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merchant cash advance breach of contract

What Happens with a Merchant Cash Advance Breach of Contract?

As with a small business loan, a merchant cash advance involves a contract between you and your provider. If you stop making your payments, it could result in a merchant cash advance breach of contract, and the lender could sue you.

Dealing with merchant cash advance legal issues can be a pain for small business owners. It can also lead to even more significant problems for you and your company. If you’re dealing with a merchant cash advance breach of contract, here’s what you should know.

How Does a Merchant Cash Advance Work?

A merchant cash advance (MCA) is a type of financing you can get for your small business. It’s not a loan, though, but an advance on future sales. You receive money upfront from the lender, and then you can pay it back in one of two ways:

  • A percentage of your credit and debit card sales: The MCA provider will automatically withdraw a portion of the sales you receive from debit and credit card transactions until you’ve repaid the advance in full plus fees.
  • Fixed daily or weekly withdrawals: As with an installment loan, the lender will take monthly withdrawals from your business bank account, typically daily or weekly instead of monthly.

The fees you pay are based on a factor rate rather than an interest rate. For example, if your advance is for $20,000 and your factor rate is 1.5, you’ll end up paying a total of $30,000.

If you’ve defaulted on your obligation, the merchant cash advance breach of contract will likely result in a lawsuit. But unlike many other situations, you’ll have a harder time fighting back with MCA providers.

Why Merchant Cash Advances Are Different

With other types of small business debt, it’s possible to work something out before the MCA funder files a lawsuit. However, with merchant cash advances, things work a bit differently.

Many contracts from MCA providers include what’s called a confession of judgment. When you sign a contract that includes this clause, you’re effectively signing away your rights to defend yourself if there’s a breach of contract and the funder files a lawsuit to collect.

In other words, the funder can simply file the lawsuit and get a judgment to start seizing your business assets to recoup its money.

In many cases, merchant cash advances also require a personal guarantee. This means that if your business can’t repay the debt, you’re liable for paying it back with your personal assets. So if the funder files a lawsuit, it could also impact your personal finances, not just your business.

Steps You Can Take to Defend Yourself

While a confession of judgment doesn’t give you a lot of options, it’s not ironclad. In some states, you may be able to fight it if you can prove any of the following:

  • The confession of judgment doesn’t comply with state law or local rules.
  • The confession of judgment is inaccurate in terms of the parties involved and the amount owed.
  • Your breach of contract doesn’t meet the stipulations to trigger the confession of judgment.
  • The funder was negligent in making it clear what the confession of judgment meant when you signed the contract.

If you have reason to believe that any of these are true, you may be able to request that the court vacate the confession of judgment. If you’re facing merchant cash advance legal issues, it’s a good idea to enlist the help of an attorney who can help you make the right moves.

How to Avoid Merchant Cash Advance Legal Issues

Ideally, you’d opt for another type of financing for your business from the get-go. Merchant cash advances are expensive, there’s very little regulation surrounding them (which gives providers an advantage), and the contracts work heavily in favor of the funder.

But if you have one and you think you might default on your obligation, reach out to the MCA provider to see if you can get on a modified payment plan. Depending on the contract, there may be a set plan that you can use if you can’t pay as initially agreed.

Even if it’s not directly spelled out in the contract, it may still be in the MCA provider’s best interests to work with you, so that it can avoid legal fees.

Alternatively, you can try to settle the debt for less than what you owe. Again, this may be a difficult sell if the MCA provider can get more through a lawsuit, even with legal fees. But if you can show that it’s in their best interest to negotiate a settlement, you could avoid a costly and challenging process.

Finally, look for opportunities to get out of the merchant cash advance. For example, you could consolidate the debt using a term loan, apply for a secured loan or line of credit, or even file bankruptcy.

That said, consider bankruptcy for your business only as a last resort.

Why You Should Consult with an Attorney

Regardless of what you plan to do, it’s a good idea to speak with an attorney who can help you understand the entire situation and all of your options, including ones you may not be aware of.

Tayne Law Group is a debt resolution law firm with years of experience helping to strategize, implement and resolve business debts for businesses of all sizes.

Merchant cash advances and other forms of business financing have been an area of focus for Tayne Law Group since 2001, so we know the process and can help you find the best path forward for you and your business.

Our attorneys can help you save time by providing expert information that could take hours to research. We can also work with you to develop a tailored plan to keep your company running, increase your cash flow and resolve your merchant cash advance legal issues.

The process is straightforward, and the initial consultation is free, so you can determine if we’re the right fit for you. An experienced staff member from the firm will discuss the situation and some solutions from our attorneys based on your particular situation.

Even if you decide to go it alone, taking the time to consult with a professional can give you the information and confidence you need to make the right decisions for your business.

The Bottom Line with a Merchant Cash Advance Breach of Contract

Merchant cash advances are best to be avoided in most cases. Between the high costs, predatory lending practices, and consequences for default, they can do a lot more harm than good.

If you’ve already taken out a merchant cash advance, whether or not you can make the payments, consider steps to get out of the contract before you have to deal with legal issues.

And if you’re in a situation where a merchant cash advance provider is suing you, look for ways to defend yourself against the confession of judgment in the contract. While there’s no guarantee you’ll get recourse from the court, it’s worth consulting with an attorney and developing a plan to protect both your business and personal assets.


6 responses to “What Happens with a Merchant Cash Advance Breach of Contract?”


    Took out an MCA with the understanding of no personal guarantee now I see they’re taking 2k a week and my business will fail because we dont make that much at all in a week. I need legal representation.

    1. Lea DeRosa Avatar
      Lea DeRosa

      Hi Eric,
      We are happy to speak with you regarding your matter. Please dial into the office at 631-470-8204 or email info@taynelaw.com

  2. Kyle Taylor Avatar
    Kyle Taylor

    My company may suffer monetary damages due to an MCA’s collection practices of contacting our clients.

    1. Lea DeRosa Avatar
      Lea DeRosa

      Hi Kyle,
      We are happy to speak with you regarding your matter. Please dial into the office at (631) 470-8204 or email info@taynelaw.com

  3. Christopher beck Avatar

    I about 18 to 20k with Everest Funding have been making the payments but it is destroying my cash flow for my company most of my customers are net 30 and my labor and operating cost are high i did 50k in revenue in July at around 50 percent margin and the rest of this year looks good so gonna pay it but like my cash flow I need monthly or bi weekly

    1. Lea DeRosa Avatar
      Lea DeRosa

      Hi Christopher,
      We are happy to speak with you regarding your matter. Please dial into the office at (631) 470-8204 or email info@taynelaw.com

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