Without Scalia, Media Outlets Reporting Marketplace Lenders Supposedly Doomed With Supreme Court Case (They’re Wrong)
February 18, 2016
Without Antonin Scalia, marketplace lending is apparently doomed, according to news outlets reporting on the matter. A high profile case (in the banking world anyway) known as Madden v Midland, is pending before the U.S. Supreme Court. Midland Funding seeks to reverse an appellate court ruling that said that interest rate preemption under the National Bank Act did not apply to them and thus they were subject to New York State’s usury laws.
According to BankRate.com’s reporting on the Scalia angle, “The U.S. Supreme Court has been asked to review a lower court decision that prevents marketplace lenders from getting around state usury laws by hooking up with banks headquartered in states that don’t have those rules.” But that’s not true at all. The case isn’t about marketplace lenders and the appellate court’s ruling isn’t currently preventing marketplace lenders from doing anything.
Midland Funding is a debt collector. Saliha Madden, a New York resident, obtained a bank issued credit card with an interest rate of 27% APR, racked up charges and didn’t pay them. The debt got written off and the bank sold the debt to Midland Funding. Midland continued to assess interest on the credit card debt while it attempted to collect. Saliha Madden sued on the basis that Midland was violating New York State usury laws. Midland Funding won and Madden appealed. Then a weird thing happened. The United States Court of Appeals for the Second Circuit held that in order “[t]o apply NBA preemption to an action taken by a non-national bank entity, application of state law to that action must significantly interfere with a national bank’s ability to exercise its power under the NBA.”
And from there began the somewhat justifiable panic in the marketplace lending industry. If a collector buying a charged-off debt from a bank can’t continue to enforce the terms as originally contracted, then could you make the same argument for loan platforms that buy newly issued loans? The answer is simply that you could make the argument. It’s not definitive. It’s one of those things that would likely have to be challenged in court by a borrower confident that a case involving a debt collector and a bank issued credit card somehow related to the matter between a marketplace lender and a borrower.
But there’s another problem in trying to make that link.
The Madden v Midland case involved a national bank and preemption under the National Bank Act. Many marketplace lenders such as Lending Club are not even conducting their business with national banks but with state-chartered banks. Their preemption ability falls under the Federal Deposit Insurance Act.
Lending Club did not shut their business down after the appellate court ruling and they didn’t stop lending in the states in which the Second Circuit has jurisdiction (New York, Connecticut and Vermont). Lending Club’s CEO Renaud Laplanche even expressed little worry about how it would impact their business when asked about it during their 2015 Q2 earnings call.
American Banker reported that “Scalia’s Death Is a Setback for Online Lenders in Key Court Fight.” But it’s really only a setback in the sense that a loss would peel away just one layer of the onion. Marketplace lenders weren’t going to suspend their operations regardless of whether or not the Supreme Court heard the case and regardless of whether or not Scalia was there to dissent.
Consider also that exporting home state interest rates using national and state chartered banks is only one system available to marketplace lenders. Square’s working capital program for example, is actually structured as a purchase of future receivables. There is no bank, no loan, and no preemption. An unfavorable Madden v Midland ruling would have no impact on that model or the dozens of merchant cash advance companies that offer similar products.
There’s also state by state licensing, which while costly and time consuming to set up, would at least allow marketplace lenders to lend in many states without relying on a bank or preemption. “I think the stronger business model is the state licensing model, as opposed to partnering up with a bank,” said Richard Eckman, a lawyer at Pepper Hamilton, to American Banker.
Even further distanced from this case are commercial marketplace lenders since state lending laws are generally less burdensome for business-to-business transactions.
And even if all else failed, a choice-of-law provision in a loan agreement can potentially decide which state’s law applies. Lending Club’s Laplanche said as much last year. “We continue to operate in the Second Circuit district where that decision was rendered, exactly as we did before and are relying on our choice of law provisions,” he said during an earnings call.
Scalia’s absence is at most a bummer for marketplace lenders. A win would only serve to tie up loose ends and finally put an end to bank charter model naysayers. Madden v Midland became so famous because the ruling was just so shocking. It practically begged the industry to take a look and wonder, what if? If this, then why not that? And if that, then who’s to say not this then? Even on AltFinanceDaily, we’ve explored the nightmare scenario in which a well established system totally unravels and the world ends. The real world holds much more promise.
The real losers in an unfavorable Supreme Court ruling would be national banks and credit card companies. And that’s because if debt collectors can’t enforce their loan agreements, then they’re not going to buy that debt to begin with. And if debt collectors won’t buy that debt, then banks are going to have to figure out a better way to collect on their own, else they make even less risky lending decisions.
Something tells me though that banks would find a creative work-around for that anyway. Because if they didn’t, Madden v Midland would end up being a massive boon for marketplace lenders.
Imagine that.
