Regulation
How Should A Merchant Cash Advance Be Structured, What is Syndication, and More?
June 29, 2020A recent roundtable hosted by Pepper Hamilton partner Gregory J. Nowak examined some broad questions about merchant cash advances including:
- What is a merchant cash advance?
- How should a merchant cash advance transaction be structured?
- What are the key features for enforceability?
- Could a merchant cash advance transaction be a security?
- What is participation? is it a security? If yes, what does that mean?
- What is syndication?
- What’s the role of FINRA?
They published the presentation on jdsupra.com and it can be viewed here:
Sorry, You’re Not Eligible For PPP Money
April 8, 2020
The rush to submit your PPP application may be for naught if you own an ineligible business. The SBA prohibits loan guarantees to “businesses primarily engaged in lending, investments, or to an otherwise eligible business engaged in financing or factoring.” If there’s any confusion as to what that includes, the SBA lists 7 specific ineligible business types under this definition in the statutory code. They include:
- Banks
- Life Insurance Companies (but not independent agents);
- Finance Companies
- Factoring Companies
- Investment Companies
- Bail Bond Companies
- Other businesses whose stock in trade is money
The PPP’s interim final rule refers to this statute as a rule for ineligibility as it applies to the PPP.
The statute does list a handful of businesses engaged in lending that may traditionally qualify for an exception. They are as follows:
- A pawn shop that provides financing is eligible if more than 50% of its revenue for the previous year was from the sale of merchandise rather than from interest on loans.
- A business that provides financing in the regular course of its business (such as a business that finances credit sales) is eligible, provided less than 50% of its revenue is from financing its sales.
- A mortgage servicing company that disburses loans and sells them within 14 calendar days of loan closing is eligible. Mortgage companies primarily engaged in the business of servicing loans are eligible. Mortgage companies that make loans and hold them in their portfolio are not eligible.
- A check cashing business is eligible if it receives more than 50% of its revenue from the service of cashing checks.
- A business engaged in providing the services of a financial advisor on a fee basis is eligible provided they do not use loan proceeds to invest in their own
deBanked is not a law firm. Consult a CPA or an attorney to provide better guidance on your company’s eligibility.
Lists of States Where Non-Essential Businesses Have Been Ordered to Close
March 24, 2020Make sure you know about individual state orders that could affect a small business’s ability to operate. Below is a list of states and regions that have ordered some or all non-essential businesses to close. This list may be incomplete and the details of each state’s orders could change and may have changed since this was posted. Do you own due diligence:
- Alabama – Jefferson County
- California
- Colorado – Must reduce workforce by 50%
- Connecticut
- Delaware
- Florida – multiple counties
- Georgia – bars and restaurants
- Hawaii – Maui and Honolulu
- Idaho – Blaine County
- Illinois
- Indiana
- Kansas – multiple counties
- Kentucky
- Louisiana
- Maine – Bars and restaurants
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Mississippi – Certain cities
- Missouri – Certain areas in and around Kansas City
- Montana
- Nevada
- New Jersey
- New Mexico
- New York
- North Carolina
- Ohio
- Oregon
- Pennsylvania
- Rhode Island
- Tennessee – Multiple cities and counties
- Texas – Multiple cities and counties
- Vermont
- Virginia
- Washington
- West Virginia
- Wisconsin
- Wyoming – Multiple counties
Maryland Merchant Cash Advance Prohibition Bill Put on Hold After State Abruptly Ended The Legislative Session
March 19, 2020
The State of Maryland decided to end their 2020 legislative session late last night rather than on the original April 6th deadline, due to COVID-19 concerns. Legislators managed to pass 650 bills in a “3-day sprint” but did not get to everything. Among the bills that did not even make it to the floor were SB913 and HB1478, the bills that called for an outright prohibition on a narrow definition of merchant cash advances.
But it’s not over. Legislative leaders plan to hold a special legislative session at the end of May which they may use to vote on the numerous bills they were not able to pass in time this week.
Senate President Bill Ferguson told the Baltimore Sun, “We want to give enough time for the public health crisis to move past.”
