Industry News
Humans vs. Bank Statements – An Underwriting Journey
June 8, 2017
Automation hasn’t replaced humans yet when it comes to reading bank statements in the alternative small-business finance industry. ISOs, brokers, funders and underwriters still fend off drowsiness and ignore the risk of eye strain as they pore over months of paper or electronic documents.
Many consider the drudgery a necessary part of the business. A merchant’s bank statements can reveal negative balances and commitments to previous loans or previous cash advances – any of which can indicate a bad risk, observers say. Moreover, detecting altered statements can expose fraudulent attempts to obtain credit, they add.
So why not dispense with the tedium and possible tampering of reading paper statements and pdfs? Instead, interested parties could simply obtain the login credentials for a credit or advance applicant’s bank accounts and explore their banking records firsthand. But a mixture of fear, fraud and expense often prevents that direct and relatively simple approach, multiple sources contend.
“Merchants simply don’t want to give up their username and password to enable someone to log into their bank account,” says Sam Bobley, CEO of Ocrolus, a company that specializes in automating the reading of paper statements and statements that have been converted to PDFs. Fear of somehow falling victim to an electronic robbery may be at the root of that reluctance, many in the industry agree.
Whatever the source of the hesitancy to share login information, the wariness usually seems more pronounced at the beginning of the underwriting process than toward the end, notes Arun Narayan, senior vice president of risk and analytics at Strategic Funding Source Inc., a New York City-based direct funder. “I don’t think that’s a problem after the commitment to fund,” he says, “but it is a problem before the commitment to fund.” Funders can try to leverage their market power to urge brokers to obtain a username and password from a merchant, Narayan suggests. But he admits that approach works only some of the time.
Merchants who have had a bad experience applying for loans or advances or are submitting their first application exhibit the most fear of surrendering login credentials, according to John Tucker, managing member at 1st Capital Loans, a broker with headquarters in Troy, Mich. “If they’ve been through the process before, they pretty much know what’s expected of them,” he says.
All too often, applicants balk at presenting their login information because they have something to hide, notes Cheryl Tibbs, owner of One Stop Commercial Capital, an Atlanta-based brokerage that handles deals for multiple ISOs. She says her detective work with bank statements uncovers an average of two fraudulent applications per week.
Attempts at fraud average more than five a day at Elevate Funding, a Gainesville, Fla.-based director funder, says CEO Heather Francis. Her company’s underwriters learn what to look for in bank statements that can indicate a merchant is trying to defraud a funder, she says.
First, an underwriter who’s manually checking bank statements knows that documents bearing the names of certain banks have a higher likelihood of being bogus, Francis says. Apparently, fraudsters find the statements from those banks easier to alter, or perhaps they have the templates for those banks and can plug in false information, sources speculate.
WHETHER PAPER OR PDF BANK STATEMENTS PROVIDE TO BE ON-THE-LEVEL OR NOT, READING THEM MANUALLY TAKES TIME
Besides, anyone hoping to bilk a funder can buy a customized “vanity statement” for $25 or $30 on craigslist, complete with whatever deposits, opening balances and closing balances they choose, Francis notes. That can tempt troubled merchants as well as outright criminals, observers agree.
And some of the more bizarre errors that appear in falsified statements can seem almost comical. Tibbs cites the example of a statement she saw that was supposedly for January but was populated with transactions dated in February. On altered statements the ending balance for one month might not match the beginning balance for the next month, several sources note.
Sometimes the fake numbers that wayward applicants choose to include in their fraudulent statements can send up red flags, Tibbs maintains. If a merchant is seeking $40,000 and presents account documents indicating $80,000 or $90,000 balances at the end of each month, something’s amiss “10 times out of 10,” she says.
Tibbs tells the story or a referral partner from a one-or two-person ISO calling her in a state of near-euphoria in the middle of the night, breathlessly describing a potential customer with monthly sales of $800,000 and a need for $500,000 in capital. Experience told her immediately that something wasn’t right. In the morning, she saw the statement’s ending balances of $300,000 to $400,000, which confirmed her suspicions.
Yet grafting such unlikely numbers to a forged bank statement isn’t as unsophisticated as some of the telltale signs that the industry sees when viewing bank statements manually, notes Francis. Some aspiring crooks doctor genuine statements with white-out correction fluid and then type in new numbers in a mismatched font, she says.
