LinkedIn Posts Are Turning Into Deals & Dollars

March 14, 2019
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LinkedIn

Villano LinkedInOn average, I sign up one ISO every time I post a message on LinkedIn, says Jennie Villano, VP of Business Development at Kalamata Capital Group. They don’t all end up submitting business, she adds, but overall it works. It costs her nothing more than her time and it produces results.

Villano is among the growing crowd of industry insiders attempting to convert social media posts into measurable business. With more than 600 million users on LinkedIn, there is no question about the potential to reach clients. The prevailing wisdom is that you need to be on social media and sharing, but share what exactly?

New Hampshire-based Everlasting Capital is building a window into the business lives of co-founders Josh Feinberg and Will Murphy. One of their recent social media posts focused on their search for a new office lease, while another was a video stream of Feinberg making a real live cold call. The rewards span the gamut, from merchants seeking funding to offers to speak professionally in front of large audiences. And it’s not just about them. “We have worked with our employees to get confident on camera which is making them a lot more comfortable on the phone,” Feinberg said.

Will Murphy video-photoAnthony Collin, CEO of New York-based Smart Business Funding, also attests to LinkedIn. “We definitely generate sales from posting online,” Collin shared, explaining that it was a mix of ISOs and merchants who reach out. Collin said that he and two others in the company meet weekly to generate ideas for the daily posts. They try to make the posts timely, either related to something going on in the industry or to current events, like national elections.

For Jennie Villano, it’s not always a sales pitch. She has posted about being a single mom and about how to keep an upbeat attitude. “Your co-workers, your friends. Are they positive, or are they always complaining?” Villano asks in the video. “Try to surround yourself with positive people who see the best in everything.” She’ll typically extend the offer to do business in the videos that she makes and shares, but not all of them. She shares 2-3 videos a week and her posts typically receive thousands of views.

SmartBiz LinkedIn postSometimes a video needs a little bit of priming to draw the viewer in. Everlasting Capital, for example, filmed an executive making a sales pitch in their conference room to company CEO Josh Feinberg. But it’s something you must watch, or so the title of the post suggests, because they say the executive drove 10 hours to the office for the opportunity.

Though other social networks are being used in full force by many industry players, LinkedIn is definitely a platform to consider. “We’ve gotten tremendous value from posting to LinkedIn,” Smart Business Funding’s Collin said.

The Art of Moving The Deal – When it becomes too high risk for you

February 27, 2019
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garbage removalOakNorth, a small and medium sized business lender and online bank, has mastered a strategy to avoid merchants from defaulting 100% of the time, according to a story published in Quartz. The strategy: tell the merchants at risk of defaulting to refinance their loans at a competitor.

“We’ve said [to merchants], ‘Go renegotiate with another bank and refinance,’” OakNorth co-founder Joel Perlman said at the Finovate Europe conference in London on February 14, according to the Quartz story. “And they’ve gone and refinanced and then a few months later they’ve gone into default.”

Perlman’s phrasing may sound a little harsh, but the practice of moving at-risk merchants to another funder is really not uncommon. In fact, it seems like a fairly common and well-understood concept.

CEO of Accord Business Funding Adam Beebe said that brokers will contact Accord when their merchant is up for renewal. And if Accord knows it can’t continue to fund the merchant – either because it has missed payments or because it has become overburdened with other debt – the broker will shop that undesirable merchant elsewhere.

The merchant goes to a new funder and Accord is pleased to be rid of the merchant and not have it default on Accord’s balance sheet. Beebe notes, however, that the new funder is made aware of the merchant’s financial situation and is able to handle the higher risk. Transparency, he says, is important, particularly in a scenario like this.

Similarly, Heather Francis, CEO of  Elevate Funding, said that she is more than happy for an ISO to move a stacking and defaulting merchant away from Elevate, as long as Elevate gets paid. Elevate only funds first position and Francis said they make it very clear to merchants that stacking (taking on additional funding from other sources before satisfying an existing contract) is not allowed.

“If a merchant is stacking, that’s not someone we want to work with,” Francis said.  “And if the [new] funder understands the high risk, then is fine.”

As long as nothing is being hidden from the new funder, then it seems this practice is just an element of how funding works.

From the broker side, Rob Addison, Managing Member of Sentra Funding, an ISO, said that when a funder knows it will not be renewing one of his merchants, they will ask him to take the merchant away.

Addison said that some funders are so eager to get rid of defaulting merchants that they will offer deals like reducing the merchant’s balance just to get the merchant away from them.

It may not sound nice to jettison a defaulting merchant, but if a funder can avoid a merchant defaulting on its dime, then in many cases, it will.

“We try to move a financially distressed merchant from from, say, an MCA to a longer term loan,” Addison said. “If they haven’t been stacked, they have options. If they have, it’s harder. But if they have something, like commercial property or equipment, there’s usually a [a funder] willing to step in.”