The bills were not exactly on the fast track as it was, having only gone through 1 committee hearing leading up to the deadline.
If the bills do not pass during the special legislative session in May, they might not be picked up again until the normal session resumes in Mid-January 2021.
With New York in a State of Emergency, Its Legislators Rush to Regulate Disclosures in the Commercial Finance Industry
March 16, 2020
On March 7th, Governor Cuomo declared a disaster emergency for New York State. Four and 6 days later respectively, legislators in the state Assembly and Senate introduced commercial financing disclosure bills that would regulate all business-to-business financing transactions including secured loans, factoring, and merchant cash advances. The bills intend to create uniform disclosures for comparison purposes while also placing control of the commercial finance industry under the purview of the superintendent of the New York Department of Financial Services (DFS).
The bills also state that merchant cash advance companies may be required to prepare funding reports on all of their deals for the DFS to inspect so that the superintendent can analyze the difference between the estimated anticipated APR and the actual retrospective APR that resulted after the merchants delivered all of the receivables to the funder on each deal.
The bills are said to have been in the works for some time, but the timing of their introduction is awkward given the sudden economic situation that is unfolding in the state.
The bills are actually quite lengthy so you can read them yourselves in full here:
Assembly Bill A10118 – Introduced by Kenneth Zebrowski
Senate Bill S05470A – Introduced by Kevin Thomas
New Jersey Tries Again With a Small Business Finance Disclosure Bill
January 26, 2020
For the third year in a row, New Jersey has a small business finance disclosure bill on the table. S233 is the latest iteration of S2262 from prior years.
Introduced by State Senator Troy Singleton, the proposed law would impose disclosures on loans, factoring, and merchant cash advances on transactions less than $500,000.
In addition to APR requirements, brokers who arrange such financing would be required to disclose their fee to prospective applicants separately from the financing contract and prior to the consummation of the transaction.
Singleton is a Democrat. The Democrats in New Jersey control the Senate, Assembly, and Governor’s office.
New Jersey Firms Up Its Confession of Judgment Bill
January 13, 2020The New Jersey State legislature strengthened its Confession of Judgment (COJ) bill last week by adding language that grants the Attorney General power to enforce monetary penalties against violators.
S3581 would prohibit any provider of business financing from extending financing with a COJ. Business financing is defined as a loan, line of credit, cash advance, factoring, or asset-based transaction for a business purpose.
The bill still needs to pass the Senate and Assembly and be signed off by the Governor in order to become law. The bill’s sponsor, Senator Troy Singleton, is a Democrat, increasing the likelihood that the Democrat-controlled legislature and Democrat Governor Phil Murphy will move it forward.
Dodd-Frank’s Small Business Lending Data Collection Rule Could Still Take Years to Implement
January 12, 2020
Small business lenders: Are you ready to regularly submit loan application data to the Consumer Financial Protection Bureau? No? Good, because almost ten years after Dodd-Frank passed, the provision that requires the CFPB to collect small business lending data still hasn’t been implemented.
And apparently we’re still years away.
Section 1071, as it’s known, modified the Equal Credit Opportunity Act and defined a small business lender as any company that engages in any financial activity. So if you’re wondering if this thing even applies to whatever you do in your corner of small business finance, it probably does.
The rule has taken so long to implement that consumer advocacy groups have actually sued the CFPB over the delay. The CFPB took note followed by initiative and hosted a symposium late last year to discuss how it might go forward. The next steps from here are to convene a panel of small business lenders, have that panel issue a report, propose what the rules on collection will be, collect feedback on the proposal, formulate a final rule, issue a rule, and then set a time for when it will go into effect. That process could mean that the earliest that data collection takes place is in 2023, possibly even longer as the entire financial services industry may need time to develop the infrastructure and human resources to comply.
Beyond that, advocates and critics of Section 1071 do not even entirely agree on what purpose data collection will even serve. Some believe the intent is merely for the government to have access to data it otherwise might not have while others believe that the CFPB could use statistics it deems discriminatory to bring enforcement actions against financial institutions. Sounds like we could use a few more years to get on the same page…
A recording of the 2019 Symposium is below:
