Is The COJ Law In Effect Yet?
July 18, 2019
The COJ bill passed, but where’s the governor’s signature?
When the legislature passes a bill in New York State, there’s a documented procedure on the Senate’s website for how it becomes law. If the legislature is still in session, the governor has only 10 days to sign it. If the passed bill is sent to the governor when the legislature is out of session, the governor has 30 days to sign it.
Caught in this process is S6395, the now-infamous COJ bill that prohibits the filing of a COJ in New York State against a non-New York resident. Its passage on the 18th of June and the closing of the legislative session theoretically put the bill on the 30-day track for the governor’s signature.
Indeed, the Farm Laborers Fair Labor Practices Act, which was debated on the Senate floor for several hours during the closing few days, has already been signed. So too have other bills, but not the COJ bill whose deadline for a signature was perceived to be around now.
But such deadlines are a bit more fluid in practice, legislative insiders say. The act of “delivering” the bill to the governor is a step all on its own and the legislature can actually withhold its formal delivery to avoid setting the clock in motion.
According to an official who’s familiar with the process, it could be months before the dotted line is signed. The official, who asked not to be named, explained that upon the bill being delivered to the governor’s office, only then will Governor Andrew Cuomo have 10 days to sign it. The legislature can also technically withhold delivery up until the very end of the year. This, the official explained, is done to ensure that legislation is thoroughly vetted, with extra checks to guarantee that bills are not unconstitutional and that they’ll lead to no previously unforeseen consequences.
Cuomo has already signed a bill allowing Congress to access Trump’s state tax returns, a bill raising the tobacco & e-cig buying age to 21, a bill guaranteeing women equal pay, and many more. All of which means the COJ bill could be next at any moment or it could be sentenced to signature purgatory until the last business day of 2019.
As the public waits with bated breath, small business finance companies are already planning next steps. Ian Nadjari, the Managing Director of Riverstrong Capital Funding, who said that his office was “not feeling good about [the bill],” is planning to drop their use of COJs entirely and update the terms of their future contracts. Nadjari aims to continue business regardless of the impending changes, he said.
Uplyft Capital CEO Michael Massa, explained that the bill is just a “change that we’ll have to adapt to. Certain players will be okay if they understand how COJs work.”
Several small business funding CEOs explained to deBanked that they welcome S6395 with the belief that it will level the playing field. One asserted that it will “eliminate some of the bad practices in the market,” such as the “offensive, aggressive measures” taken by firms who filed COJs too quickly or potentially in bad faith.
That perception, that such practices are not only possible, but have occurred, has garnered attention far beyond New York State. On June 26, for example, several members of Congress held a hearing to discuss COJs and their impact to further support for a federal bill that would ban them from use nationwide. That bill has a quite a bit a ways to go before it ever potentially even comes up for a floor vote.
Star Fundraiser For 1 Global Capital Settles With The SEC
July 15, 2019
Henry J. “Trae” Wieniewitz, III was charged by the SEC on Monday for his role in allegedly selling unregistered securities in two companies, 1 Global Capital (the now defunct merchant cash advance provider) and Woodbridge Group of Companies (a purported real estate lending business revealed to be a $1.2 billion ponzi scheme).
“Wieniewitz and Wieniewitz Financial raised more than $11.4 million and reaped approximately $500,000 in commissions from unlawful sales of Woodbridge securities, and raised more than $53 million and obtained approximately $3 million in commissions from unlawful sales of 1 Global securities,” the SEC stated.
Wieniewitz was not a registered broker-dealer nor associated with a registered broker-dealer.
A settlement was announced simultaneously. “Wieniewitz and Wieniewitz Financial settled the SEC’s charges as to liability without admitting or denying the allegations, and agreed to be subject to injunctions, with the court to determine the amounts of disgorgement, interest, and penalties at a later date,” an SEC statement said.
Wieniewitz was not alone in selling investments in both 1 Global and Woodbridge.
Separately, the owner of Woodbridge and two former directors of the company were recently charged criminally.
No criminal charges have been brought to date in the 1 Global Capital saga. That could change. 1 Global Capital revealed in 2018 that it was being investigated by the US Attorney’s office. That along with the SEC investigation prompted the company to file for bankruptcy. The SEC subsequently brought civil charges.
Documents filed in the SEC case against 1 Global’s former owner, Carl Ruderman, have since revealed that at least one former employee had been approached by the FBI about the operations of 1 Global.