True Story: I Cold Called a Merchant

February 25, 2019
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Todd Stone Makes a Cold CallWhile visiting the office of Excel Capital in Manhattan on a reporting assignment, I saw a few open desks. They weren’t exactly empty, just available. There were phones, headsets, and computers all set up, just waiting for a salesperson to sit down and plug in. I pictured the salespeople I’ve previously profiled, smiling & dialing, as they say, contacting small businesses and delivering their best pitch. And for a moment, I imagined it was myself in one of those chairs. A funny thought perhaps if you’ve gotten to know me, but it’s not an uncommon curiosity for a reporter to try and channel a source’s mindset.

Excel CEO Chad Otar obviously caught that flashing glimmer in my eyes, because the next thing I knew he invited me to sit down and make a call myself, a completely cold one… to a merchant.

My instinct was to just observe, but the journalist in me unconsciously accepted the invitation. Before I knew what I was getting myself into, I was sitting at Chad’s desk in the CEO chair, reviewing sales scripts that were handed to me. I read two of them and realized that they were fairly different in tone. The first said something like “I’m calling from the back office and it appears that you once had an interest in funding. I’m checking to see if you still do.” The other one was far more direct. It explained a special offer to prospective clients and it finished with a question, “What are you seeking capital for?”

Excel Capital Management
Above: A section of Excel Capital’s office. At left is the company’s CEO Chad Otar

Chad recommended the more direct route, the one I liked more as well. I didn’t like the idea of being in a “back office.” It sounds so distant, so non-urgent. And from my understanding, a sales call should sound urgent, without being too aggressive either. I knew I had to strike the right balance. I looked at the bolder script and practiced reading it a few times out loud. The script started with “Hello, my name is [John Doe.]” But I thought, “I think ‘hello’ is too formal. ‘Hi’ works better for me.” And I also thought that using just my first name might be more familiar and less intimidating than my full name. So I decided to just use my first name. Note that when introducing myself on the phone at deBanked, I always use my full name because I aim to be very intimidating. I’m totally kidding!  

Back to my first EVER cold call. After rehearsing the script a few times and letting everyone around me know that this was my first cold call and a really big deal for me, I picked up the phone and I started to dial. “Hello, this is Kathy” a voice beamed from the other end of the phone. I said “Hi Kathy” and I started to read the script. Then I stopped. For a moment, it was just silent. She didn’t hang up! YES! She also didn’t curse at me or ask that I not call her back again. She didn’t even politely excuse herself. Instead, she asked a few clarifying questions.

“Where are you calling from?”

I could answer that! Except that I made a slight mistake. I called the company Excel Credit, instead of the correct Excel Capital. A subtle enough error, I thought, so I chose not to acknowledge it. And since I’ve been writing about companies like Excel Capital for a little while now, I felt comfortable enough to provide a brief sentence to this woman about what Excel Capital does. “We offer funding to small businesses throughout the US,” I said.  I thought this would be a good opportunity to correct my earlier error, so I slipped in “we’re also known as Excel Capital.” That could have sounded shady. But I don’t think she heard it that way.

“How did you find us?” she asked.

“Wow,” I thought. “This is turning into a real conversation!” I didn’t know how her info had been obtained, so I just said  “I get lists from my boss and I don’t know exactly how this list was obtained.”

Smooth…

Chad said something to me about previous funding, so I then added: “We got this list of businesses that have previously been funded.”

At this point, I thought to myself “Why don’t you ask a question now?” So I went down to the next question on the script sheet and I asked in a “just happen to be curious” way: “Is there a certain amount that you need?”

Boom… Time to cut my tie and put me on the board folks. This deal is practically closed!

“That would be the owner who would know about that,” Kathy said.

Uh-oh. I wasn’t even on the phone with the owner. I wasn’t speaking to the decision maker. But for my first cold call ever, I felt pretty good about it. I gave Kathy Excel’s number and yes, my full name, and I feel like I helped warm up this potential client. They could call back and say that they (Me!) spoke with Kathy. My first cold call wasn’t so bad, and honestly, I’m kind of ready to make 200 more! Just kidding.

Deal Flow in the Heartland — From Mississippi and Beyond

February 23, 2019
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This story appeared in deBanked’s Jan/Feb 2019 magazine issue. To receive copies in print, SUBSCRIBE FREE

deBanked January February 2019 Cover Snippet

deal flow in the heartlandThe political, cultural and economic abyss that separates the heartland from the coasts seems to grow deeper and wider with each passing day, and trying to reconcile the disparities can feel nearly hopeless. But differences among geographic locations aren’t nearly so well-defined or as troubling in the alternative small-business funding industry. What’s more, business opportunities can arise when localities differ.

First the lay of the land: Members of the alt finance community agree that funders and brokers are concentrated in just a few geographic locales—Greater New York City, Southern California and South Florida. Those three areas probably generate more than 75 percent of the industry’s volume, according to Jared Weitz, CEO of United Capital Source and one of three co-chairs of the broker council recently formed by the Small Business Finance Association (SBFA).

Sorting out how the industry differs in various regions can prove challenging. The Internet is erasing regional quirks and alleviating the need for physical proximity, says Steve Denis, SBFA executive director. What’s more, every ISO and funder develops a slightly different way of doing business regardless of location, he notes.

However, to a great degree it’s a matter of tweaking a single general outline for navigating the industry no matter where the office or client is based. That’s partially because many members of the industry conduct business in every state or nearly every state.