The Dual Aura of Fora – How Two College Friends Built Fora Financial and Became the “Marketplace” of Marketplace Lending
February 16, 2016A recent Bloomberg article documented the hard-partying lifestyle of two young entrepreneurs who struck it rich when they sold their alternative funding business. The story of their beer-soaked early retirement in a Puerto Rico tax haven came complete with photos of the duo astride horses on the beach and perched atop a circular bed.
But two other members of the alternative-finance community have chosen a different path despite somewhat similar circumstances. Jared Feldman and Dan B. Smith, the founders of New York-based Fora Financial, are about the same age as the pair in that Bloomberg article and they, too, recently sold an equity stake in their company. Yet Smith and Feldman have no intention of cutting back on the hours they dedicate to their business or the time they devote to their families.
They retained a share of Fora Financial that they characterized as “significant” and will remain at the head of the company after selling part of it to Palladium Equity Partners LLC in October for an undisclosed sum. Palladium bought into a company that has placed more than $400 million in funding through 14,000 deals with 8,500 small businesses. It expects revenue and staff size to grow by 25 percent to 35 percent this year.
The deal marks Palladium’s first foray into alternative finance, although it has invested in the specialty-finance industry since 2007, said Justin R. Green, a principal at the firm. His company is appointing two members to the Fora Financial board.
Palladium, which describes itself as a middle-market investment firm, decided to make the deal partly because it was impressed by Smith and Feldman, according to Green. “Jared and Dan have a passion for supporting small businesses and built the company from the ground up with that mission,” he said. “We place great importance on the company’s management team.”
Negotiations got underway after Raymond James & Associates, a St. Petersburg, Fla.-based investment banking advisor, approached Palladium on behalf of Fora Financial, Green said. RJ&A made the overture based on other Palladium investments, he said.
The potential partnership looked good from the other point of view, too. “We wanted to make sure it was the right partner,” Feldman said of the process. “We wanted someone who shared the same vision and knew how to maximize growth and shareholder value over time and help us execute on our plans.”
It took about a year to work out the details of the deal Feldman said. “It was a grueling process, to say the least,” he admitted, “but we wanted to make sure we were capitalized for the future.”
The Palladium deal marked a milestone in the development of Fora Financial, a company with roots that date back to when Smith and Feldman met while studying business management at Indiana University.
After graduation, Feldman landed a job in alternative funding in New York at Merchant Cash & Capital (today named Bizfi), and he recruited Smith to join him there. “That was basically our first job out of college,” Feldman said.
It struck Smith as a great place to start. “It was the easiest way for me to get to New York out of college,” he said. “I saw a lot of opportunity there.”
The pair stayed with the company a year and a half before striking out on their own to start a funding company in April 2008. “We were young and ambitious,” Feldman said. “We thought it was the right time in our lives to take that chance.”
They had enough confidence in the future of alternative funding that they didn’t worry unduly about the rocky state of the economy at the time. Still, the timing proved scary.
Lehman Brothers crashed just as Smith and Feldman were opening the doors to their business, and all around them they saw competitors losing their credit facilities, Smith said. It taught them frugality and the importance of being well-capitalized instead of boot-strapped.
Their first office, a 150-square-foot space in Midtown Manhattan, could have used a few more windows, but there was no shortage of heavy metal doors crisscrossed with ominous-looking interlocking steel bars. The space seemed cramped and sparse at the same time, with hand-me-down furniture, outdated landline phones and a dearth of computers. Job seekers wondered if they were applying to a real company.
“It was Dan and I sitting in a small room, pounding the phones,” Feldman recalled. “That’s how we started the business.”
At first, Smith and Feldman paid the rent and kept the lights on with their own money. Nearly every penny they earned went right back into the business, Feldman said. The company functioned as a brokerage, placing deals with other funders. From the beginning, they concentrated on building relationships in the industry, Smith said. “Those were the hands that fed us,” he noted.
By early 2009, Smith and Feldman started raising capital from friends and family members so that they could fund deals themselves. About that time, they developed a computer platform to track the payments they received from funding companies where they placed deals.
Smith and Feldman’s first credit facility came from Entrepreneur Growth Capital. The stake enabled them to begin handling deals on their own instead of passing them along to funders. At the same time, they expanded their computing platform to handle entire deals.
From there, Smith and Feldman expanded their computing capability to help with accounting, underwriting and other functions. A combination of staff and outside developers guided the platform’s evolution. Today, three full-time in-house tech people handle programming.
Smith and Feldman emphasize that they don’t consider Fora Financial a tech company, but Green said the company’s platform helped cinch the deal. “We view Fora Financial as a technology-enabled financial services company,” he maintained.
While building the platform and expanding the business, Fora Financial secured mezzanine financing from Hamilton Investment Partners LLC, a company that bases its investments on the strength of management teams. “I am industry-agnostic,” said Douglas Hamilton, managing partner and and cofounder. “Dan and Jared are one of the best young teams I have encountered in my 35 years of doing private investing.”
Meanwhile, Fora Financial moved six times to larger accommodations. The company’s 116 employees now occupy 26,000 square feet in Midtown, with half of the staff working in direct sales and the other half devoted to back office, underwriting, finance, IT, customer service, collections and legal duties.
Seventy percent of the company’s business flows from its inside sales staff and the rest comes from ISOs, brokers and strategic partners, Feldman said. “Most of the industry is the opposite,” he noted.
Finding salespeople presents a challenge in New York, where they’re in great demand. “We’ve invested a lot of money in finding the right salespeople,” Feldman said. “We also have to make sure that we’re right for them.” The sales staff includes recent graduates and experienced people from other sectors of financial-services or other businesses, Feldman noted.
“We don’t hire from within the industry,” Smith added. “From Day One, we’ve been training our staff our way and not bringing in tainted brokers.” That way, the company can make sure salespeople hew to the company’s ethical approach to business, he maintained. It’s part of creating a company culture, he said.
The Fora Financial culture also includes strict compliance with state and federal regulation because until recently Smith and Feldman owned the entire company, Feldman said. “Regulatory compliance is a core value with us and has been for some time,” he noted, adding that it’s also resulted in conservatism and due diligence.
Those traits have not gone unnoticed, according to Robert Cook, a partner at Hudson Cook, LLC, a Hanover, Md.-based financial-services law firm that has worked extensively with the company. “Fora was one of the first clients in this small-business funding area that took compliance to heart,” Cook said. “As time has gone on, we’re seeing more and more companies make compliance part of their culture, but Fora was one of the early adapters in this area.”
Top management at alternative finance companies often talk about compliance, and the discussion too often ends there and doesn’t filter down through the ranks, Cook said. But that’s not the case at Fora Financial, he maintained. “It’s throughout the organization,” he said of the company Smith and Feldman founded. “From a compliance attorney’s standpoint, that’s always a great sign.”
Nurturing a penchant for compliance and dedicating a company legal and compliance department to pursuing it became a factor in Palladium’s decision to become involved with the company, Feldman said.
The focus on compliance also spread to the way Fora Financial brings brokers on board, Smith said. The company scrutinizes potential partners carefully before taking them on, he maintained.
“We probably missed out on some business as the industry grew because we were more cognizant of doing things the right way, but that paid off in the long run and some of our competitors have followed suit,” Smith said.
Compliance first became particularly important when Fora Financial added small-business loans to their initial business of providing merchant cash advances. They began making loans because lots of businesses don’t accept cards, which serve as the basis for cash advances.
On a cash basis, the current portfolio is 75 percent to 80 percent small-business loans. Loans started to surpass advances during the fourth quarter of 2014. The shift gained momentum after the company began funding through its bank sponsor, Bank of Lake Mills, in the third quarter of 2014.
Growth of loans will continue to outstrip growth of cash advances because manufacturers, construction companies and other businesses usually don’t accept cards, Smith said. If a customer qualifies for both, Fora Financial helps decide which makes the most sense in a specific case, Feldman added.
“We don’t sell our loans – we carry everything on the balance sheet and assume the risk,” Feldman said. “If it’s not good for the customer, it’s going to come back and hurt the performance of our portfolio over time,” he noted.
That thinking helped the company recognize the importance of adding loans to the mix. “We were one of the first companies (in the alternative-finance industry) to get our California lending license,” Feldman said. The company obtained the license in 2011 and got to work on lending. Offering loans required some retooling because the underwriting criteria differ so much from those in the cash advance business, Feldman said.
With the help of several law firms, they made sense of regulation from state to state and began offering the loans one state at a time, Smith said. “We wanted to make sure we rolled it out the right way,” Feldman noted.
As the company was changing, Smith and Feldman saw a need to rebrand. Initially, they called their company Paramount Merchant Funding to reflect their merchant cash advance offerings. When they added small-business loans to the mix, they used several additional names. Now, they’ve brought both functions and all of the names together under the Fora Financial brand. Fora means marketplace in Latin and seems broad enough to cover products the company might add in the future, Feldman said.
Smith and Feldman are contemplating what form those future products might take, but they declined to mention specifics. “We’re constantly getting feedback from customers on what they need that we’re not currently delivering,” Feldman said. “We have ideas in the pipeline.”
Despite changes in the business, Smith and Feldman have managed to remain true to timeless values in their personal lives. Smith grew up near Philadelphia in Fort Washington, Pa., and Feldman is a native of Roslyn, N.Y. Both now reside in Livingston, N.J. and occasionally ride the train together to work in New York. Smith is married and has two children, while Feldman and his wife recently had their first child.
“We’re at it everyday,” Feldman said of their work-oriented lifestyle. “When we’re out of the office, we’re traveling for work. So is the rest of the team. We’re only going to go as far as our people.”
And what about that other pair luxuriating in the Caribbean? As Feldman put it: “New Jersey is a long way from Puerto Rico.”
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Learn more about Fora Financial at www.forafinancial.com
Online Lenders Plummet Simultaneously to All-Time Lows
January 14, 2016
If it was involved in online lending, investors dumped it on Wednesday January 13th. LendingTree, a consumer lending platform, dropped nearly 30% for the day despite reporting positive results.
OnDeck closed at a new all-time low of $7.33, a drop of almost 14% for the day.
Lending Club also closed at a new all-time low. They finished at $8.86, after a comparably modest drop of 6.5%.
Enova International, the company that acquired The Business Backer back in August, closed at an all-time low. At $5.58, their stock dropped 3.13% for the day.
Square, a payments company with a substantial merchant cash advance operation, was down 4%, but they did not break the record for the all-time low they had just set six day earlier.
Yirendai, a Chinese peer-to-peer lender on the New York Stock Exchange, also managed to escape an all-time low despite being down 1.55%. Their all-time low record was also set just six days earlier.
For comparison’s sake, the S&P 500 was down 2.5% on the day. The continuous beating for online lenders, which can’t seem to catch a break in the market, is especially ominous because the economy is not in a recession and there are no indications that any of their business models are legitimately threatened. Nearly a decade since the beginning of the financial crisis, it’s apparently still cool to hate lenders. For LendingTree in particular, the precipitous drop on POSITIVE news was ugly enough to make the headlines in the New York Post. “LendingTree stock was sliced, diced, creamed and puréed,” the Post wrote.
Out there, the little guys who took a leap of faith to support fintech disruption seem like they’re preparing to riot in the streets:
$lc $ONDK ipo underwriters should be in prison
— TheMoneyTeamTMT (@TheMoneyTeamTMT) Jan. 13 at 03:42 PM
This is absurd $LC …this stock is either complete sh*t or we're going to have a monster rally
— Alex (@ROIRogers) Jan. 13 at 03:25 PM
$LC $ONDK new lows… starting to trade like a big recession is already here
— Mark Holder (@StoneFoxCapital) Jan. 13 at 01:42 PM
— BasicNews (@BasicNews) Jan. 13 at 11:49 PM
$SQ Here's another garbage company with bloated forward earnings, all these p o s stocks headed way lower
— QEBubble (@QEBubble) Jan. 13 at 05:18 PM
$LC F* this!
— Don Juan (@fluppy) Jan. 13 at 02:56 PM
$LC selling into oblivion. wtf
— Bork Bork (@calicat) Jan. 11 at 05:00 PM
Perhaps contributing to the damage in Lending Club’s case is that company executives have been dumping their shares over the last several months despite the stock constantly hovering near all-time lows. It certainly doesn’t show a lot of short-term confidence that something is going to change soon.
Insider selling is not the issue in OnDeck’s case which hasn’t really had any. While they were most likely just collateral damage from today’s unyielding carnage, Noah Breslow proclaimed on Squawk Box prior to the opening bell that OnDeck was regulated like a “non-bank commercial lender,” one of those rare characterization departures from their supposedly being a tech company. Aside from that was the sobering letdown that disrupting banks may have never been the goal for them or for online lenders. In a recent article by Broadmoor Consulting’s Todd Baker, he argued that “disruptor” has been the wrong word used to describe many of these companies and that their potential may only go as far as to digitally “enable” banks who are struggling with lagging technology to enable themselves in the modern era. Sound boring? Maybe there’s something bigger in play.
Letter From the Editor – Jan/Feb 2016
January 1, 2016
2016 is here and the world of alternative finance isn’t slowing down. If you’re a commercial finance broker, the environment has gotten a little bit more competitive. Sorry folks, the Ferrari might have to wait, at least that’s what some of the sources we interviewed are saying.
But it’s not all bad, the path to success is just changing. Cold calling and direct mail are giving way to new ideas such as Times Square billboards, referral relationships, and diversified product lines. Along the way, regulatory compliance is permeating thought processes more than ever before. The SBFA (formerly NAMAA) is evolving and other groups are trying to make their presences felt as well.
Certain models may be tested by rising interest rates in 2016. Investors in marketplace lending may be wooed by safer investments that pay out a smaller, yet acceptable yield. Or perhaps a volatile or declining stock market will encourage more investors than ever before to flock to marketplace lending. Several predictions made by the “experts” in 2015 will be tested. It’s amazing to think that we really haven’t had economic or market conditions change in a long time.
The fact that it’s a presidential election year could also stir things up. Democratic contender Bernie Sanders for example, has pledged to wage war on lenders by instituting nationwide interest rate caps to levels that would likely cripple both marketplace lenders and credit card companies.
With all of these things to consider, perhaps the two guys that lost God and found $40 million (as told in Bloomberg this past October) are better off retired on a beach in Puerto Rico. Then again, we’ve got a more compelling story in this issue with two guys from somewhat similar circumstances. Jared Feldman and Dan Smith, co-founders of Fora Financial, sold a part of their company to Palladium Equity Partners LLC late last year. Fora fittingly means marketplace in Latin and the pair still run the company from New York City. The two entrepreneurs are featured on this issue’s cover and should serve as a reminder to anyone reading, that the industry has so much more room to grow.
–Sean Murray
Year of The Broker Concludes – 2015 Recap
December 31, 2015
It was the Year of the Broker, a phrase that often conjured up images of easy money and inexperience. Lenders like OnDeck reacted by reducing their dependence on them. Responsible for 68.5% of their deal flow in 2012, OnDeck only sourced 18.6% of their deals from brokers in the third quarter of 2015.
But there’s money being made. One broker is on pace to do more than $100 million worth of deals annually after working as a plumber eight years ago. Another went from sleeping in his car to driving a Ferrari. Meanwhile, brokers like John Tucker are basically saying just the opposite. Tucker has repeatedly taken to AltFinanceDaily to preach things like “minimalism,” a practice of living below your means to a point where you can survive, and telling everyone it’s okay to embrace the satisfaction of a middle class life.
So is it the end of days or just the beginning?
In October, initial survey results of top industry CEOs revealed a confidence index of 83.7 out of 100, but out there on the street for the little guy, it’s been a tumultuous year. Things like commission chargebacks have hit brokers at unexpected times, with several funders privately telling us over the year that rogue brokers have closed their bank accounts or frozen the ACH debits in order to avoid giving the commissions back.
In 2015, brokers sued their sales agents and sales agents sued their employing brokers. Deals got backdoored, deals got co-brokered, and soliciting deals anonymously got banned from industry forums. Stacking continued mostly unfettered but is being pursued in the court system by funders allegedly injured by it. Brokers took over Wall Street and are supposedly being watched by regulators. Oh, and robo-dialing? Brokers should probably steer clear of that, just as underwriters should ditch paper bank statements.
It’s a lot to manage. Sometimes for a broker, just losing a deal can make them so sick that they have to go home. That’s apparently what happens when you don’t answer the phone fast enough. At least one said there’s no room left for more competitors so if you were thinking of starting a brokerage now, $2,000 won’t be enough.
But things could be worse. In 2015, IOU Financial was under attack by Russian nuclear scientists, a story that was more truth than exaggeration. In the end, Qwave Capital acquired a 15% stake in IOU.
An OnDeck class action lawsuit that looked bad at first turned out to be mostly based on the words of a convicted stock manipulator with a short position in the stock. The case is still ongoing and OnDeck’s stock price is down 50% from their IPO.
In 2015, two guys lost God but found $40 million (although numerous sources say that number is off).
“Madden” no longer means the football video game and Section 1071 is not a seating area in a stadium.
An RFI turned out to be something not to LOL about. Despite an overwhelming response from lenders and funders, the Treasury isn’t completely sold.
Things weren’t so automated in 2015 despite the cries of technological disruption. Maybe that’s why it feels like 1997. Manual underwriting still dominated and bank statements still matter as much as they ever did. God declined loan applications, Google rigged the search results, and a mayor declared war on merchant cash advance (and then never spoke about it ever again after being re-elected).
Lobbying coalitions formed. NAMAA became the SBFA. The CFPB lied and community bankers testified.
But things are looking up. Brokers can obtain outside investments, get acquired, or make millions through syndication.
Bad Merchants are now ending up in more than one bad database, though a deal for the ages slipped through the cracks. Other merchants went to jail. Square went public and brought merchant cash advances along with them. The industry beamed its message through Times Square and one Democratic congressman has asked God to bless it all.
It was a crazy year. Marketplace lending became an acknowledged term (and the name of a conference) and already companies under that umbrella have been linked to presidential candidate (and desperate loser) Jeb Bush and the San Bernardino Terrorists. The FDIC had a few things to say and SoFi went triple-A. Marketplace lending is making a lot of people money, but when looking at the tax implications is there something funny?
In 2015, the big boys shared their wisdom and their figures. Turns out, it was beyond hyperbole. Brokers experienced an incredible rise or they pawned their ferrari to the other guys. Some focused on a specific crop, while others are trying it over the top. California sucked, John Tucker tucked, and one lender got totally F*****. In 2015 some funders got tanked, so in 2016 we’ll all be AltFinanceDaily.
Happy New Year!
Merchant Cash Advance APR Debate (Sean Murray v Ami Kassar)
November 24, 2015The other day, Inc. writer and loan broker Ami Kassar took some time out of his day from taking photos of his shadow in the park to engage me in a debate about the use of APRs in future receivable purchase transactions. He was apparently very bothered by my analysis of Square’s merchant cash advance program which has transacted more than $300 million to date.
To clarify my position here, I am indeed in favor of transparency, so long as it’s intelligent transparency. Coming up with phony percentages based on estimates and applying them to transactions where they don’t make sense is not transparency. Similarly, advocating that merchant cash advance companies and lenders alike move away from a dollar-for-dollar pricing model to one that requires the seller or borrower to do math or hire an accountant is also not transparency.
