Protecting Maryland Merchants: Grant Phillips Law - Your Merchant Cash Advance Attorney

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 The intent of S.B 5470 is to provide corporate and small business borrowers with more transparency surrounding their taking of credit, in order to allow for better, more informed decisions, a clearer understanding of how much is being borrowed and under what terms and to provide a corporate borrower with the ability to compare different offers of credit. https://grantphillipslaw.com/new-york-enacts-apr-disclosure-laws/

 With an abundance of new regulation, credit underwriting standards inevitably increased to such an extent, that most small businesses were left out in the cold, unable to obtain working or start-up capital, thus leaving a massive void in the lending to small business space. https://grantphillipslaw.com/merchant-cash-advance-101-explained/

 In other words “We will reduce your debt by x% but we still reserve the legal right to sue you and come after you for the x% we temporarily forgave at a later time when you have income or assets.” Often such judgments stay in affect for 20 years and lead to wage garnishments, liens and writs of possession. A qualified attorney will make sure that any such settlement releases the debtor from any future deficiency judgments. https://grantphillipslaw.com/tackle-all-your-debt-with-a-debt-relief-attorney/

 Provided certain disclosures are met pursuant to S.B. 5470 and that risk to changes in receivables are carried and borne entirely by the lender, coupled with several other legal criteria (the specifics of which are not applicable for this article), and it is possible for a bona fide Merchant Cash Advance, (i.e. in compliance with all laws) to exist. https://grantphillipslaw.com/new-york-enacts-apr-disclosure-laws/

 MCA Entities of which a majority of the voting power or equity interest is owned, directly or indirectly, by a financial institution will be exempt from the CFDL. The most common institution would be a depository bank. https://grantphillipslaw.com/new-york-mca-final-disclosure-laws/

 With an abundance of new regulation, credit underwriting standards inevitably increased to such an extent, that most small businesses were left out in the cold, unable to obtain working or start-up capital, thus leaving a massive void in the lending to small business space. https://grantphillipslaw.com/merchant-cash-advance-101-explained/

 On its own, SB 5740 reads somewhat ambiguous, with limited reach. Comes along SB 898 (about two months after SB 5740 passed) providing more context into SB 5740 while simultaneously increasing its regulatory reach. https://grantphillipslaw.com/new-york-mca-laws-updated/

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 Provided certain disclosures are met pursuant to S.B. 5470 and that risk to changes in receivables are carried and borne entirely by the lender, coupled with several other legal criteria (the specifics of which are not applicable for this article), and it is possible for a bona fide Merchant Cash Advance, (i.e. in compliance with all laws) to exist. https://grantphillipslaw.com/new-york-enacts-apr-disclosure-laws/

 The industry has been booming ever since and without regulation and no barrier to entry, hundreds of participants have entered the MCA lending sphere. While many engage in deceptive lending practices together with other predatory abuses, including illegal collection methods, harassment and fraud, there are some participants that do follow the law. https://grantphillipslaw.com/merchant-cash-advance-101-explained/

 MCA Entities of which a majority of the voting power or equity interest is owned, directly or indirectly, by a financial institution will be exempt from the CFDL. The most common institution would be a depository bank. https://grantphillipslaw.com/new-york-mca-final-disclosure-laws/

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 implementation, enforcement, and protocol for compliance. The intent of SB 898 as passed by the New York Legislature is to answer some of these questions and to provide SB 5740 with a far broader reach to include more loan transactions within its purview and includes Merchant Cash Advance transactions. https://grantphillipslaw.com/new-york-mca-laws-updated/

 On its own, SB 5740 reads somewhat ambiguous, with limited reach. Comes along SB 898 (about two months after SB 5740 passed) providing more context into SB 5740 while simultaneously increasing its regulatory reach. https://grantphillipslaw.com/new-york-mca-laws-updated/

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 The new TILA-like Disclosure requirements were signed into law on December 23rd of 2020 with an original commencement date of June 21, 2021. However, since passing S.B. 5470 the New York Senate has provided additional guidance and updates (In March 2021), and included in this update is a new date for commencement of the law to begin January 1st, 2022. https://grantphillipslaw.com/new-york-enacts-apr-disclosure-laws/

 The protocol and format of how lenders will issue, maintain and comply with the new law and the manner by which lenders will be monitored, will be prescribed by The New York Department of Financial Services (DFS). At the time of writing this article, the DFS has yet to issue guidance or provide instruction on Format and Compliance. https://grantphillipslaw.com/new-york-enacts-apr-disclosure-laws/

 For more information and context surrounding SB 5740 and its disclosure requirements, please see our first article in this series titled: “New York Passes Merchant Cash Advance Regulation Requiring Transparency & Disclosures” https://grantphillipslaw.com/new-york-mca-laws-updated/

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 The solution to REAL, LEGAL & COMPLETE debt relief, is working through an attorney licensed and specializing in Total Consumer Debt Relief. With an experienced attorney a debtor has the ability to view their financial hardship and debt in a total and comprehensive fashion and not in a bubble or vacuum of credit card debt alone. https://grantphillipslaw.com/tackle-all-your-debt-with-a-debt-relief-attorney/

