Section 1071 is Back and The CFPB Wants to Know How Much It Will Cost You to Comply
August 25, 2020At some point in this century, small business finance companies will be expected to comply with Section 1071 of the Wall Street Reform and Consumer Protection Act that was passed in 2010.
In the wake of the ’08-’09 financial crisis (remember that?!), lawmakers passed the above act that has become colloquially known as Dodd-Frank. Section 1071 gave the Consumer Financial Protection Bureau the authority and the mandate to collect data from small business lenders (and similar companies).
The costs, risks, and challenges with rolling out this law have been discussed on deBanked for 5 years, yet little progress has been made to finally implement it. But it’s starting to move along and the CFPB would now like to know how expensive it will be for businesses to comply.
If you are engaged in small business finance, you should seriously consider submitting a response to their survey. The CFPB is specifically cataloging responses from merchant cash advance companies, fintech lenders, and equipment financiers.
“A Bad Solution in Search of a Problem”: SBFA’s Response to the New York Disclosure Bill
August 6, 2020“It’s actually shocking to me how tone deaf those who claim to represent our industry are when it comes to policy,” is how Steve Denis, Executive Director of the Small Business Finance Association, described the Innovative Lending Platform Association’s response to and influence over the drafting of bill A10118A/S5470B. Known as New York’s APR disclosure bill, S5470B has been passed by the state legislature, and if signed by Governor Cuomo, will require small business financing contracts to disclose the annual percentage rate as well as other uniform disclosures.
Speaking to deBanked over the phone, Denis expressed disappointment with both the bill as well as comments made by ILPA’s CEO, Scott Stewart, in a recent article.
“Small businesses in New York are struggling right now,” the Director noted. “They’re waking up every single day wondering if they should even stay open or close permanently, and companies and organizations in our space are using their resources to push a disclosure bill that nobody has asked for. There’s no widespread issue with disclosure. There’s been no outpouring of complaints to regulators. No bad reviews on Trustpilot. This is a really bad solution in search of a problem. We have real problems right now, we should be coming together as an industry to help solve them. We want to make sure that capital is available to small businesses on the other side of this pandemic, and this group of tone deaf companies are spending resources trying to push a meaningless disclosure bill that’s just going to hurt the access to capital for real small businesses who are grinding and trying to figure out how to stay open. It’s unbelievable.”
The SBFA showed deBanked a list of issues and complaints made to the New York legislature regarding S5470B. According to the trade group, these were largely ignored and the bill was pushed through with the issues left in. Among these were problems relating to definitions and terms. No definition for the application process is included, nor is there one for a finance charge. As well as this, one senator was quoted using the term “double dipping” to refer to consumers refinancing debts that have prepayment penalties; which Denis said was “creating a whole new term that’s never been used or defined before, and applying it to commercial finance, something that’s never been done.”
Accompanying these complaints was one regarding how APR is calculated, as S5470B includes two different calculations for this, producing different results while not clearly defining when to use each.
When asked why he believes these issues were allowed to remain in the language of the bill, Denis was baffled.
“I think that the companies and organizations that support this legislation don’t fully understand what’s actually in the bill. […] 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.”
Denis’s fear going forward is that funders in New York will tighten up their channels going forward or cease funding entirely, given the increased riskiness of funding under the terms of S5470B if Cuomo signs it into law. Before that happens though, the Director mentioned that he believes there will be legal challenges to the bill in the future, saying that its wording is just too unclear and poorly drafted. Adding to this, Denis said that he believes many members of New York’s state government are aware that this bill is imperfect and were comfortable with the thought of it being edited once passed. Looking forward, Denis wants the SBFA to be deeply involved in those edits, saying that they’re willing to work with the Governor, the state assembly, and the New York Department of Financial Services.
“We’re for disclosure, we think there should be standard disclosure. … Our message to the Governor’s office is ‘Let’s take a step back.’ The Department of Financial Services needs to look at our industry, they need to get to know our industry. They are the experts that understand the space, they understand disclosure, and they understand what they need to do to bring responsible lending to New Yorkers. And we would like to work with the NYDFS and a broader industry to put forward a bill that’s led by the Governor and the Governor’s office that brings meaningful disclosure and meaningful safeguards to this industry.”