Even a Federal Reserve study that attempted to prove merchant cash advances were confusing inadvertently proved that APRs in general were confusing. If someone doesn’t know how to calculate an APR, then it’s unreasonable to assume that they could work backwards from an APR to determine the dollar-for-dollar cost of capital. In effect, APR is a surefire way to mask the trust cost despite arguments to the contrary.
My unplanned debate with Ami Kassar on twitter is below:
Sorry Ami. The only thing unclear is your argument.
Madden v. Midland Appealed to the US Supreme Court
November 15, 2015The Madden v. Midland decision has been appealed to the US Supreme Court and the future of non-bank lending potentially hangs in the balance. The introductory statement reads as follows:
This case presents a question which is critical to the operation of the national banking system and on which the courts of appeals are in conflict. The National Bank Act authorizes national banks to charge interest at particular rates on loans that they originate, and the Act has long been held to preempt conflicting state usury laws. The question presented here is whether, after a national bank sells or otherwise assigns a loan with a permissible interest rate to another entity, the Act continues to preempt the application of state usury laws to that loan. Put differently, the question presented concerns the extent to which a State may effectively regulate a national bank’s ability to set interest rates by imposing limitations that are triggered as soon as a loan is sold or otherwise assigned.
Several attorneys have said off the record that the likelihood the US Supreme Court would actually hear the case is about 100 to 1, because the issue lacks sex appeal. Gay Marriage, Obamacare, these are the type of things that make their way through the system.
Nevertheless, the petition argues the matter at hand:
The Second Circuit vacated the judgment, holding that the National Bank Act ceased to have preemptive effect once the national bank had assigned the loan to another entity. App., infra, 1a-18a. In so holding, the Second Circuit created a square conflict with the Eighth Circuit, and its reasoning is irreconcilable with that of the Fifth Circuit. The Second Circuit also rode roughshod over decisions of this Court that provide broad protection both for a national bank’s power to set interest rates and for its freedom from indirect regulation. And it cast aside the cardinal rule of usury, dating back centuries, that a loan which is valid when made cannot become usurious by virtue of a subsequent transaction.
The Second Circuit, of course, is home to much of the American financial-services industry. And if the Second Circuit’s decision is allowed to stand, it threatens to inflict catastrophic consequences on secondary markets that are essential to the operation of the national banking system and the availability of consumer credit. The markets have long functioned on the understanding that buyers may freely purchase loans from originators without fear that the loans will become invalid, an understanding uprooted by the Second Circuit’s decision in this case. It is no exaggeration to say that, in light of these practical consequences, this case presents one of the most significant legal issues currently facing the financial-services industry. Because the Second Circuit’s decision creates a conflict on such a vitally important question of federal law, and because there is an urgent need to resolve that conflict, the petition for a writ of certiorari should be granted.
Brian Korn, a partner at Manatt, Phelps and Phillips, told the LendAcademy blog in an interview that the Court could rule on the motion at any time and that it takes 4 out of 9 justices to agree to accept the case.
The plaintiff, Madden, has until December 10, 2015 to file a response to the petition.
Meet the Source: How Jared Weitz and United Capital Source became one of the industry’s fastest growing shops
October 23, 2015Jared Weitz came from humble beginnings and nearly settled for a humble fate. But associates say an ordinary, uneventful life wouldn’t have suited him – he works too hard and figures things out too quickly.
Almost ten years ago Weitz, 33, was parking cars to earn money for community college. After finishing at St. Johns University, he almost made plumbing his career. But now he’s CEO of United Capital Source LLC, an alternative-finance brokerage with deal flow of between $9 million and $10 million a month and an annual growth rate of over 65 percent.
Business associates, former bosses and his small cadre of employees all seem to revere Weitz for his honesty and straightforwardness. They consider him a personal friend. They say he continues to grow as a businessman and as a human being while taking pleasure in helping others do the same.
Geographically, Weitz has the good fortune to know where he belongs – the city of New York is in his DNA. “Every time I fly back,” he said, “I’m so happy to land.”
His love affair with the city began in Brooklyn. He was born there and raised in a Brighton Beach apartment in the shadow of Coney Island. When he was 16, the family moved to Oceanside on Long Island.
As the second of six children, Weitz had to come up with the money for college on his own. “My older sister and I had to pay our way,” he said. “Everybody else, my dad was able to cover.” He started school at Nassau Community College, selling cell phones and parking cars at night.
But then came an abrupt change. Once Weitz saved enough money, he transferred to Tulane University in New Orleans to pursue a relationship with a woman who was finishing her studies there. He attended classes part-time, worked as the athletic director at the Jewish Community Center, tended bar in a Mexican restaurant and served summonses for a law firm.
