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The Colonial Funding shows that the boundary between an MCA and a credit can be a beautiful one." May 9th, Colonial Funding Network, Inc. v. Epazz, Inc. the U.S. District Court for the Southern District of New York rejected counter-claims claiming overcharge of interest and confirmation of extortion.
This is the first case in the history of the Confederation to find that a contract creating a commercial credit in good faith (MCA) does not provide a credit. For Colonial Funding, the parties' MCA arrangement stipulated that the cash credit in question had to be reimbursed in the form of day-to-day repayments amounting to 15 % of the Epazz's claims recovered each day.
For that purpose, the Memorandum of Understanding authorised the applicant TVT Capital to make payments on a day-to-day base, in the amount stipulated, from a specific banking escrow to which Epazz had to pay the amount recovered by it. Furthermore, TVT had to match its payments each month with the statements of accounts for the intended deposits accounts.
In the event that the payout by TVT on a given date was higher or lower than 15 per cent of the claims recovered by TVT on that date, TVT was obliged to charge or credits the balance to the deposits accounts. However, if TVT did not supply it with the necessary statements to carry out the voting,'TVT[was] not obliged to coordinate further payment.
Colonial, as a service company for TVT, reacted by submitting a complaint to the New York Supreme Tribunal, which was filed in front of the Supreme Tribunal. Having reviewed the MCA ratio structures of the notifying companies, the Regional Tribunal found that Epazz's claim that the ratio was a credit was based on three particular cases. Regarding the first of these cases, Merchant Cash & Capital LLC v. Edgewood Group, LLC, 2015 U.S. Dist. LEXIS 94018, 2015 WL 4451057 (S. D.N.Y. July 20, 2015), the Regional Court declared that "[w]hether the agreement was a loan, was not disclosed and was not material to the outcome[of the case.
]" Colonial Funding Courts then found that the Merchant Cash magistrate had examined a supplementary application from the claimant MCA supplier and found that the parties' relationships'appear to be organised'not as loans but as a sales of receivables' since the MCA arrangement provides for a periodic matching of payment to claims received.
In addition, Epazz's assertion that the contract was a debt because it entailed certain amounts to be paid on a day-to-day basis'was refuted by the voting rules, which stipulate that if TVT's day-to-day payment exceeds 15% of Epazz's day-to-day revenue, it must pay the Epazz the difference, thereby restricting Epazz's commitment to 15% of its day-to-day revenue.
Accordingly, the tribunal rejected Epazz's counter-claim for excessive interest rates and positive defenses of extortion. The Colonial Funding confirms that, in order to prevent an MCA from being considered an extortionate credit, (i) the supplier's share in the dealer's claims must be the supplier's exclusive redemption and ( ii) the agreement must contain a mechanisms for matching necessary contractual payment with the buyer's ability to pay.
The Colonial Funding also demonstrates that the boundary between an MCA and a credit can be a delicate one. In the absence of an efficient contractual arrangement, a judicial authority could regard a deficiency rule imposing firm payment without a voting obligation as a reason for a credit. At Colonial Funding, the tribunal found that the right to seek arbitration lay exclusively with the respondent dealer, and if the dealer wanted to waive that right by not presenting a receipt to the MCA vendor, the vendor could assume that his day-to-day payouts represented 15 per cent of the vendor's day-to-day collection claims.
The request to the dealer's primary owner to provide a face-to-face warranty will not grant an otherwise good faith MCA an extortionate credit as long as the conditions of the warranty reflect the dealer's covenants. In Colonial Funding, for example, the guarantee holder was obliged to pay the daily debts into a specific bank account together with the trader.