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A confession of judgment is a clause within a loan agreement that allows a lender, if the borrower has defaulted, to obtain a judgment against the borrower without following regular court procedures. The lender can use the signed confession to garnish the borrower’s bank account or seize assets. Confessions of judgment are most common in merchant cash advances and online loans.
When you obtain a small business loan, you will need to sign a loan agreement with the lender. Like most contracts, loan agreements can be long and difficult to understand for a layperson. One of the clauses in your loan agreement—one that could significantly impact your business’s future—could be a confession of judgment.
A confession of judgment gives your lender the power to obtain a judgment against you in the event that you default on the loan, without notifying you or following usual court procedures. You can end up losing your business if the lender decides to enforce a confession of judgment.
Although confessions of judgment have been around for decades, most small business owners don’t know how powerful they can be. Confessions of judgment can seriously limit your rights, so it’s important to understand exactly how they work and what you can do if one is used against you.
You can think of a confession of judgment as a legal shortcut. A confession of judgment, also called a judgment by confession, confessed judgment note, or cognovit note, allows a lender to obtain a judgment against you while bypassing regular legal procedures. This is a powerful tool—with a signed confession of judgment in hand, the lender can wipe your bank account or seize your business assets without giving you the opportunity to defend yourself.
The purpose behind confessions of judgment is to facilitate a quick resolution when borrowers default on a loan. Lenders used this legal tool frequently during the 2008 economic crisis. Unfortunately, confessions of judgment can also leave borrowers scrambling.
The process starts when the lender finds that you’re in default of your business loan agreement. Maybe you missed several payments or violated some other term of your contract, such as using loan funds for an unauthorized purpose. The lender will typically notify you in writing that you’re in default of the loan. Some loan agreements will give you a specific amount of time to cure the default. If you don’t remedy the situation in the specified time frame, the lender’s attorney can go to court to enforce the confession of judgment.
The specific way in which a confession of judgment works varies by state. However, signing a confession of judgment can mean:
As you can see, confessions of judgment seriously limit a borrower’s rights in the event of a default. You’re basically saying that you will automatically admit you broke the contract, and that the penalty can be imposed on you without you even having the opportunity to explain your side of things.
The good news is that many states either prohibit or restrict confessions of judgment. And not all business loans contain confession of judgment clauses. A borrower can also file petitions and motions to attempt to hold off the confession of judgment from being enacted.
Next, we’ll look at state laws and which types of business loans are most likely to include confessions of judgment.
Confessions of judgment are only permissible in some states, so depending on where your business is located, you might never have to deal with this burdensome legal tool. Plus, confessions of judgment are more popular with certain kinds of loans than others.
According to Farid Yaghoubtil, a lawyer and founder of Downtown LA Law Group, “Some states disallow confessions of judgment language altogether, which prevents lenders from being able to quickly target a small business and sap their funds. Other states do not have any regulation on the language.”
More specifically, states can be divided into three categories in terms of confessions of judgment—states where they are allowed, states with limits on their use, and states where they are prohibited.
Confessions of judgment are more common with financing that’s geared toward or available to borrowers with lower credit scores. “Private lenders,” says Yaghoubtil, “are more likely to include confession of judgment clauses in their contracts than bank lenders. Small businesses are more likely to need a loan than large businesses, as large businesses can likely go to other sources.”
The following types of financing often include confessions of judgment in states where they are legal:
In each of these cases, you get fast, relatively easy access to capital, making them good options for startups and borrowers with lower credit scores. But, lenders limit their own risks by charging high interest rates and sometimes including confessions of judgment.
Conventional bank loans and SBA loans typically do not contain confessions of judgment because these loans cater to more creditworthy borrowers and are secured with valuable collateral.
A confession of judgment clause might be labeled as such in your loan agreement. But other times, the contract might simply say that the lender can debit your account, sell your assets, or declare the loan due without notice. A confession of judgment might also be included as part of a personal guarantee.
Here’s an example of a confession of judgment from legal search engine LawInsider:
Photo credit: LawInsider.com
Sometimes, your original loan agreement might not contain a confession of judgment. But, let’s say you have a delinquent loan and negotiate a payment plan with the lender. As a condition of the payment plan, the lender might ask you to sign a confession of judgment.