Last month, it appeared Ruderman and the SEC were heading towards a settlement.
One notable fact about 1 Global Capital is that the company participated in the largest merchant cash advance in history at $40 million. That transaction has become a point of significant controversy and litigation. The recipient of those funds, a conglomerate of car dealerships in California, have shut their doors.
Online Lenders Beat Credit Unions, Friends, and Family as Primary Source of Credit
July 14, 20197% of small businesses generating less than $5 million/year in revenue relied on online lenders as their primary source of credit in the last quarter, according to the latest Private Capital Access Index published by Pepperdine Graziado Business School. 3% relied on credit unions as their primary source and 6% relied on friends and family.
Banks were the most popular. 19% relied on large banks as their primary source of credit and 12% relied on community banks.
38% said they didn’t have any source of credit at all.
Sticking with the under $5 million/year segment, 45% of respondents explained that their primary source of credit had become so simply because they were able to qualify for it. 21% said their primary source became so because they couldn’t qualify for any other source.
Meanwhile, merchant cash advances, online business loans, and factors experienced among the lowest reported approval rates for businesses of all sizes. Of those businesses that applied for financing, the success rate in obtaining funds are as follows:
| Financing Type | Success Rate |
| Business credit card | 65% |
| Trade credit | 57% |
| Personal loan | 51% |
| Lease | 48% |
| Bank loan | 41% |
| Online lender | 38% |
| Merchant cash advance | 31% |
| Asset Based Lender | 28% |
| Factor | 23% |
| CDFI/Credit Union | 18% |
While bank loans came in at 41%, revenue was a major determining factor. 88.9% of businesses doing $5 million to $100 million/year in revenue successfully obtained a bank loan while only 31.6% of businesses doing less than $5 million/year in revenue successfully obtained a bank loan.
Confession of Judgment Bill Still Awaits Governor’s Signature
July 9, 2019
New York State Governor Andrew Cuomo will have only ten days to sign S6395, the bill that prohibits companies from entering Confessions of Judgment in New York against non-New York State debtors, once its delivered to him. Only two possible contingencies could prevent that from happening:
(1) An official veto
(2) a pocket veto
Neither is expected to take place. Reining in the use of COJs was an official part of the Governor’s 2019 justice agenda.
The law only requires that a debtor reside or have a place of business in a New York county and that the judgment only be filed and entered in that county. Whether the filing party is located in New York or Florida or Alaska makes no difference. For a personalized legal analysis, contact an attorney.
The law also only affects a narrow process, the entering of a COJ in New York. It does not prevent parties from filing lawsuits in New York.
As the bill requires the Governor’s signature to become law, the usage of COJs in New York has dwindled but has not disappeared. New York State court records examined by deBanked demonstrate that some companies are continuing to file COJs in New York against out-of-state debtors and that county clerks are continuing to honor them. However, a handful of debtors appear to be challenging previously entered COJs on the basis of S6395’s passage through the state legislature. It remains to be seen how fruitful such defenses might be.
In recent weeks, a number of companies in the small business finance industry have publicly announced that COJs will no longer be required going forward.
You can follow the bill’s path to the Governor’s office here.
This article has been updated to reflect that the deadline rules first require delivery to the Governor
Making it Work: CanaCap and the Case for Canada
July 5, 2019
What leads an alternative financer to establish their own business in Canada? For Evan Marmott and his partner Adam Benaroch, it was the level of opportunity that the country offered in comparison to United States, where the alternative funding industry had become bloated and saturated with funders and brokers alike by 2017, when the pair established CanaCap.
Holding over 30 years of experience in alternative finance between them, Marmott and Benaroch founded CanaCap with the intention of capitalizing off interested Canadian merchants that were much more receptive to the message of brokers and funders. Not being bombarded by constant emails and advertisements for quick loans, Marmott says, leads Canadian business owners to be more open-minded to discussing alternative funding with brokers, resulting in both a better understanding of the conditions of the financing as well as more time on the phone to make deals. And on top of this, the lack of a dominant player within the alternative funding world of Canada leads to a divided market share, allowing small and large firms alike to succeed.
Accompanying this advantage of time and space within the market is the quality of merchants found in Canada. Claiming that Canadian merchants generally perform better than American business owners when repaying debts, Marmott explains that funders operating north of the border can expect to have a “cleaner” portfolio.