Sioux Falls, SD
Sioux Falls, SD – Home to Expansion Capital Group

That said, old-fashioned, small-town ethics can sometimes seem closer to the surface in shops operating far from the coasts. “We’re focused on the values of our organization—like doing what we say we’re going to do, maintains Tim Mages, chief financial officer at Expansion Capital Group, a funder and broker based in Sioux Falls, S.D. “Some of that maybe comes from the Midwest culture or upbringing.”

Outside the major population centers, the industry occasionally seems a little more “laid-back.” In a light-hearted example of a relaxed heartland approach to the alt funding business, Lance Stevens, an attorney who’s a co-founder of Brandon, Miss.-based TransMark Funding, claims he can underwrite a deal while driving his golf cart and listening to Bon Jovi—all while maintaining his under 5 handicap.

Everything can seem a little more slow in the heartland, where people have time to stop and say hello to strangers, says Weitz. “Some folks are like, ‘Hey, my mailbox is three miles from my house, I check my mail once a week. I do not email. I do not fax,’ ” he observes. “It’s a nice change.”

Interactions are often more informal between the coasts. “Being in the Midwest we don’t use a lot of the lingo and terminology from this space, such as ‘stacking,’” says Austin Moss, a managing partner at Strategic Capital in Overland Park, Kan. That lack of jargon may be good or bad, he admits, but instead the staff speaks in a more general, even “holistic,” financial language.

Then there’s the occasional need for the human touch in the heartland. Deals there are sometimes sealed in person, with an office-park conference room substituting for the community bank building on the town square where merchant used to take out loans. “It’s not a widespread trend, but a handful of the ISOs we do business with actually do face-to-face solicitation,” says Mike Ballases, CEO of Houston-based Accord Business Funding.

In line with that mini-trend, an ISO based in Southern California operates a Texas office that specializes in face-to-face encounters, according to Aldo Castro, Accord’s former vice president of sales and marketing. “It’s rather meaningful here,” he says of using the practice in Texas. “You get on the road and shake a hand. They put a face to a name.”

Overland Park, Kansas
Overland Park, KS – Home to Strategic Capital

The process can work in reverse, too. A few of the larger local companies seeking funding from Strategic Capital make the journey to the broker-funder’s Overland Park, Kan., offices, Moss says. Bankers who serve as referral partners also like the opportunity to meet in person, he observes.

The personal encounters often strike Moss as “refreshing,” he admits. That’s because the vast majority of the company’s deals occur online and by phone and fax—all without ever seeing the client in person.

Although the desire for personal contact arises from time to time, most heartland deals don’t hinge upon it. “It’s not a big number, but we see it,” Ballases says of face-to-face meetings. “Could it be the wave of the future? Absolutely not.”

Moreover, for some in the industry, the need for face-to-face discussions barely registers. It’s just not about meeting in person, according to Mages. Instead, he cites the importance of other factors. “Speed, convenience and service are the key differentiators, and that’s all driven by data and analytics,” he declares. Partnerships also drive the company’s business, he notes.

Luck outweighs geography, too, in Mages’ view. “It’s more an issue of right place, right time,” he contends. Deals occur primarily when funders manage to attract business owners’ attention at exactly the time when capital’s needed, he contends.

old country mailboxBesides, lots of people tend to think in wide-ranging ways these days instead of in narrow, provincial modes, Mages continues. At Expansion Capital Group, he notes, executives have differing points of view because they come from commercial banking, investment banking, the Small Business Administration lending program and the credit card industry.

At the same time, people tend to take an increasingly cosmopolitan approach to their jobs, according to Mages. He notes that executives at his company maintain contacts across the continent, often forged in earlier chapters of their careers.

Meanwhile, well-trained employees can use a phone call to gather the details they need and establish a consultative relationship without a thought for geography or the need for face-to-face meetings, Mages says.

However, geography can indeed play a role at least once in a while. In a few cases merchants prefer a funder with an address across town or at least in the home state. Sometimes business owners and referral partners choose local brokers or funders simply because their names sound familiar.

Strategic Capital, for example, does more business at home than anywhere else, Moss says. The company’s headquarters is in the portion of greater Kansas City that spills over from Missouri into the state of Kansas, making the location convenient to a major population center.

But despite the massive size of greater Kansas City, Strategic Capital remains the only alternative small-business funding option in the area—there just aren’t any other local providers, Moss says. It’s not like New York, where banks and merchants can choose from among many brokers and funders, he says.

That trend toward being the only game in town or one of just a few can hold true for most companies in the heartland, Moss maintains. A broker or funder based in Denver, for example, would probably have higher volume there than anywhere else, he notes.

“WE WORK WITH JUST ABOUT ALL THE BANKS IN THE AREA, AND EVERYONE KNOWS WHO WE ARE”

Several reasons explain that geographic bias, Moss continues. “The employees live there and have contacts, and we’re part of the local associations and chambers,” he notes. “We work with just about all the banks in the area, and everyone knows who we are.” The company also handles local government bonds and local construction projects, he says.

