and when it finally came back up, a tool to combat automated queries had been installed.

Curiously, this has only been implemented for secured party searches and other debtor search options. Standard debtor search options remains unchanged.
As Captchas are designed to thwart automated queries, could this be a sign that lead generators were crashing the system?
To check it out yourself, it’s best to be using Windows 95 or higher. Typewriters and Etch-A-Sketch users may experience performance issues.






