FTC Commissioner Rohit Chopra on Merchant Cash Advances
August 3, 2020Following recent lawsuits filed by the FTC, Commissioner Rohit Chopra made the following statements earlier today in an announcement about merchant cash advances:
As the Commission proceeds into litigation in these matters and further studies this market, I hope that we will uncover additional information about business practices in this opaque industry. In particular, we should closely scrutinize the marketing claim that these payday-style products are “flexible,” with payments contingent on the credit card receivables of a small business. In reality, this structure may be a sham, since many of these products require fixed daily payments, and lenders can file “confessions of judgment” upon any slowdown in payments, with no notice or due process for borrowers.
This raises serious questions as to whether these “merchant cash advance” products are actually closed-end installment loans, subject to federal and state protections including anti-discrimination laws, such as the Equal Credit Opportunity Act, and usury caps. The stakes are high for millions of small businesses.
Shopify Originates $153M in MCAs and Loans in Q2
July 29, 2020Shopify had a monster 2nd quarter. The e-commerce giant generated $36M in profit on $714.3M in revenue. As part of that the company originated $153 million worth of loans and merchant cash advances, only slightly down from the $162.4M in Q1. Still that figure was up by 65% year-over-year (and was more than 2x the volume originated by OnDeck).
The company has offered capital to its US merchants since 2016 and recently begun doing the same with its UK and Canadian merchants starting this past March and April respectively, the company revealed.
Shopify CFO Amy Shapero said that company had maintained loss ratios “in line with historical periods,” despite COVID. “Access to capital is even tougher in times like these, which makes it even more important to continue lowering this barrier by making it quick and easy so merchants can focus on growing their business,” Shapero stated.
“Our Model Disclosure Legislation”: ILPA’s CEO on New York’s APR disclosure bill
July 28, 2020Late last week the New York State legislature voted to pass A10118A/S5470B, a bill that might lead to greater clarity and consumer knowledge according to Scott Stewart, CEO of the Innovative Lending Platform Association, a trade association of small business lenders.
Referring to it as “our model disclosure legislation,” Stewart explained in a phone call the work that the ILPA put in to help the bill through as well as what sort of impacts can be expected from S5470B.
“The implications are that small businesses, certainly in New York to begin with, but we think throughout the country, will have the opportunity to really see, understand, and compare various different sources and products for financing their small businesses in terms of their expansion and success. That’s something we’re very proud of and I think that’s something the small business borrower really deserves to see. They deserve to see and understand exactly what they’re doing and when they’re taking out financing products for their businesses.”
What exactly these business owners will understand better relates to the details of the bill, which requires small business financing contracts to disclose the annual percentage rate as well as other uniform disclosures. If signed by New York Governor Cuomo, the bill could have ramifications on small business lenders, MCA, and factoring providers.

ILPA, founded in 2016 and comprised by the likes of Kabbage, OnDeck, and BlueVine; worked alongside legislators to help with the drafting of the bill, assisting with the wording so that it reflects their own SMART Box initiative. This being a form offered by ILPA which lists a number of metrics worth considering when seeking small business financing.
“In January 2019, our team came together and decided that it made sense in the wake of 1235 in California to take a proactive approach to codify SMART Box as legislation in a state, and we selected New York because we felt we had a favorable legislature there,” Stewart said. “I think it’s an incredible achievement. You see the big margins that it passed by in both the Assembly and the Senate and we’re very, very proud of that. I think it really speaks to our cooperative approach to building legislation. And now, as we move toward the implementation phase, we’re going to be in a place where, hopefully in the next six months or so, small businesses will begin receiving really clear disclosures on the capital and credit that they’re trying to take out.”
As noted though, the bill must be signed by Governor Cuomo before becoming law, and then it will affect New York only. Beyond the Empire State though, Stewart is hopeful that ILPA will be able to implement the terms of S5470B in other states.
“Now that we have hopefully harmonized the legislative landscape between California, with 1235, and New York; hopefully we’ll be able to export that to other states. We don’t have any accurate plans at this time to do that, but we feel like if two of the larger states in the nation have very similar disclosure regimes then we’re on the track toward seeing this nationwide.”
Interview With Chad Otar, CEO of Lending Valley
July 28, 2020I recently spoke with Lending Valley CEO Chad Otar, who told us that not only is his funding company still working remotely, but that he’ll probably never return to an office ever again. Watch below:
MCA in Conversation: Where do we go from here?
July 27, 2020
The Expectations and Reality
Way back in March and April, the consensus appeared to be an expected return to “normal” by June, while areas hit hardest by COVID-19 would return by July. Yet here we are, teeter-tottering on the fence of moving forward. Now, our country is faced with the possibility of a second wave of shutdowns, rising crime, riots, a fourth stimulus, and funders whose workforce remains remote or have yet to resume funding. The proverbial “goal post” has moved yet again, and with it the expectations of many of us in the industry. Over the past few weeks, I had the opportunity to speak with a number of our referral partners to gauge their thoughts on the current state of our industry. A common theme in our discussions was the desire for validation. Not just as a business owner, but as an employer. They wanted to be reassured that they were taking the best steps forward and not alone in their decision making. To help those seeking the same validation, here is what the majority had to say:
- Yes, all had to terminate or furlough staff on various levels.
- Yes, all adjusted marketing budgets.
- Yes, all are struggling with managing remote employees.
- Yes, all are finding it harder to place files.
- Yes, all are seeing interruptions in relationships with funders and merchants alike.
- Yes, all are competing against the Government’s low-cost products.
- Yes, all are having files killed in late stages of funding or having offers adjusted.
- Yes, all are struggling to predict what comes next.
- Yes, all are managing unrealistic expectations from clients.
- Yes, all are having merchants walk away from fair and just offers.
- Yes, all are struggling to remain motivated.
- And yes, all of you are doing the best you can!
The New Normal
The Word Cloud below describes the state of the MCA industry using our partners’ own words. I find that the overall thoughts are best visualized by taking a step back to see which stand out the most. Our conversation was focused on the industry as a whole, then a discussion specific to Elevate Funding and how we’ve pivoted during these unprecedented times. As you can see, some of the keywords that stand out the most are; merchants, PPP, offers, funders, and marketing.

Much of the conversations focused around merchants and their new funding expectations. Each partner I spoke with agreed the demand for money is there, but the willingness to move forward on offers was very low. This reluctance is driven in part by low cost expectations based on PPP and SBA product rates, as well as uncertainty over increased debt in an unstable market. We’re also seeing a change in merchant demographics, where the mid-sized small businesses who previously did not qualify for SBA loans, now have access to these products. As a result, the remaining merchants whose best option is an MCA are now located on the opposite extreme ends of the spectrum; either those who did not qualify for PPP or SBA EIDL, and the large-scale businesses whose lines were revoked by their bank. Our response as a company has been to adjust our offers to better suit merchant’s expectations, and to shift from underwriting a business owner’s activity to underwriting the consumers’ activity. Monitoring government restrictions down to a county level countrywide and understanding consumer trends has enabled us to further mitigate risk during a time of uncertainty, and not only fund deals, but fund deals that will perform.
Meanwhile, our industry is seeing credit profiles and business profiles that have never applied in our space before, as a decreasing number of providers are available to service current merchants. During our conversations, some expressed a concern over lack of A-paper funders. Many of whom have either paused funding or entirely moved over to servicing PPP products. Another concern was the mental toll of having deals fall apart at the eleventh hour due to fast changing qualifications, variations in merchant revenue, or funders deciding to pause funding at inopportune times. These factors combined with the increasingly common “bait-and-switch” technique of funders providing a large offer, only to change to a much lower offer in the final stages of funding, has left many broker shops and ISOs feeling very discouraged.
The Path Upward and Onward
The conversations were not entirely negative, as new marketing opportunities have opened up with the goliaths of the industry such as Kabbage, OnDeck, Lendio, and Square shifting their marketing dollars towards PPP and SBA products. Many folks are finding their advertising dollars across marketing platforms are stretching further, particularly with search engine optimization. While this opens up an increased likelihood of fraud and in applicants who fall below qualifications, it has enabled many shops to operate on an even playing field with inbound marketing. Many small funders, including Elevate Funding, have already created new products to cater to lower revenue merchants and those directly affected by COVID-19. We’ve already received tremendous response on this change from partners and merchants alike. As merchants slowly shift back towards alternative financing solutions once the government runs out of money for its loan products, we remain optimistic there will be increased opportunities in terms of both volume and quality.
While the Word Cloud highlighted a number of topics, it also highlighted important topics that were not discussed; Expectations, Renewals, Commission, Aggression, and Repositioning.