Mages offers a different perspective. Only a few small-business owners in South Dakota choose Expansion Capital Group because they prefer dealing with a Midwestern company or because they’ve seen local press coverage or heard Expansion’s recruiting ads on the radio, he maintains.

Houston, TX
Houston, TX – Home to Accord Business Funding

Hometown, home state or regional preferences aside, executives at Accord emphasize the importance of the small-town approach of knowing their customers as well possible. For Ballases—the Accord chairman who started the company with Adam Beebe, who now serves as CEO—that means combining personal and impersonal approaches to underwriting.

Ballases views funders and brokers as falling into three categories. Some choose a personal, hands-on approach and don’t rely upon algorithms. A second category emphasizes automation. A third blends the personal and the automated. His organization falls into the latter, he says

For Accord, the personal comes into play because of what Ballases has learned in his decades in the banking business. He knows margins and growth rates in his applicants’ industries, and those factors aren’t often incorporated into algorithms, he says.

In fact, commercial banks have failed to learn to evaluate small businesses on their true merits, Ballases continues. Banks tend to underwrite small businesses, which he defines as those in need of $100,000 or less, by using a “skinnyed-down” version of how they underwrite big companies, which they base on general financial information. Instead, he counts on discipline, data and his 50 years of experience in commercial banking to evaluate a merchant on an individual basis.

Pearl Street Historic District in Brandon, MS
Brandon, MS – Home to Transmark Funding

At another company, TransMark Funding, Stevens and his partner draw upon legal and small-business experience to evaluate potential customers’ creditworthiness. “That causes us to focus on an applicant’s business model and their sustainability, which may boil down to personalities,” Stevens says. Transmark combines those factors with “a little bit of credit metrics” to come to decisions on applications.

The company’s mix of objective and subjective reasoning differs starkly from the thought process at most coastal funders, Stevens says. While his company gives most of the weight to the subjective and just a bit to the objective, big-city competitors tend to do the exact opposite, he says.

Of the last five MCA deals that Transmark funded, the merchants averaged 12 checks returned for insufficient funds per month, Stevens says, noting that he can make that statement “with a straight face.” Sometimes it’s been as high as 35 NSF checks per month for successful applicants. “Those people would not even get into the parking lot of a bank and would not get through the door of any MCA funder who’s using any sort of reasonable metrics,” he adds.

An anecdote helps explain the thinking. Suppose a restaurant has been operating for several years in a town of 50,000 and has amassed 2,200 “likes” on its Facebook page, Stevens suggests. “I’m in,” he exclaims, noting that it would take compellingly negative numbers to convince him that the business won’t survive if he helps it obtains capital to improve its positioning in its market.

The vignette illustrates that a business can do well in the community despite the merchant’s financial difficulties, Stevens says. However, the story doesn’t mean Facebook becomes the only determining factor, he continues. Positive factors for success include good location and marketing, he notes.

The principals at many companies funded by TransMark have credit scores in the low 500’s, Stevens continues. “That’s tough,” he says, “because they’re going to have a lot of history of not living up to their financial obligations.” But if someone with that credit score has personally guaranteed a lease on a storefront for the next two years, they may be unlikely to abandon the business. A big bank might look upon that merchant as insufficiently nimble because of the lease, but TransMark takes the opposite view, he says.

Even if a store, restaurant or contractor is “circling the drain” and about to shut down, TransMark may simply believe the owner has the character to make the business work. “Given our minute default rate, we’re right most of the time,” Stevens maintains, adding that banks see applicants as customers, and TransMark sees them as partners.

“IF THEY LOOK STRONG, I NEED TO FUND THEM”

The business model requires peering into the future to see how the merchants will look after using perhaps $25,000 in capital to make improvements and while dealing with 18 percent holdback for the next six months, Stevens observes. “If they look strong, I need to fund them,” he says of the company’s prognostications.

To find ISOs who appreciate the TransMark model, the company seeks out purveyors of credit card merchant services, Stevens says. They encounter those merchant-services providers at trade shows and through “some general poking around,” he notes.

The merchant-services people often have long-standing relationships with merchants and thus can feed information into the TransMark way of viewing deals. “Tell me what it looks like when you walk into their store at 11 a.m.,” Stevens says to illustrate the kind of conversation he has with ISOs. “How is their signage?”

Besides understanding clients, it also pays to understand markets, and proximity can help with the latter, according to Ballases and Castro in Houston. “We have an affinity for Texas,” Castro says.

Many of the businesses based in Texas are vendors to people—like mechanics who fix cars or restaurants that feed people—not vendors to businesses, Ballases notes. Vendors who cater to people are better candidates for merchant cash advances than business-to-business companies are, he maintains.

Loan Star State
Above: The Texas fintech market, dubbed ‘The Loan Star State’ was the featured story of deBanked’s May/June 2017 issue

“It’s just a huge state,” Castro declares. “We’ve got a thousand new residents moving to Texas every day.” Nearly 10 percent of the nation’s small businesses operate in The Lone Star State, he notes.

“There’s a convergence of the population growth, a low tax rate, low regulations, low cost of running a small business relative to national levels, and a great small-business environment,” Castro says of the Texas scene. “In addition, the healthcare industry is exploding here, and there are the ancillary businesses to healthcare.”