Anyone reading bank statements should also beware of applicants who “shotgun” applications to multiple ISOs, often on the same day, Tibbs warns. She often comes across that scam because numerous partners refer deals to her, she says.
Whether paper or pdf bank statements prove to be on-the-level or not, reading them manually takes time. An experienced underwriter who knows where to look for what he or she needs to find to verify a statement requires 15 to 20 minutes to approve one from a familiar financial institution, Francis says.
It seems that nearly every bank or credit union has its own way of designing statements, so the manual reading process slows down when an underwriter manually reads a document with an unfamiliar layout, Francis notes. Unfamiliar types of statements sometimes come from small, obscure credit unions or remote community banks, observers say.
Familiar or unfamiliar, statements represent a key part of the underwriting process, and some funders accept the time and expense of reading them manually as simply a cost of doing business, according to Francis. But that expense can become a significant portion of the cost of a credit evaluation, according to Narayan.
That’s why Narayan and his colleagues at Strategic Funding Source have been working with Ocrolus, a startup company that automates the reading of paper statements and pdf’s of statements. Ocrolus uses optical character recognition, or OCR, to automate the reading of those statements.
Simply stated, OCR enables a machine to make sense of the characters it perceives in an image, says Bobley, the Ocrolus executive quoted earlier. When the platform can’t make out certain data points, they’re snipped and verified by humans in crowdsourced mini CAPTCHA tests, which stands for Completely Automated Public Turing.
They’re those tests that ask computer users to type what they see to prove they’re not robots, Bobley notes. When two of three crowd workers agree on what an image says in the CAPTCHA test, the Ocrolus platform accepts their verdict as correct, he says.
Ocrolus envisions a large market for its new platform among the many funders still reading bank statements manually in the early stages of underwriting, Bobley says. However, in the later stages of underwriting many of those funders already use bank sync companies to verify statements.
Bank sync companies include DecisionLogic, MicroBilt, Yodlee, Plaid and Finicity. They connect directly with some financial institutions to verify statements. Funders often mention the expense when they talk about bank sync companies, and they also note that bank sync companies have not yet established connections with some lesser-known financial institutions.
But late in the funding process, Elevate Funding requires merchants to cooperate with the bank sync company it uses unless extenuating circumstance dictate otherwise, says Francis. The bank sync company can gain direct access to statements using encrypted login information that does not reveal the true username or password to Elevate Funding or the bank sync company, she maintains.
Some of Elevate Funding’s brokers maintain portals that merchants can use to provide their login credentials to get the bank sync process underway, Francis notes. The portal takes merchants to a page with Elevate Funding branding through a white-label program the bank sync company provides.
“IT HAS SAVED US FROM MERCHANTS THAT WOULD HAVE DEFAULTED…IT IS A NECESSARY TOOL – ONE THAT WE HAVE TO USE”
In about 85 percent of Elevate deals, the bank sync company is connected with the merchant’s financial institution and therefore theoretically capable of gaining access to the accounts in question, Francis notes.
Over the past 30 days the Elevate Funding bank sync results included 3 percent bank error and 17 percent merchant error, while 73 percent of the statements were verified, Francis says. Bank error occurs when the bank sync company is connected to the bank but still can’t obtain the account information. Merchant error sometimes happens when the potential client provides an incorrect user name or password, probably after forgetting the right one. Merchant error can also mean that the applicant was plotting fraud and abandoned the bank sync process upon realizing he or she was about to get caught.
The upshot? Some 73 percent of the bank statements submitted are verified, meaning that the information the merchants submitted matches the numbers at the bank, Francis reports. That also means that for whatever reason 7 percent don’t even start the process they’ve requested, she says.
Meanwhile, the bank sync connection also provides real time data that would indicate to the funder whether the merchant has had a decline in sales, an increase in negative activity or the recent addition of a credit provider, Francis says.
The service can pay off. In an average month, the bank sync service detects about 10 or 15 bad deals that Elevate Funding underwriters had accepted, Francis says. “It has saved us from merchants that would have defaulted,” she says. “It is a necessary tool – one that we have to use.”
But what about those cases where the bank sync company can’t connect with the financial institution and the merchant still won’t give up the login for the account? At 1st Capital Loans, Tucker can sometimes handle the situation by getting a bank activity sheet that lists transactions. If that type of sheet’s not available, he arranges a phone call to with a representative of the bank to verify that nothing’s amiss with the applicant’s bank account.