And lastly, the level of product knowledge amongst potential customers appeared to be just right to Marmott and Benaroch. With the former noting how CanaCap is unique in its willingness to offer second positions to Canadian businesses, Marmott highlights how his company benefits from larger financers, such as OnDeck, who many of their customers would go to first, learn about the funding process, be denied funds, and then be picked up by CanaCap after further researching the industry.
With offices in both Montreal and New York, the latter of these being for CapCall, the American counterpart to CanaCap, Marmott is well-attuned to the differences between the two markets. And while he concedes that the downside of brokering in the Great White North is the 30% that is clipped from commissions due to currency exchange, he affirms that the savings from reduced marketing costs, providing better return on investment rates, offset this loss.
Altogether, the CEO makes a convincing case for why one should consider alternative financing in Canada. Taking the tack that the country provides a fresh slate of sorts to financers, where merchants have yet to be inundated with offers, promotions, and horror stories about the industry, Marmott and Benaroch have enjoyed success with their model of approving over 90% of their applicants and streamlining the application process as to increase turnaround times.
With plans to stay put for the foreseeable future, Marmott says that he’s “looking forward to funding small businesses” as his company continues to service the entire country and the alternative finance industry in Canada develops. A plan that doesn’t sound too bad, especially with signs pointing towards increased growth and further interest from merchants.
Merchant Advance Capital Rebrands to Merchant Growth
July 3, 2019
Merchant Advance Capital, which trumpets itself as Canada’s fastest and most transparent small business financier, is rebranding as Merchant Growth.
The company has offices in Vancouver, BC and Toronto, ON and was founded in 2009.
“I founded our company out of my apartment 10 years ago,” David Gens is quoted as saying in a company announcement. Gens is the company’s president & CEO. “Back then our mission was simply to provide credit to small businesses, and we did that by providing one product, called a ‘merchant advance’. Today, we offer a comprehensive suite of financing solutions delivered with unparalleled convenience. In doing so, our mission has expanded to allowing business owners to achieve unconstrained growth, while reducing the administrative stress of running a business. As we’ve transformed our focus from one credit product to this far-reaching mission, we felt the need for our name to reflect this. We are Merchant Growth.”
Gens has been an oft-quoted source in deBanked over the years. His company closed on a $30 million debt facility last year with Comvest Credit Partners.
Gens is also speaking at deBanked CONNECT Toronto on July 25, 2019. You can register to attend at www.debankedcanada.com.
2M7 Financial Solutions and the State of Alternative Funding in Canada
July 1, 2019
“What’s a cash advance?”
This is how Avi Bernstein, CEO of 2M7 Financial Solutions, recalled a typical conversation in 2008, when his company was founded in the Canadian market. According to him, customer knowledge of alternative financing methods was dismal, partly due to a handful of homogenous banks dominating the scene as well as a void of funders in the country.
Flash forward to 2019 and 2M7 is operating within a Canadian market that is much more trusting and knowledgeable of merchant cash advances, although it is not yet at the levels witnessed in the U.S.
“Low hanging fruit,” is how Bernstein describes the industry now, as small and medium-sized businesses are flocking to 2M7 and its contemporaries, which offer higher approval ratings and faster confirmation of funding than their more traditional counterparts. In fact, according to a 2018 study conducted by Smarter Loans, 24% of those Canadians surveyed stated that they sought their first loan with an alternative lender that year. As well as this, only 29% reported that they pursued funding from more established, traditional financial institutions and 85% of those that received financing confirmed their satisfaction.
Figures like these help to explain why the Canadian market has seen a rise in interest from foreign businesses in the previous five years. Greenbox Capital, First Down Funding, and Funding Circle are examples of those companies who have successfully implanted themselves within the market, a feat that Bernstein claims isn’t easy.
“It’s a different business,” he notes when comparing the market to that of the U.S. Listing the dissimilarities in market maturity levels, sales tactics, processing channels, and collection styles, as well as the currency exchange rate that’s to be considered, Bernstein says that he’s found those American funders who come to Canada unprepared never stay long enough to become a fixture of the industry.
Warning against half measures, Bernstein explains that “You’ve gotta put boots on the ground” if you want to succeed in Canada. Giving the impression that unless you’re willing to learn the rules applied in the market, hire people, and house them in an office north of the American border, Bernstein is keen to highlight what’s required of foreign companies looking with interest at Canada.