The relationship with the woman fizzled, but Weitz made lasting friendships during his days down south. His old roommate in New Orleans, who now practices law in Atlanta, serves as counsel for United Capital Source.
When Weitz had been in New Orleans for two years, Hurricane Katrina struck. He evacuated to Houston, where he stayed in a Holiday Inn for two weeks before realizing he wouldn’t be able to return to southern Louisiana anytime soon. The magnitude of the devastation was just too great.
Shouldering the duffel bag of belongings he had managed to pack on his back during the evacuation, he returned to New York, enrolled in St. John’s University and began working in sales for Honda Financial Services and parking cars.
Weitz had started school expecting to become a teacher. He had grown up with younger siblings and liked leadership roles, which convinced him teaching would be a good fit.
Still, many of his college jobs had required him to sell. As a bartender, for example, he promoted drink specials. As an athletic director he convinced people to sign up for classes. “Everything that I took to naturally wound up being in the sales, marketing and finance arena,” Weitz observed.
When he was nearly finished at St. John’s, Weitz was parking a car for an acquaintance who offered him a job as a union plumber. Suddenly, he was making $27 an hour and had health benefits. “It was a big breather for me,” Weitz recalled.
He quit his three jobs and labored as a plumber from 7 a.m. to 3 p.m. School started at 3:30 p.m. for him and stretched into the evening. But when he finished his degree, working as a teacher for $35,000 to $40,000 a year no longer seemed attractive.
Besides, his plumbing work didn’t center on toilets. On typical commercial plumbing jobs he did things like install air, medical and gas lines in hospitals. He was reading blueprints and bidding for jobs. A promotion to foreman didn’t seem that far off.
At about the same time, near the end of 2006, a friend, Mike Caronna, landed a job at Bizfi, formerly known as Merchant Cash and Capital (MCC), The company, which had just started and had only a few employees, was looking for underwriters.
As fate would have it, Weitz fell into a conversation with a fellow union plumber, one who had been on the job for 30 years. The older man reminded him that his wages would never climb much higher than they were right now. The veteran plumber then showed the younger man his hands, bent from decades of holding tools. “That got me thinking,” Weitz said.
He asked his friend Caronna to arrange a job interview at MCC. He got an offer and took a 90-day leave from his plumbing job to give the world of finance a try. “After about two weeks, I knew it was for me,” he said of the alternative-finance industry. It was by then the beginning of 2007.
Weitz excelled as an underwriter, and the company CEO, Stephen Sheinbaum, picked him and four others for a sales contest. Sheinbaum gave them some leads and turned them loose. Weitz won the competition but asked his boss to help him gain experience in business development and operations before taking on a sales position.
Sheinbaum was happy to comply. “He is one of the best and the brightest in the space,” he said of Weitz.
So, at age 25, Weitz found himself building a business development department by cultivating relationships with ISOs and persuading them to send business to MCC. “It was amazing,” he said of those days. “That was a big opportunity.”
Weitz learned the mechanics of the business. He found that the right ISO can originate good deals and a bad ISO can ruin deals. He learned the politics of when to talk, when to remain silent and when to let someone vent.
Then Weitz and a good friend at MCC, Anthony Giuliano – who’s now managing partner of Sure Payment Solutions – worked out how they could improve the MCC sales effort. They pitched Sheinbaum on the idea of having a second internal sale force, and that led to the birth of Next Level Funding (NLF), a division of MCC.
Weitz and Giuliano each owned 10 percent of NLF, and MCC owned 80 percent. “I’m 26, about to be 27, and I’m like, ‘You did it, Man,’” Weitz said as he looked back.
After about four months, NLF absorbed MCC’s original sales division. Next, Giuliano and another executive, Paul Giuffrida, decided to leave MCC. Weitz felt torn. He felt an allegiance to Giuliano and respected Giuliano’s knowledge of programming – a subject that was alien to him. Yet Sheinbaum had provided Weitz a series of opportunities.
Weitz stayed at MCC but felt he deserved to become chief sales officer. When that didn’t happen, he sold his shares back to the company at a dramatically reduced price to extricate himself from a non-compete clause and set off to start United Capital Source (UCS).
With a five-figure investment, Weitz and his then partner, started UCS in January of 2011 in a 250-square-foot office in Long Beach, L.I. Weitz invested about 90 percent of the money he had saved while working at MCC.
Jon Baum left NLF with Weitz and became the first UCS employee. Within a week or two, Danielle Rivelli, left NLF to join UCS, and Weitz put the remaining 10 percent of his savings into the business to meet the expanded payroll. Today, Baum and Rivelli are UCS sales managers.
The first month UCS was open, it funded $240,000 in deals. “It just felt good to be on my own and start funding deals,” Weitz said. From the beginning of UCS, he won praise from funders for bringing them the right kind of deals with merchants who were likely to repay.
“He really has the pulse of the marketplace and what a lender is looking for,” said Todd Sherer, who handles business development for Entrepreneur Growth Capital. “He doesn’t waste time giving you transactions that don’t fit in your box.”