It’s another example of how – even with today’s rampant automation – the human touch sometimes remains indispensable in assuring that merchants deserve the loans or advances they seek.
Goldman, Cohen Bet on Nav
May 19, 2017
Goldman Sachs. Steve Cohen. These are a couple of the high-profile investors that small business credit and finance startup Nav has attracted to line its coffers. Nav recently lifted the size of a Series B round by $13 million for lead investor Goldman Sachs Principal Strategic Investments as well as Cohen’s Point72 Ventures and others, bringing the tally for this round to $38 million.
Levi King, co-founder and CEO of Nav, told deBanked that Goldman Sachs was drawn to the startup’s robust vision, which is to decrease the death rate of small businesses in the United States. He said doing so would have a trickle up effect on Goldman and the capital markets.
“Goldman Sachs invested as a bank investment, not other people’s money. They believe with scale we will change how small business owners make financial decisions, and that will impact the capital markets. We will have a fundamental impact on the entire ecosystem, if we’re successful.”
Goldman clearly believes it’s a good bet, and Cohen’s Point72 Ventures agrees.
“We have the ability at scale to change what can happen in the capital markets based on our data, and that’s something [Point 72] wants to be a part of. They are a smart advisor for us from a data perspective – a quant hedge fund that’s best in class on data. We get free advice along the way. That’s part of the deal,” King said.
In fact, it was another major player in the credit scene that gave the nod to other investors to follow.
“It all started with Experian. That investment was a bigger landmark than any of the other ones. Experian is the biggest credit agency in the world and they had never done a venture investment until us. This sent a signal to other investors,” said King, referring to a partnership that was inked less than a year ago.
The Vision
King points out that bringing the startup’s vision to reality is a gamble. For instance, Nav’s current customer count is 215,000 and they aspire to have 28 million. “That’s the path that we’re on,” he said. The path includes the startup’s most recent expansion into business checking account data.
“We launched a loan reality check app on Android. We’re only testing it. Nothing like it exists. You put in a username, password and banking information, and we model that data and determine how likely it is that you will qualify for a loan based on that data set,” said King.
For instance, if a business has a history of bouncing checks, that’s a negative for scoring. Depository trends also count toward scoring.
“We’re sitting on personal credit, business credit and checking – three data sets. Now we have enough data for lenders to make full decisions on products like business credit cards,” said King, who makes a clear distinction between the various channels involved in the credit equation.
“To be clear, the small business owner is our customer. Lenders are our partners. Business owners win every time,” he said, pointing to the example of one lender partner.
While King wouldn’t disclose the lender he acknowledged that they are a top-10 financial institution that wanted to pay for a top result for its business credit cards among Nav’s product recommendations. This would have been a sponsored result, but it didn’t sit well with Nav. “It would have been a sweet check, but our product would lose integrity for the customer. We said no,” he said.
Also part of the vision is international expansion. “We have those ambitions. That’s why we’ve taken capital from foreign investors, to see how our model can apply in their markets. But that’s way out there,” he said, pointing to investments by CreditEase Fintech Investment Fund in this most recent round and Tencent in a previous round, both of which are based in China.
Meanwhile King said the fresh capital will be prioritized across three buckets. “We’re pretty disciplined at how we deploy capital. I will tell you what I have repeated thousands of times internally to our business. We spend money on acquiring new customers, improving our technology and UX and compensating our employees. We don’t waste money on in-office massages. At this stage a lot more of that capital goes toward customer acquisition,” he said.
Clocktower Technology Ventures also invested in the most recent Round B. Point72 Ventures and Goldman Sachs did not immediately return calls seeking comment.
Prosper Loaned $585M in Q1, Losses Continued
May 16, 2017Prosper had a net loss of $23.9 million in Q1 on only $30.8 million in revenue, according to the 10-Q they filed Monday. They originated $585.6 million in loans, 90% of which were funded through their Whole Loan Channel, the segment made up of accredited and institutional investors who buy entire loans.
Prosper had 371 full-time employees at the end of Q1 compared to 667 full-time employees at the end of Q1 2017.
The full report can viewed here.
