New Jersey Debt Settlement
In New Jersey, anyone paid to help negotiate with creditors on your behalf, or who collects money from you to pay them, is a debt adjuster, and needs a license from the New Jersey Department of Banking and Insurance. Only consider companies that can show you their New Jersey debt adjuster license. In the future, the rules about whom you can hire to negotiate debts on your behalf may change. Two bills in Trenton would let for-profit businesses act as debt adjusters, and would exempt anyone practicing law. But they are just proposals so far, not law yet.
The many sales pitches out there will all promise you massive savings. They often promise to cut your monthly payment in half and give you just one payment to put into an escrow account with them. Sadly, though, the promised savings are often unrealistic. The Consumer Financial Protection Bureau says customers of debt settlement companies usually pay about 20 percent or more of what they owe in fees. You can often settle directly with your creditors. The Federal Trade Commission has rules limiting what debt relief companies can say and do when selling by phone. They can’t collect a fee until at least one debt is settled and you make one payment under that deal. Plus since May 2024 misleading statements on business to business sales calls are banned too.
UCC Lien
You may think it is better to have judgment from a creditor instead of a UCC lien. But a UCC (Uniform Commercial Code) lien can be worse. When an owner stops paying, the funder often files a lien and mails copies to the business’s processors and customers with instructions to send all money to the funder. The owner then learns their bank account and receivables are frozen, but no progress has been made on bills. Any fees you paid for a settlement that didn’t work are money you can no longer send to your creditors. You can have trouble canceling, or find that fees already paid are non-refundable. While you try to get their numbers to add up, your funders add the fees in their contracts: typically insufficient funds (NSF) about $35 each time; stop payment $500 to $5,000; default fee $2,500 to $5,000; and third-party interference $2,500 to $5,000.
Confessions of judgment: A Confession of Judgement (COJ) is an upfront agreement to have a judgment entered against you if you fail to repay. By signing a confession of judgment, you also waive the right to defend yourself against the lawsuit. A 2020 law banned business funders from using CoJs in the Garden State. But they can still be in contracts (they just have no legal teeth). New York stopped allowing out-of-state COJs in 2019. Funders simply switched to filing CoJs in Texas, Illinois, and Utah. Most just sue for a judgement instead. A judgment won in another state can be domesticated, meaning it is brought into New Jersey to reach assets here. This is becoming a more popular step for creditors to take as MCA defaults grow and funders are more aggressive in getting paid what’s due.
Settlement Is a Great Option for Some Owners
Settlement is a great option for some owners and a disaster for others. A true merchant cash advance is not a loan and buys future receivables. For a true merchant cash advance, the funder should not be allowed to make collections out of the merchant account if no funds are coming in.
Most merchant cash advances carry a personal guarantee. You can do a personal bankruptcy and discharge the personal liability but the business still owes it so the MCA still comes after the business. A business bankruptcy leaves your personal liability in place. A small business can file a Subchapter V Chapter 11 only if total debts are $3,424,000 or less.
A settlement has a tax side. Generally, when a lender cancels $600 or more of debt it has to file IRS Form 1099-C, Cancellation of Debt.
Small Business Development Centers
When you talk to a settlement company, ask if you will be left with any lawsuit risk after the settlement and if the company follows the FTC rule barring them from charging fees before a settlement happens and payments are made. Ask if a settlement is the right option or if another plan could get you out of debt sooner with a lesser risk of lawsuit.
Before you hire anyone to help with your debt issues, talk to the New Jersey Small Business Development Centers. There are seven regional centers. The SBDC’s have counselors paid by the SBA to assist small businesses at public colleges and universities. All offer one-on-one business consulting and most is free.