The best course of action is to always pay your business loan on time. If you’re struggling with payments, contact your lender right away. And if you’re in doubt about whether your loan has a confession of judgment clause or what its impact may be, you should hire a business attorney to review your loan agreement.
When you’re shopping around for a business loan, it can be tempting to go with your very first offer, feeling like you can handle any issues later. But you should carefully evaluate the risks of signing a loan agreement that includes a confession of judgment.
By signing a confession of judgment, you’re signing away your right to defend against a lender’s claim that you’ve defaulted on a loan. If a lender enforces a confession of judgment against you, you can file a petition or motion to have it invalidated. Make sure you do the following before signing a loan agreement that has a confession of judgment:
If a confession of judgment clause catches you unaware, you can also try to have it invalidated later. Craig R. Tractenberg, attorney and partner at Fox Rothschild LLP, says that “confession of judgment provisions are frequently challenged in court upon enforcement, and courts are liberal in granting relief, striking, or modifying judgment because of the oppressive nature of the clause. You can ask a court to issue an injunction against the lender in certain circumstances against using the clause.”
The problem is that you might not even know that a lender is using a confession of judgment against you until they’ve debited your bank account or seized your assets. Plus, it’s not enough to claim that you didn’t know what you were signing. You’ll need to show a specific reason—such as duress or fraud—for the court to invalidate the confession of judgment.
If you are seeking a business loan with bad credit, then agreeing to a confession of judgment might be the price you have to pay to obtain some kind of financing. If you’re determined not to sign a confession of judgment, you can improve your credit score and apply for a bank loan or SBA loan. You can also try to negotiate with the lender. For example, you might be able to offer more collateral or agree to a slightly higher interest rate in exchange for the lender removing the confession of judgment.
Say you do end up going with a loan that contains a confession of judgment, and the lender ends up acting on it. Is there any way to get your money back?
In short, no. Our best advice is to hire an attorney—which may be hard to afford considering a lender just acted on a confession of judgment against you. Even still, you did sign a legal contract, so you’re in a bit of a rough spot.
A couple of tactics you can try are negotiating a settlement with your lender (i.e., try appealing to their better angels), or attempting to have the confession of judgment vacated. You can do this by proving that the terms meant to trigger the confession of judgment were never met. It’s also possible to prove negligence on behalf of the lender by not making it clear what rights you were giving up when you signed your confession of judgment.
But the best way to avoid being in this situation is to do your due diligence before signing that lending agreement. Be sure to ask about the lender, and see what others have to say about them. You also need to check what state they are headquartered in, as this determines whether or not they can include a confession of judgment in their loan agreement. And if they refuse to give you a loan without a confession of judgment, see if they will offer you any other guarantees.
At this point you should know to be extremely wary of confessions of judgment, but one Florida business saw just how destructive a confession of judgment note could be.
Last year, Bloomberg published an expose on Yellowstone Capital, a lender that sold businesses high interest loans, then bankrupted them when they defaulted via a confession of judgment.
According to the article, a husband-and-wife-owned Florida real estate agency received a $36,762 loan from Yellowstone. They had been paying their loan back on schedule, but Yellowstone still convinced a court in New York to act on the confession of judgment contained in their loan agreement. (New York has since amended its laws to prohibit filing a Confession of Judgment against non-New York residents.) The couple had their bank accounts frozen, and Yellowstone ended up taking $52,886.93. A month later, their business collapsed.
“Somebody just comes in and rips everything out,” said Doug Duncan, the co-owner of the real estate firm. “It’s cannibalized our whole life.”
Fortunately, the federal government is taking actions to make confessions of judgement illegal. According to a recent report by the Washington Post, the U.S. House Financial Services committee voted in favor of prohibiting the use of confessions of judgement in small business lending contracts.
The bill will now head to the House floor, although there is no guarantee it will be passed.
Business loans come in many shapes and sizes, and getting the right one for your business is important to your company’s future success. You’ll be comparing business loans along many different factors, including cost, loan amount, and speed.
While loan shopping, don’t forget to read the fine print of any potential business loan agreement. The agreement might contain a confession of judgment or other legal language that could impact you financially later. Make sure you understand what each clause means and consult a lawyer when necessary. The more you know now, the better you can protect yourself and your business in the future.
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