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Note: The net loss figure was originally published with an incorrect digit. It has since been corrected
Federal Court Agrees, Merchant Cash Advances Not Loans or Usurious
May 13, 2017
By now, numerous judges in the New York Supreme Court have concurred that purchases of future receivables are not loans nor usurious, yet challenges to these contracts continue. In the latest landmark ruling, defendants/counterclaim plaintiffs Epazz, Inc., Cynergy Corporation, and Shaun Passley a/k/a Shaun A. Passley, moved to have the original action involving their merchant cash advance dispute transferred from state court to federal court, perhaps hoping for a different opinion on whether such agreements are usurious.
The law was not on their side. In the Southern District of New York, a federal court, the Honorable Louis L. Stanton echoed on May 9th, 2017, what state judges have been saying all along, that a purchase is not a loan because the purchased receipts are not payable absolutely.
In this case, the “receipts purchased amounts” are not payable absolutely. Payment depends upon a crucial contingency: the continued collection of receipts by Epazz from its customers. TVT [TVT Capital] is only entitled to recover 15% of Epazz’s daily receipts, and if Epazz’s sales decline or cease the receipts purchased amounts might never be paid in full. See counterclaims, Exhs. A-C at 1. The agreements specifically provide that “Payments made to FUNDER in respect to the full amount of the Receipts shall be conditioned upon Merchant’s sale of products and services and the payment therefore by Merchant’s customers in the manner provided in Section 1.1.” Id. at 3 § 1.9.
Defendants’ argument that the actual daily payments ensure that TVT will be paid the full receipts purchased amounts within approximately 61 to 180 business days, id. ¶¶ 33-47, is contradicted by the reconciliation provisions which provide if the daily payments are greater than 15% of Epazz’s daily receipts, TVT must credit the difference to Epazz, thus limiting Epazz’s obligation to 15% of daily receipts. No allegation is made that TVT ever denied Epazz’s request to reconcile the daily payments. TVT’s right to collect the receipts purchased amounts from Epazz is in fact contingent on Epazz’s continued collection of receipts. See Kardovich v. Pfizer, Inc., 97 F. Supp. 3d 131, 140 (E.D.N.Y. 2015), quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 147 (2d Cir. 2011) (“Where a conclusory allegation in the complaint is contradicted by a document attached to the complaint, the document controls and the allegation is not accepted as true”).
None of the defendants’ arguments, Counterclaims ¶¶ 51-109, change the fact that whether the receipts purchased amounts will be paid in full, or when they will be paid, cannot be known because payment is contingent on Epazz generating sufficient receipts from its customers; and Epazz, rather than TVT, controls whether daily payments will be reconciled.
The decision relies heavily on the reconciliation clause common to merchant cash advance agreements, whereby merchants can adjust their daily ACH amounts to correlate with their actual sales activity. This concept is explained at length in the Merchant Cash Advance Basics training course.
Furthermore, the court was incredulous over the defendants’ claim that they actually wanted loans but were instead fraudulently induced into purchase agreements.
Defendants do not claim that they were misled with regard to the amount of their payment obligation, only that they were misled into believing that their repayment obligation would be absolute when it actually is contingent. Their injury from that is unclear.
In short, the judge suggests that entering into a loan would’ve been worse because it was absolutely repayable, whereas the purchase agreement was not. So how could they have been damaged?
The entire decision surrounding all the claims can be downloaded here.
The case is Colonial Funding Network, Inc. as servicing provider for TVT Capital, LLC v. Epazz, Inc. Cynergy Corporation, and Shaun Passley a/k/a Shaun A. Passley in the United States District Court’s Southern District of New York. Case: 1:16-cv-05948-LLS.
Defendants Shaun Passley and Epazz also lost challenges in another merchant cash advance case in the New York Supreme Court.
Are You a Loan Broker? You Need to Be Licensed in Vermont
May 12, 2017
Loan broker licensing may have gotten stalled in New York, but in Vermont, it’s the law. Governor Phil Scott made H. 182 official on May 4th, regulating everyone engaged in loan solicitation with prospective Vermont borrowers. Specifically this applies to anyone that:
- offers, solicits, brokers, directly or indirectly arranges, places, or finds a loan for a prospective Vermont borrower;
- engages in any activity intended to assist a prospective Vermont borrower in obtaining a loan, including lead generation;
- arranges, in whole or in part, a loan through a third party, regardless of whether approval, acceptance, or ratification by the third party is necessary to create a legal obligation for the third party, through any method, including mail, telephone, Internet, or any electronic means;
- or advertises or causes to be advertised in Vermont a loan or any of the services described in (i) –(iii). This license does not include the authority to engage in the business of making loans.
The loan solicitation law is separate from a Commercial Lender License, which already requires licensing to solicit business loans under $1 million, as it covers:
- Any company or person who engages solely in the business of making commercial loans of money, credit, goods, or things in action and charges, contracts for or receives on any such loan interest, a finance charge, discount, or consideration therefore. Commercial loans do not include a loan or extension of credit secured in whole or in part by an owner occupied one-to-four unit dwelling. [Note: The company’s main office must be licensed as a commercial lender prior to, or simultaneously with, the filing of a branch commercial lender license.]
- Each location, whether located in Vermont or not, desiring to engage in the business of making commercial loans in Vermont must obtain a separate license by filing a Form MU3 through the NMLS.
- A commercial loan solicited or made by mail, telephone or electronic means to a Vermont business is subject to licensing notwithstanding where the loan is legally made. No person may engage in the business of soliciting or making commercial loans by mail, telephone or electronic means in Vermont unless duly licensed.
Brokers and lead generators should take a good hard look at their marketing since it may not matter if the customer ultimately is referred to a non-lender such as an equipment lessor or a merchant cash advance company if loans are even an option among many.
According to the law, each loan solicitation licensee shall include clearly and conspicuously in all advertisements of loans and solicitations of leads, the following statement:
“THIS IS A LOAN SOLICITATION ONLY. [INSERT LICENSEE NAME] IS NOT THE LENDER. INFORMATION RECEIVED WILL BE SHARED WITH ONE OR MORE THIRD PARTIES IN CONNECTION WITH YOUR LOAN INQUIRY. THE LENDER MAY NOT BE SUBJECT TO ALL VERMONT LENDING LAWS. THE LENDER MAY BE SUBJECT TO FEDERAL LENDING LAWS.”
A loan solicitation license cost $1,100.00 (includes a $500.00 Licensing Fee, a $500.00 Investigation Fee; and the $100 NMLS processing fee), according to the government website.
If you’re sending mailers to Vermont businesses, calling them or even marketing to them on the Internet, you should speak with an attorney about both the loan solicitation license and commercial lenders license first.
Exercise of Ordinary Intelligence Would’ve Revealed Merchant Cash Advance Contract Was Not a Loan, Court Says
May 9, 2017
In the New York Supreme Court, the Honorable Linda S. Jamieson was tasked with ruling on twelve causes of action in a merchant cash advance contract case. While the 18-page decision covers a lot of ground, one notable section was the plaintiffs’ request for rescission based on “misrepresentations or unilateral mistake” and “damages for fraudulent inducement.” According to the order, the plaintiffs, K9 Bytes, Inc., Epazz, Inc., Strantin, Inc., MS Health Inc., and Shaun Passley, “claim that the defendants misled them by representing that they were entering into “loans governed by usury laws,” but instead caused them “to enter into ‘merchant agreements.'” Exhibits on the docket attached by the plaintiffs purport to demonstrate the word loan being used in communications, though the judge noted that the plaintiffs failed to identify how the individuals in those communications specifically attributed to the defendants. Nevertheless, the judge was unmoved by plaintiffs given the overt language spelled out in the contract itself.
[The plaintiffs] state that they would not have knowingly entered into merchant agreements, because what they really wanted were loans. Indeed, plaintiffs allege that “the word ‘purchase’ or ‘sale’ would have caused Passley to decline a transaction with [defendants] because a loan – the product Passley wanted to obtain – is not a purchase or sale.”
A review of the contracts in this action shows that not only do they all clearly state that they involve purchases or sales, but they all expressly state they are not loans. Even if someone were confused by the contracts, or did not understand the obligation or the process, by reading the documents, one would grasp immediately that they certainly were not straightforward loans. The very first heading on the page was “Merchant Agreement,” and the second heading says “Purchase and Sale of Future Receivables.”
[…] For plaintiffs to state that they would not have entered into a purchase or sale if they had known that that is what they were doing is utterly undermined by the documents themselves. As the Second Department has held, in Karsanow v. Kuehlewein, 232 A.D.2d 458, 459, 648 NY.S.2d 465, 466 (2d Dept. 1996), “the subject provision was clearly set out in the … agreements, and where a party has the means available to him of knowing by the exercise of ordinary intelligence the truth or real quality of the subject of the representation, he must make use of those means or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations.” So too here, plaintiffs had the means to understand that the agreements set forth that they were not loans. As it has long been settled that a party is bound by that which it signs, the Court finds that the ninth cause of action, for recission based on misrepresentation or mistake, and the tenth cause of action, for fraudulent inducement based on misrepresentation, must be dismissed as a matter of law. Pimpinello v. Swift & Co., 253 N.Y. 159, 162-63 (1930) (“the signer of a deed or other instrument, expressive of a jural act, is conclusively bound thereby. That his mind never gave asset to the terms expressed is not material. If the signer could read the instrument, not to have read it was gross negligence; if he could not have read it, not to procure it to be read was equally negligent; in either case the writing binds him.”).
The plaintiffs are likely to be disappointed with the rest of the ruling as well. The decision can be found in the New York Supreme Court in the County of Westchester under Index Number 54755/2016 or can be downloaded in full here.
OnDeck On the Path to Profitability?
May 8, 2017
In their earnings announcement this morning, OnDeck predicted that GAAP profitability would be achieved in the second half of 2017. For now, the GAAP net loss in Q1 was only $11.1 million, down from $36.5 million in Q4. The company originated $573 million worth of loans for the quarter.
OnDeck has been under pressure from at least one major shareholder to make changes. “We’re talking about a stock that is down 75 percent to 80 percent from its IPO price. You’re not going to find a lot of happy campers in that situation. Shareholders are going to ask tough questions,” Mario Cibelli, Marathon Partners managing member, told deBanked last month.
OnDeck has been underperforming just about all of its peers year-to-date according to the deBanked Tracker. The company’s stock price has been flat on the year, whereas Square, which does payments in addition to business loans, is up 45%.
The Marketplace, once a defining part of the tech-based lender’s strategy, is being almost completely phased out. “Loans sold or designated as held for sale through OnDeck Marketplace represented 9.0% of term loan originations in the first quarter of 2017 compared to 25.9% of term loan originations in the comparable prior year period,” their report said. OnDeck plans to reduce the amount of loans sold through their marketplace to less than 5% for the remainder of 2017.
“The Provision Rate in the first quarter of 2017 was 8.7% compared to 5.8% in the prior year period.”
“The 15+ Day Delinquency Ratio increased to 7.8% in the first quarter of 2017 from 5.7% in the prior year period and from 6.6% in the fourth quarter of 2016 due primarily to the continued seasoning of the portfolio.”
“The Cost of Funds Rate during the first quarter of 2017 increased to 5.9% from 5.5% in the prior year period primarily due to the increase in short-term rates.”
“The Net Charge-off rate increased to 14.9% in the first quarter of 2017 from 11.2% in the prior year period and increased sequentially from 14.2%.”
“Combined with the company’s prior workforce reduction, total headcount at the end of the second quarter of 2017 is expected to be approximately 27% lower than December 31, 2016 levels, due to both involuntary terminations and actual and scheduled attrition.”
MCA Company Wins Case After Judge Actually Reads the Contract
May 5, 2017
An explosive New York Supreme Court decision in December against a merchant cash advance company just lost some of its bite, thanks to a decision handed down by the Honorable Catherine M. Bartlett in Orange County.
By all accounts, plaintiff Merchant Funding Services, LLC (“MFS”) had reason to be worried when Long Island attorney Amos Weinberg appeared on behalf of defendants Micromanos Corporation and Atsumassa Tochisako. MFS and Weinberg squared off last year in an almost identical case when Weinberg represented a company named Volunteer Pharmacy, Inc. There, a Westchester County judge decided the agreement in question to be criminally usurious on its face, leaving no question of fact for a trier of fact to resolve. According to court records, Weinberg has been relying on that decision to bolster his legal arguments against other MCA agreements ever since.
But up in Orange County, less than an hour northwest of Westchester, the court there sided in favor of MFS on Thursday, even after being briefed on the Volunteer Pharmacy decision.
Defendants, citing Merchant Funding Services, LLC v. Volunteer Pharmacy Inc., 44 NYS3d 876 (Sup. Ct. Westchester. 2016), assert that a plenary action is not required in the circumstances of this case because the Secured Merchant Agreement is, on its face and as a matter of law, a criminally usurious loan. However, Defendants’ position is grounded on a dubious misreading of the Agreement.