 Since 2020, the New York Department of Financial Services NYDFS issued multiple versions of the regulation and the law finally took effect on August 1, 2023. https://grantphillipslaw.com/new-york-mca-final-disclosure-laws/

 New York State, by all accounts the haven State for Merchant Cash Advances, ironically is also one of the first States to enact laws that require certain consumer like disclosures even for several commercial loans. https://grantphillipslaw.com/new-york-mca-final-disclosure-laws/

 Beginning early 2010, after the Great Recession, when the American housing market blew up and the world fell into a financial crisis, conventional banking institutions, for example Chase Bank and Citi, were unwilling to extend credit to small businesses. https://grantphillipslaw.com/merchant-cash-advance-101-explained/

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 With an abundance of new regulation, credit underwriting standards inevitably increased to such an extent, that most small businesses were left out in the cold, unable to obtain working or start-up capital, thus leaving a massive void in the lending to small business space. https://grantphillipslaw.com/merchant-cash-advance-101-explained/

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 implementation, enforcement, and protocol for compliance. The intent of SB 898 as passed by the New York Legislature is to answer some of these questions and to provide SB 5740 with a far broader reach to include more loan transactions within its purview and includes Merchant Cash Advance transactions. https://grantphillipslaw.com/new-york-mca-laws-updated/

 The protocol and format of how lenders will issue, maintain and comply with the new law and the manner by which lenders will be monitored, will be prescribed by The New York Department of Financial Services (DFS). At the time of writing this article, the DFS has yet to issue guidance or provide instruction on Format and Compliance. https://grantphillipslaw.com/new-york-enacts-apr-disclosure-laws/

 Advance, to make certain disclosures in the contract paperwork, available for a small business borrower to make informed borrowing decisions. Examples of required disclosures include revealing the total cost of financing as well as presenting the small business borrower with a defined APR (Annual Percentage Rate). https://grantphillipslaw.com/new-york-mca-laws-updated/

 An attorney must give a retainer agreement and layout in plain English up front, what he or she is doing for the client and how much it will cost. A good attorney will not even take money or start a case if they see that the client’s desires are not legally possible or there is no legal defense. A qualified attorney will never make promises or guarantees about success, let alone promise total elimination or settlement, while settlement companies tout 50% to 90% reductions. https://grantphillipslaw.com/tackle-all-your-debt-with-a-debt-relief-attorney/

 The new TILA-like Disclosure requirements were signed into law on December 23rd of 2020 with an original commencement date of June 21, 2021. However, since passing S.B. 5470 the New York Senate has provided additional guidance and updates (In March 2021), and included in this update is a new date for commencement of the law to begin January 1st, 2022. https://grantphillipslaw.com/new-york-enacts-apr-disclosure-laws/

 What arrived next was enormous growth in a previously obscure lending instrument, ubiquitously known as a Merchant Cash Advance. A seemingly legal transaction whereby a predatory lender is permitted to charge what ordinarily would be considered usurious interest, without being guilty of breaking the law. https://grantphillipslaw.com/merchant-cash-advance-101-explained/

 The final rules are a good start, but fall short in several areas. For example an MCA Funder is exempt from full disclosure if they are “partnered” with FDIC insured banks. Another shortfall is the inclusion of a $2,500,000 cap. Thus, commercial financing in excess of $2.5M is exempt from the CFDL. Hardly ideal. https://grantphillipslaw.com/new-york-mca-final-disclosure-laws/

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 On its own, SB 5740 reads somewhat ambiguous, with limited reach. Comes along SB 898 (about two months after SB 5740 passed) providing more context into SB 5740 while simultaneously increasing its regulatory reach. https://grantphillipslaw.com/new-york-mca-laws-updated/

 SB 898 continues its explanation of SB 5740 stating categorically that mere compliance with SB 5740 will not cure a breach of New York Usury Laws. Thus, a breach of usury remains usurious and compliance with SB 5740 will not cure such usury. https://grantphillipslaw.com/new-york-mca-laws-updated/

 What exactly the “differing and or substitute” disclosures are and how they will be inculcated into the overall law, is still up in the air. Will it provide a mechanism by which a Merchant Cash can actually calculate and reveal its true APR? Only time will tell. The mere fact that the law demands it, makes this all the more remarkable! Watch this space. https://grantphillipslaw.com/new-york-enacts-apr-disclosure-laws/

 However, sadly many businesses have been destroyed because of these loans like funding instruments. It is easy to fall prey to an MCA. Afterall, once the business is denied conventional financing or cannot obtain an SBA loan, they are desperate and vulnerable to the non-stop barrage of cold caller sales people, offering easy and quick money. https://grantphillipslaw.com/merchant-cash-advance-101-explained/

 New York law SB 5740 is designed to create transparency around loans originated in the State of New York and provided to small businesses via unconventional non-bank lenders, SB 5740 passed in December of 2020. https://grantphillipslaw.com/new-york-mca-laws-updated/

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