Expectations in particular, is of note as it is different from opinions. Everyone has an opinion, but there is a tremendous sense of uncertainty going forward and it’s very difficult to create expectations or goals when forecasting is not possible. Many companies are doing away with forecasting models altogether, and switching to a dashboard for production goals and expectations based on real time data.
The drastic change we’re seeing now should demonstrate the importance of renewals and customer retention. Neither of which were brought up during all of my partner discussions. Over time, the industry has moved away from a “residual mindset” to seeking instant gratification of new fundings in the quest for market share supremacy. As funders, we have to ask ourselves; Are we inadvertently throwing out the baby with the bathwater with new deal bonus structures and monthly promotional campaigns to drive new deal growth? Or perhaps, renewals were scarce in discussions because when funders said when funding stopped, they meant all funding? While I can’t speak to each funder’s operations, Elevate has continued to fund throughout the pandemic with established merchants and renewals being a saving grace to drive our momentum forward. In my opinion, client retention has never been more important during an ever-changing landscape.
I was shocked to see commission taking a backseat to approvals and banks during our discussion. But the focus has seemingly move towards approvals and conversions, which will in turn lead to commissions returning. Which brings me to Aggression and Repositioning. The state of our industry is a timid one, and it’s neither the fault of the funders or the merchants. Many experts will tell you that our space was overdue for a market correction of sorts, because many were far too aggressive for far too long. This aggression gave way to bad habits such as lowered underwriting standards and lack of consideration for merchant ability to repay. More and more funders are shifting back to “normal” guidelines, providing fair and just offers. This is an encouraging sign that we are finding our way back to sustainable positive growth. But it will take time for the industry to fully reposition itself. Something that is being delayed by products from the PPP, SBA, and the hope for a third round of stimulus.
But hope is on the horizon. While the pessimists will look at that word as a form of denial, I challenge all of you to take a glass half-full approach. Hope is the confident expectation of good. The change and adjustments we’re experiencing now are what life is all about, and will ultimately lend way to better things. If you’re in need of a little dose of hope, or want a sounding board to know you’re not alone through this, feel free to drop me a line at heather@elevatefunding.com.
Stay safe, be well, and do not lose hope.
New York State Legislature Passes Law That Requires APR Disclosure On Small Business Finance Contracts (Even If They’re Not Loans)
July 24, 2020Factoring companies and merchant cash advance providers may be in for a rude awakening in New York. The legislature there, in a matter of days, has rammed through a new law that requires APRs and other uniform disclosures be presented on commercial finance contracts… even if the agreements are not loans and even if one cannot be mathematically ascertained.
The law also makes New York’s Department of Financial Services (DFS) the overseer and regulatory authority of all such finance agreements. DFS can impose penalties for violations of the law, the language says.
The bill was passed through so quickly that unusual jargon remained in the final version, increasing the likelihood that there will be confusion during the roll-out. One such issue raised is the requirement that a capital provider disclose whether or not there is any “double dipping” going on in the transaction. The term led to a rather interesting debate on the Senate Floor where Senator George Borrello expounded that double dipping might be well understood at a party where potato chips are available but that it did not formally exist in finance and made little sense to have it written into law.
Senator Kevin Thomas, the senate sponsor of the bill, admitted that there was opposition to the “technicalities” of it by some industry groups like the Small Business Finance Association and that PayPal was one such particular company that had opposed it on that basis. Senator Borrello raised the concern that a similar law had already been passed in California and that even with all of their best minds, the state regulatory authorities had been unable to come up with a mutually agreed upon way to calculate APR for products in which there is no absolute time-frame. Thomas, acknowledging that, hoped that DFS would be able to come up with their own math.
APR as defined under Federal “Regulation Z”, which the New York law points to for its definition, does not permit any room for imprecision. The issue calls to mind a consent order that an online consumer lender (LendUp) entered into with the Consumer Financial Protection Bureau in 2016 after the agency accused the lender of understating its APR by only 1/10th of 1%. The penalty to LendUp was $1.8 million.
Providers of small business loans, MCAs, factoring and other types of commercial financing in New York would probably be well advised to consult an attorney for a legal analysis and plan of action for compliance with this law. The governor still needs to sign the bill and New York’s DFS still has to prepare for its new oversight role.
Passage of the law was celebrated by Funding Circle on social media and retweeted by Assemblyman Ken Zebrowski who sponsored the bill. The Responsible Business Lending Coalition simultaneously published a statement.