Micromanos, like Volunteer Pharmacy, was seeking to vacate the confession of judgment entered against them by way of a motion rather than by filing an entirely new lawsuit.
Here, the judge not only rejected that the confession of judgment be vacated but she also admonished Micromanos for misleading the court over the actual wording of the contract in order to serve their argument.
The agreement on its face provided for MFS’s purchase of 15% of Micromanos’ future receipts until such time as the sum of $224,250 has been paid. Paragraph 1.8 of the Agreement recited the parties’ understanding – directly contrary to Defendants’ claims herein – that (1) MFS’ purchase price was being tendered in exchange for the specified amount of Micromanos’ future receipts, (2) that such purchase price “is not intended to be, nor shall it be construed as a loan from MFS to Merchant”, and (3) that payment by Micromanos to MFS “shall be conditioned upon Merchant’s sale of products and services and the payment therefore by Merchant’s customers…”
These provisions not withstanding, Defendants contend that the Addendum altered the essential nature of the Agreement by requiring a Daily Payment of $2,995.00 on pain of default, thereby eliminating any element of risk or contingency in the amount or timing of payment to MFS, and converting the Agreement into a criminally usurious loan bearing interest at the rate of 167% per annum. Not so. The Addendum expressly provided that the $2,995.00 Daily Payment was only “a good-faith approximation of the Specified Percentage” of 15% of Micromanos’ receipts, and that Micromanos was entitled to request a month-end reconciliation to ensure that the cumulative monthly payment did not exceed 15% of Micromanos’ receipts. Defendants’ contention that MFS was entitled under the Addendum to the $2,995.00 Daily Payment without being obliged to offer Micromanos a month-end reconciliation is founded on an incomplete and palpably misleading quotation of paragraph “d” of the Addendum.
According to Defendants, paragraph “d” states:
“The Merchant specifically acknowledges that ***the potential reconciliation*** [is] being provided to the Merchant as a courtesy, and MFS is under no obligation to provide same”.
As noted above, paragraph “d” actually states:
“The Merchant specifically acknowledges that: (I) the Daily Payment and the potential reconciliation discussed above are being provided to the Merchant as a courtesy, and that MFS is under no obligation to provide same, and (ii) if the Merchant fails to furnish the requested documentation within five (5) business days following the end of a calendar month, then MFS shall not effectuate the reconciliation discussed above.”
The Defendants’ omission fundamentally alters the meaning of paragraph “d”. Contrary to Defendants’ assertion, the gist of paragraph “d” is that the institution of the fixed Daily Payment plus month-end reconciliation mechanism as a substitute for Micromanos’ daily payment of 15% of its actual receipts was a non-obligatory courtesy. Paragraph “d” plainly does not enable MFS to require a $2,995.00 Daily Payment while concomitantly refusing Micromanos’ request for a reconciliation.
Defendants further contention that the Agreement as a matter of law eliminated all risk of hazard of nonpayment by placing Micromanos in default upon any material adverse change in its financial condition is not borne out by the language of the Agreement. Under Paragraphs 2.1 and 3.1 of the Agreement, Micromanos’ failure to report a material adverse change in its financial condition, not the adverse change itself, was defined as an event of default.
Therefore, the Secured Merchant Agreement is not on its face and as a matter of law a criminally usurious loan. Consequently, Defendants have failed to establish an exception to the general requirement that relief from a judgment entered against them upon the filing of an affidavit of confession of judgment must be sought by way of a separate plenary action.
It is therefore ORDERED, that Defendants’ motion is denied.
Alarmingly, court documents show that Micromanos attorney Amos Weinberg is relying on the same “incomplete and palpably misleading quotation” in other cases involving other merchant cash advance contracts to serve his arguments. Fortunately, in this case, the Honorable Catherine M. Bartlett compared his quotation of the contract to the actual language of the contract and saw they didn’t match up. While a decision from the Supreme Court in Orange County doesn’t mean that the matter is settled for good in New York State, it does potentially put the decision that arose from Volunteer Pharmacy on very shaky ground.
Merchant Funding Services, LLC v. Micromanos Corporation d/b/a Micromanos and Astsumassa Tochisako can be found in the New York Supreme Court under index number: EF000598-2017





