But it’s a risk-reward situation. The market is opening up as more funders enter it, and with the arrival of larger companies, such as OnDeck Capital, more resources are being devoted to raising awareness of alternative financing amongst Canadians.
Meanwhile, homogenous firms like 2M7 are continuing to grow in this developing market. Receiving an average of 200-300 applications for funds per month, 2M7 is capitalizing off opportunities by proving themselves to be open to a wider range of applications. Bernstein asserts that “we try to fund everything,” and that they keep an “open mind to every opportunity” that lands on their desk. Perhaps this is a mindset not shared by more conservative of funders in the industry, but, as Bernstein says, “we’re here, we’re funding, and we’re ready to rock n’ roll.”
You can meet Avi Bernstein and 2M7 at deBanked CONNECT Toronto on July 25th.
“Do It Better Than How You Learned It”: How Paul Pitcher Came To Be In Canada
June 27, 2019
Few kids who dream of running their own international business actually grow up to live that fantasy. Even fewer end up working alongside their childhood heroes. Paul Pitcher is doing both, and he’s loving every minute of it.
Growing up in Annapolis, Maryland, the Managing Partner at First Down Funding and SharpShooter Funding studied at Severn School and immersed himself in sport. Under the eye of his father, Pitcher began playing basketball and baseball at the age of 4. Golf came later, and it followed him into his young adult life as he played at a collegiate level while enrolled at the University of Tampa, where he studied International Marketing and Finance. And upon graduation, Pitcher landed a job in Washington D.C., working in sales for the Washington Wizards and Capitals.
Sports accompanied him in each phase of his life, so it comes as no surprise that it is entwined with his current business ventures.
After leaving the Regional Sales Manager position he held with the Wizards and Capitals, Pitcher became a broker, eventually establishing First Down in 2012 – seeing it as a solution to a problem many business owners across the country face: acquiring capital. Offering funds via merchant cash advances, First Down provides financial aid to small and medium-sized businesses.
And after enjoying success in the United States, lightning struck on June 6th, 2015. Out of the blue, over 25 Canadian business owners applied for funding from First Down. Chalking it up to ads First Down had placed across social media, Pitcher decided to dive into the new, northern market, but only after consulting with the only Canadian he knew, WWE Hall of Famer Bret ‘Hitman’ Hart.
Having met the wrestler in 1993, Pitcher gambled on Hart remembering the 10-years-old kid in the Looney Toons t-shirt that he took a photo with two decades ago. And it paid off. Following discussions of what First Down did and how it met the needs of the Canadian market, Hart partnered with the company and now serves as commissioner to SharpShooter, the Canadian arm of First Down.
With the backing of a hero from his youth behind him, Pitcher expanded beyond the borders of the US, and with this came further support from sports stars. Recent years have seen CJ Mosley of the New York Jets, Jacoby Jones of the Baltimore Ravens, and the Shogun Welterweight Champion Micah Terill partnering with Pitcher.
Noting that the spirit and culture of sport has definitely bled into First Down and SharpShooter from both his own personal life as well as the lives of those athletes that are partnered to it, Pitcher affirms that healthy competition is integral to both sport and business.
Believing that it’s just as important to win as it is to develop the environment you are in, Pitcher is in the funding market for the long-run. And it is exactly this that attracts him to Canada. Comparing it to Baltimore in his home state, he sees the Great White North as a region that is less saturated with funding firms like you would find in New York or Chicago, in other words, he sees it as a place of opportunity, where there is room to grow.
Of course, with such opportunity there are growing pains, like the populace’s level of product knowledge as well as the building of trust between business owners and SharpShooter, but Pitcher welcomes it. Emphasizing his love for competition, he calls for more firms like his to enter the market, be they big or small, as according to him, it could only help build upon the culture of non-bank funding that has taken root in Canada.
“Whatever you do, do it better than how you learned it,” are among the final words Pitcher leaves me with, and with the other closing remarks hinting at further expansion beyond Canada, the Managing Partner seems to be living by this maxim. Be it the education he picked up in Tampa, the lessons learnt in sales, or even a chance encounter with a childhood hero, Pitcher appears to be aiming to continually build and expand upon what he has experienced.
Paul Pitcher is also speaking on a sales and marketing strategies panel at deBanked CONNECT Toronto on July 25th alongside Smarter Loans President Vlad Sherbatov and SEO Consultant Paul Teitelman.