That’s because doing things right means a lot to Weitz. “He is one of the most straightforward, honest, high-integrity people I have met in the industry,” said Steven Mandis, adjunct associate professor at the Columbia University Business School and chairman of Kalamata Capital LLC.
He’s won the OnDeck seal of approval. “OnDeck has a rigorous and extensive background check process as part of our broker certification process,” said Paul Rosen, OnDeck’s chief sales officer. “Jared Weitz and United Capital have passed our screens and process and are currently active brokers for OnDeck.”
And with time, Weitz has learned patience. He was sometimes short with funders when he started his company but has matured into a pleasant person to deal with, said Heather Francis, CEO of Elevate Funding. “I’ve seen that growth with him,” she said.
All of those good qualities soon came together to help UCS succeed. Within four months of its launch, the company rented a 1,500-square-foot office in Garden City and hired two more people. Next came a 3,200-square-foot office in Rockville Centre and three more employees.
“The company was growing and gaining traction,” Weitz recalled. “I bought out my original partner.” Since then, Vincent Pappalardo has invested in UCS and become a minority partner.
Meanwhile, the lease was expiring on Long Island, and Weitz felt the time had come to move to Manhattan. That would enable the company to draw employees from throughout the region and not just Long Island.
“We decided to bite the bullet and pay the excess money to move to the city because we believed it would be better for the business,” Weitz said. He added two people and rented a 5,500-square-foot space near Penn Station in the Garment District in September of 2014.
Within three months of making the move to Manhattan, business doubled. “Being in a faster-paced environment caused the business to go through another growth phase,” he said. After nine months in the city, UCS is now taking over a whole 8,500-square-foot floor of the same building.
UCS remains a small shop in terms of headcount with 21 people, but the company’s funding numbers equal the output of many brokerages five times its size. Twelve of the UCS employees work in sales, with the others engaged mainly in underwriting, operations and customer service.
Less than 2 percent of UCS’s funding volume comes from broker business. “We self-generate all of our business,” Weitz said, declining to elaborate too much on his company’s marketing efforts.
“My salespeople – bar none – are the best in the industry,” he claimed. “Much like the Navy has the SEALS and the Army has the Rangers, there are groups in the industry that can do triple or quadruple what other people do because that’s just the way they are.” His people fund an average of $750,000 per month per person in new business, while his renewals reps fund well into the 7-figure range per person.
UCS salespeople achieve their results because they have detailed knowledge of the industry, Weitz said. The staff’s understanding of alternative finance doesn’t end with sales but also includes underwriting and finance, he noted. “That’s what makes you a very good and knowledgeable sales rep,” he maintained.
His salespeople don’t just tell a client what he or she wants to hear. They take the time to understand the client’s financial situation. “They know how to read a profit and loss statement, a balance sheet and tax returns,” Weitz said.
ARE THE BEST IN THE INDUSTRY”
While 90% of Weitz’s sales team has a college degree, most of the salespeople have come from outside the industry, he said, noting that one was with Sleepy’s, the mattress company. Another was selling memberships at a gym, one worked for a credit card processing company, two were barbers and one had just graduated from college.
UCS doesn’t make double-digit commissions because the company isn’t over-charging merchants, Weitz maintained. The company does not obtain excess funding that a customer can’t afford or increase the factor rate to dangerous levels, he noted.
“You’re not really helping the merchant” by providing too much capital, Weitz asserted. “You’re sucking the blood out of him before he goes away. That’s not why I’m in business.”
A clean record will also prove beneficial when federal regulation comes to the industry, he said. Integrity in the workplace can also spill over into other parts of a person’s life, Weitz believes.
As UCS grew larger and Weitz grew older, he saw his employees rent their first apartments and then buy their first homes. He learned then that he had taken on more responsibility than was apparent to him at first.
To accommodate the employees he added a human relations department and commissioned a company handbook. He’s also started marketing, finance, operations and other departments.
He’s lost only four employees because he pays them well, respects their time and doesn’t view their youth as a liability.
Meanwhile, talking daily to merchants and hearing about their heartaches and triumphs has humbled and matured Weitz. Seeing how the merchants’ choices panned out or fell short also shaped him and helped him grow up a little, he said.
Weitz has found time in his 70-hour workweek to meet his future bride. They’re planning to wed next year, and he plans to invite his entire staff. “It wouldn’t feel right without them,” he said.
Weitz has skipped the Ferrari, Rolls Royce and mansion because he didn’t feel he needed them. But even without those status symbols, it’s clear that Weitz has avoided settling for a humble fate.
As for what comes next, UCS is said to be developing an online marketplace to take their business to the next level, though Weitz declined to provide specific details about how it will work. “We’re on pace to do more than $100 million worth of deals a year,” Weitz said. “And as far as we’ve come, I feel like this is still just the beginning.”