Meanwhile, the state’s Hispanic entrepreneurs remain under-served by alt funding ISOs, which presents a great untapped opportunity, Castro maintains. Funders who cater to those Hispanic merchants will find them loyal, he predicts. In Texas alone, Hispanic consumers spend half a billion dollars annually, he says.

To capitalize on that burgeoning market, Accord has assembled a team that can help Anglo ISOs bridge the cultural and linguistic gap, Castro says. “We do that every day,” he maintains. “We’re jumping on the phone with merchants and helping them get the funding they need to support the growth of their operations.” Those conversations with merchants do not put Accord in competition with ISOs, Castro notes. Accord does not maintain an inside sales staff and does all of its business through ISOs, he says.

Only a few of those ISOs are based in Texas, according to Ballases. Most of Accord’s ISOs operate from offices in the Northeast, with many in the other common geographic spots of South Florida and Southern California, he says. So that makes Accord a national company despite its emphasis on Texas, Ballases says.

Accord’s experience at home, combined with nationwide contacts in the industry, have convinced the company’s leadership that too many brokers remain unaware of the opportunities in Texas.

That’s why Accord is producing ads, videos, infographics, blogs and social media posts to alert those coastal ISOs to opportunities in Texas. The company even offers a tab called “FundTEX” on its website. “We’re getting the word out,” Castro says of the company’s effort to publicize his state.

Besides operating in areas sometimes overlooked on the coasts, heartland brokers and funders sometimes have to reinvent the industry almost from scratch. Brokers can find themselves teaching the business to potential investors outside the Big Three geographic locations, Moss says. In New York, investors already know the industry and use that familiarity to evaluate brokers, he says.

“THERE IS NO ONDECK OR YELLOWSTONE OR RAPIDADVANCE DOWN THE STREET TO PROVIDE A TALENT POOL FOR HIRING”

Brokers and funders also have to deal with the heartland’s lack of workers with industry experience. As the lone company in the market, Strategic Capital, for example, can’t find many prospective employees with previous jobs in the business, Moss notes. “There is no OnDeck or Yellowstone or RapidAdvance down the street to provide a talent pool for hiring,” he says.

That’s good and bad, Moss maintains. New hires don’t require re-training to lose habits that don’t fit the Strategic Capital way of working. But it’s difficult to find underwriters, accountants and other prospective employees with the right background. It doesn’t work to put new salespeople on straight commission because the “ramp-up” period takes longer with employees unfamiliar with the industry, he says.

The lack of local experience sometimes prompts brokers in the heartland to tap the Big Three areas for talent. Expansion Capital Group, for example, has a business development director in New York who came from another ISO, Mages says. Besides cultivating relationships in NYC, the business development expert makes frequent trips to Southern California and South Florida.

“A SPACIOUS FIVE-BEDROOM HOUSE IN KANSAS CITY MIGHT COST LESS THAN A CRAMPED APARTMENT IN NEW YORK”

Meanwhile, members of the industry who tire of the rapid pace on the coasts might want to consider moving inland to fill the vacant jobs, sources suggest. After all, the heartland has its advantages, according to Moss. “Most people here have houses, and the cost of living is lower than in places like New York,” he says. A spacious five-bedroom house in Kansas City might cost less than a cramped apartment in New York, he notes.

To commute to the company’s suburban office, his typical employee jumps into a car in a climate controlled attached garage, cruises for half an hour or so on roads relatively free of traffic and parks in the lot a few steps outside his office building. It’s less stressful than crowding into a subway car, he notes.

The hinterland’s not as culturally barren as some might believe, Moss continues. The public hears “Kansas City” and they think of tornadoes, cows and the Wizard of Oz, he says. But the reality includes a downtown replete with skyscrapers and pro sports, not to mention lots of tech, healthcare and aerospace companies. “It’s like a mini-Chicago,” he notes.

But a retreat from the coasts may not be in the offing. Ballases expects that the majority of ISOs will continue to concentrate on the East Coast and West Coast because that’s where population growth remains strongest and thus provides the most opportunities. “It’s a numbers game,” he observes.

Shopify is Quickly Climbing the Ranks of the Largest Small Business Funders

February 12, 2019
Article by:

Shopify originated $277 million in merchant cash advances in 2018, according to their quarterly earnings reports. That figure already places them among the largest small business funding providers nationwide.

Below is a look of how they stack up thus far:

Company Name 2018 Originations 2017 2016 2015 2014
OnDeck $2,484,000,000 $2,114,663,000 $2,400,000,000 $1,900,000,000 $1,200,000,000
Kabbage $2,000,000,000 $1,500,000,000 $1,220,000,000 $900,000,000 $350,000,000
Square Capital $1,600,000,000 $1,177,000,000 $798,000,000 $400,000,000 $100,000,000
Funding Circle (USA only) $500,000,000
BlueVine $500,000,000* $200,000,000*
National Funding $427,000,000 $350,000,000 $293,000,000
Kapitus $393,000,000 $375,000,000 $375,000,000 $280,000,000
BFS Capital $300,000,000 $300,000,000
RapidFinance $260,000,000 $280,000,000 $195,000,000
Credibly $180,000,000 $150,000,000 $95,000,000 $55,000,000
Shopify $277,100,000 $140,000,000
Forward Financing $125,000,000
IOU Financial $91,300,000

$107,600,000 $146,400,000 $100,000,000
Yalber $65,000,000


*Asterisks signify that the figure is the editor’s estimate

New York Introduces Bill to Ban COJs in Financial Contracts

February 4, 2019
Article by:

New York AssemblyNew York Assemblymembers Yuh-Line Niou and Crystal Peoples-Stokes have introduced a bill that would prohibit Confessions of Judgment (COJs) from being used in any contract or agreement for a financial product or service.

Peoples-Stokes’ district was one of the first districts to boycott COJs originated by merchant cash advance companies after Erie County Clerk Michael Kearns publicized that he would no longer approve them.

A03636 proposes the following:

§ 396-aaa. Confession of judgment requirement for certain contracts; prohibition.

1. No person shall require a confession of judgment in any contract or agreement for a financial product or service.

2. As used in this section the following terms shall have the following meanings:
(a) “Financial product or service” shall mean any financial product or financial service offered or provided by any person regulated or required to be regulated by the superintendent of financial services pursuant to the banking law or the insurance law or any financial product or service offered or sold to consumers except financial products or services: (i) regulated under the exclusive jurisdiction of a federal agency or authority, (ii) regulated for the purpose of consumer or investor protection by any other state agency, state department or state public authority, or (iii) where rules or regulations promulgated by the superintendent of financial services on such financial product or service would be preempted by federal law.

(b) “Financial product or service regulated for the purpose of consumer or investor protection”: (i) shall include (A) any product or service for which registration or licensing is required or for which the offeror or provider is required to be registered or licensed by state law, (B) any product or service as to which provisions for consumer or investor protection are specifically set forth for such product or service by state statute or regulation and (C) securities, commodities and real property subject to the provisions of article twenty-three-A of the general business law, and (ii) shall not include products or services solely subject to other general laws or regulations for the protection of consumers or investors.

Get The Affidavit or Waive It? Examining Confessions of Judgment

February 1, 2019
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This story appeared in deBanked’s Jan/Feb 2019 magazine issue. To receive copies in print, SUBSCRIBE FREE

cojsCaton Hanson, the chief legal officer and co-founder of the online credit-reporting and business-to-business matchmaker Nav, says that his Salt Lake City-based company would not associate with a small-business financier that included “confessions of judgment” in its credit contracts.

“If we understood that any of our merchant cash advance partners were using confessions of judgment as a means to enforce contracts,” Hanson told deBanked, “we would view that as abusive and distance ourselves from those partners. As a venture-backed company,” Hanson adds, “we have some significant investors, including Goldman Sachs, and I’m sure they would support us.”

Steve Denis, executive director of the Small Business Finance Association, which represents companies in the merchant cash advance (MCA) industry, says that, as an organization, “We’ve taken a strong stance against confessions of judgment.”

He reports that his Washington, D.C.-based trade group is prepared to work with legislators and policy-makers of any political party, regulators, business groups and the news media “to ban that type of practice.

“We’re fighting against the image that we’re payday lenders for business,” Denis says of the merchant cash advance industry. “We’re trying to figure out internally what we can do to stop that from happening and we have been speaking to members of Congress and their staff.”

“Confessions of judgment,” says Cornelius Hurley, a law professor at Boston University and executive director of the Online Lending Policy Institute, “are to the merchant cash advance industry what mandatory arbitration is to banks. Neither enforcement device reflects well on the firms that use them.”

These are just some of the reactions from members of the alternative lending and financial technology community to a blistering series of articles published by Bloomberg News on the use—and alleged misuse—of confessions of judgment (COJs) by merchant cash advance companies. The series charges the MCA industry with gulling unwary small businesses by not only charging high interest rates for quick cash but of using confession-laden contracts to seize their assets without due process.

The Bloomberg articles also reported that it doesn’t matter in which state the small business debtors reside. By bringing legal action in New York State courts, MCA companies have been able to use enforcement powers granted by the confessions to collect an estimated $1.5 billion from some 25,000 businesses since 2012.

“I don’t think anyone can read that series of articles and honestly say what went on were good practices and in the best interest of small business,” says SBFA’s Denis, noting that none of the companies cited in the Bloomberg series belonged to his trade group. “It’s shocking to see some companies in our space doing things we’d classify as predatory,” he adds. “As an industry we’re becoming more sophisticated, but there are still some bad actors out there.”

1800s englandA confession of judgment is a hand-me-down to U.S. jurisprudence from old English law. The term’s quaint, almost religious phrasing evokes images of drafty buildings, bleak London fog, and dowdy barristers in powdered wigs and solemn black gowns. (And perhaps debtor prisons as well.)

Yet while the legal provision’s wings have been clipped—the Federal Trade Commission banned the use of confessions of judgment in consumer credit transactions in 1985 and many states prohibit their use outright or in such cases as residential real estate contracts—COJs remain alive and well in many U.S. jurisdictions for commercial credit transactions.

Even so, most states where COJs are in use, such as California and Pennsylvania, have adopted safeguards. Here’s how the San Francisco law firm Stimmel, Stimmel and Smith describes a COJ.

“A confession of judgment is a private admission by the defendant to liability for a debt without having a trial. It is essentially a contract—or a clause with such a provision—in which the defendant agrees to let the plaintiff enter a judgment against him or her. The courts have held that such a process constitutes the defendant’s waiving vital constitutional rights, such as the right to due process, thus (the courts) have imposed strict requirements in order to have the confession of judgment enforceable.”

In California, those “strict requirements” include not only that a written statement be “signed and verified by the defendant under oath,” but that it must be accompanied by an independent attorney’s “declaration.” If no independent attorney signs the declaration or—worse still—the plaintiff’s attorney signs the document, the confession is invalid.

But if the confession is “properly executed,” the plaintiff is entitled to use the full panoply of tools for collection of the judgment, including “writs of execution” and “attachment of wages and assets.”

“ANY COMMERCIAL BANK IN PENNSYLVANIA WORTH ITS SALT INCLUDES THEM IN THEIR COMMERCIAL LOAN DOCUMENTS”


commercial leaseIn Pennsylvania, confessions of judgment are nearly as commonplace as Philadelphia Eagles’ and Pittsburgh Steelers’ fans, particularly in commercial real estate transactions. Says attorney Michael G. Louis, a partner at Philadelphia-area law firm Macelree Harvey, “They may go back to old English law, but if you get a business loan or commercial lease in Pennsylvania, a confession of judgment will be in there. It’s illegal in Pennsylvania for a consumer loan or residential real estate. But unless it’s a national tenant with a ton of bargaining power—a big anchor store and the owner of the shopping center really wants them—95% of commercial leasing contracts have them.

“And any commercial bank in Pennsylvania worth its salt includes them in their commercial loan documents,” Louis adds.

Pennsylvania’s laws governing COJs contain a number of additional safeguards. For example, the confession of judgment is part of the note, guaranty or lease agreement—not a separate document—but must be written in capital letters and highlighted. One of the defenses that used to be raised against COJs, Louis says, was that a contractual document was written in fine print “but we haven’t seen fine print for years.”

Other reforms in Pennsylvania have come about, moreover, as a result of a 1994 case known as “Jordan v. Fox Rothschild.” Says Louis: “It used to be lot worse. You used to be able to file a confession of judgment and levy on a defendant’s bank account before he knew what happened. It was brutal. But after the Fox Rothschild case, they changed the law to prevent taking away a defendant’s right of notice and the opportunity to be heard.”

Because of that case, which takes its name from the Fox Rothschild law firm and involved a dispute between a Philadelphia landlord renting commercial space to Jordan, a tenant, the law governing COJs in Pennsylvania requires, among other things, a 30-day notice before a creditor or landlord can execute on the confession. During that period the defendant has the opportunity to stay the execution or re-open the case for trial.

leaking roofDefenses against the execution of a COJ can entail arguments that creditors failed to comply with the proper language or procedures in drafting the document. But the most successful argument, Louis says, is a “factual defense.” Louis cites the case of a retail clothing store renting space in a shopping center that has a leaky roof. In the 30-day notice period after the landlord invoked the confession of judgment, the tenant was able to demonstrate to the court that he had asked the landlord “ten times” to fix the roof before spending the rent money on roof repairs. In such a case, the courts will grant the defendant a new trial but, Louis says, the parties typically reach a settlement. “Banks generally will waive a jury trial,” he notes, “because they don’t want to take a chance of getting hammered by a jury.”

A number of states, including Florida and Massachusetts ban the use of confessions of judgment. That’s one big reason that Miami attorney Roger Slade, a partner at Haber Law, advises clients that “there’s no place like home.” In other words: commercial contracts should specify that any legal disputes will be adjudicated in Florida. “It’s like having home field advantage in the NFL playoffs,” Slade remarked to deBanked. “You don’t want to play on someone else’s turf.”

He has also been warning Floridians for several years against the way that COJs were treated by New York courts. Writing in the blog, “The Florida Litigator,” Slade—a native New Yorker who is certified to practice law there as well as in Florida counseled in 2012: “If you live in New York, a creditor can have your client sign a confession of judgment and, in the event of a default on a loan, can march directly to the courthouse and have a final judgment entered by the clerk. That’s right—no complaint, no summons, no time to answer, no two-page motion to dismiss. The creditor gets to go right for the jugular.”

In addition, because of the “full faith and credit clause of the U.S. Constitution,” Slade notes in an interview, a contract that’s enforced by the New York courts must be honored in Florida. “Courts in Florida have no choice,” Slade says. “It’s a brutal system and it’s unfortunate.”

In December, two U.S. senators from opposing parties—Ohio Democrat Sherrod Brown and Florida Republican Marco Rubio—introduced bipartisan legislation to amend both the Federal Trade Commission Act and Truth in Lending Act to do away with COJs. Their legislative proposal reads:

“(N)o creditor may directly or indirectly take or receive from a borrower an obligation that constitutes or contains a congnovit or confession of judgment (for purposes other than executory process in the State of Louisiana), warrant of attorney, or other waiver of the right to notice and the opportunity to be heard in the event of suit or process theron.”

But with a dysfunctional and divided federal government, warring power factions in Washington, and an influential financial industry, there’s no telling how the legislation will fare. Meantime, the New York State attorney general’s office announced in December that it will investigate the use of COJs following the Bloomberg series. And New York Governor Andrew Cuomo has declared support for legislation that will, among other things, prohibit the use of confessions in judgment for small business credit contracts under $250,000 and restrict judgments by New York courts to in-state parties.

But if New York State or Congressional legislation are adopted it can have “unintended consequences” to merchant cash advance firms in the Empire State—and to their small business customers as well—asserts the general counsel for one MCA firm. “Losing the confession of judgment will be removing what little safety net there is in a risky industry,” the attorney says, noting that the industry has roughly a 15% default rate.

“IT IS NOT AS POWERFUL A TOOL AS THE BLOOMBERG NEWS STORIES WOULD HAVE YOU BELIEVE”


“It is not as powerful a tool as the Bloomberg news stories would have you believe,” this attorney, who spoke on the condition of anonymity, told deBanked. “The suggestion seems to be that the MCAs can use the confession of judgment to get back the total amount of money due—and then some—while leaving a trail of dead bodies behind. But that’s not the case.

“What is much more likely to be the case,” he adds, “is that MCA companies try to get the defaulting merchant back on track. And—probably more than we should and only after we’ve tried to reach out to them and failed—do we then reluctantly use the COJ as a last resort. At which point we hope we can recover some part of our exposure. The numbers vary, but the losses are always in the thousands of dollars. These are not micro-transactions.

“What’s going to happen,” he concludes, “is that It will not make sense for us to work with those merchants most in need of working capital. The unfortunate reality is that businesses who don’t have collateral and can’t get a Small Business Administration product will be left out in the cold.”

All of which prompts BU professor Hurley to argue that the “Swiss cheese” system of financial regulation among the 50 states continues to be a root cause of regulatory confusion. Echoing Miami attorney Slade’s concern about New York courts’ dictating to Florida citizens, Hurley likens the situation governing COJs with the disorderly array of state laws governing usury regulations.

In the 1978 “Marquette” decision, the U.S. Supreme Court ruled that a Nebraska bank, First of Omaha, could issue credit cards in Minnesota and charge interest rates that exceeded the usury rate ceiling in the Gopher State. Since then, usury rates enacted by state legislatures have become virtually unenforceable.

“The problem we’re seeing with confessions of judgment is a subset of the usury situation,” Hurley says. “One state’s disharmony becomes a cancer on the whole system. It’s a throwback to Colonial times with 50 states each having their own jurisdictions­—and it doesn’t work.”

50 statesHurley’s Online Lending Policy Institute has joined with the Electronic Transactions Association and recruited a phalanx of “academics, non-banks, law firms and other trade associations as members or affiliates” to form the Fintech Harmonization Task Force. It is monitoring the efforts by the 50 states to align their regulatory oversight of the booming financial technology industry which was recently recommended by a U.S. Treasury report.

Tom Ajamie, who practices law in New York and Houston and has won multimillion-dollar, blockbuster judgments against “dozens of financial institutions” including Wall Street investment firms, also argues for greater regulatory oversight. He urges greater funding and expansion of the powers of the Consumer Financial Protection Bureau to rein in “the anticipatory use” of confessions of judgment in commercial transactions.

However, notes Catherine Brennan, a partner at Hudson Cook in Baltimore, the job of protecting small businesses is outside the agency’s mandate. “The CFPB doesn’t have authority over commercial products as a general rule,” she explained in an interview. “Consumers are viewed as a vulnerable population in need of protections since the 1960’s.” As a society “we want protection for households because the consequences are high. A family could become homeless if they lose a house. Or (they) could lose employment if they lose a car and can’t drive. And there is also unequal bargaining power between lenders and consumers.

“Large institutions have lawyers to draft contracts and consumers have to agree on a take it or leave it basis. So there’s not a lot of negotiation and government has decided that consumers need protections, including a (Federal Trade Commission) ban on confessions of judgment.”

But Christopher Odinet, a law professor at the University of Oklahoma and a member of Hurley’s harmonization task force, sees the efforts of the federal government and the states to grapple with confessions of judgment as further recognition that small businesses have more in common with consumers than with big business. The COJ controversy follows on the recent passage of a commercial truth-in-lending bill by the State of California which, for the first time, stipulated that consumer-style disclosures should be included in business loans and financings under $500,000 made by non-bank financial organizations.

He cites the close-to-home example of an accomplished professional who got in over his head in financial dealings. “I recently observed a situation where a family member who is a very successful and affluent medical professional was relying on his own untrained business skills,” Odinet says. “He was about to enter into a sophisticated and complex business partnership relying on his intuition and general sense of confidence in the other party.”

Odinet says that he recommended that his relative hire a lawyer. Which, Odinet says, he did.

This story appeared in deBanked’s Jan/Feb 2019 magazine issue. To receive copies in print, SUBSCRIBE FREE

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