August 2005 Archives

The key to making money when buying a discounted trust deed or mortgage is to be able to find the best notes at the best discounts with minimal to no risk. In other words, the key is to "sift the wheat from the chaff." This advice is especially important when buying a second.

Many of us have purchased and profited from buying second mortgages. However, as with any investment, you want to avoid any pitfalls. You should be on the look out for what FNMA calls "Silent Seconds." These are notes created from the sale of real estate with a seemingly good down payment, a new first loan and the second trust deed or mortgage note. However, the first lender is unaware of the second note, which is where the name "Silent Second" comes in. These notes are usually kept silent because the buyer cannot qualify for a large enough first loan.

An example...
Let's take a look at a real-life example. The buyer purchases a single family home for $135,000. The first lender agrees to make a loan of 80% or $108,000. Therefore, the buyer has to come up with $27,000, right? Normally this would be correct, but not in this case! The buyer and the seller make a side agreement to create a note outside of escrow and without the knowledge of the first lender. They claim the buyer has put down $27,000, but in reality he only puts down $15,000. The buyer gets the first loan for $108,000 and gives the seller a "Silent Second" for $12,000 which is the remaining balance.

The first lender is unaware of both the smaller down payment and the second note for $12,000. If the lender knew about these factors, it would have never approved the loan. Is this practice illegal? You bet it is! Do you want to buy these type of notes? NO!
Always examine the closing statement
So how can you tell if you have a "Silent Second"? One way to tell is to look at the closing statement which should include when the note was created. If the second you hold or are thinking about purchasing is not shown on the closing statement, then it's probably a "Silent Second."

But, here's another problem...What if the closing statement you have received from the note seller has been forged? What if the note seller has added in the second note to the original closing statement? Always cross check your documents with the documents from the title or escrow company before closing the transaction. This way you will be able to check whether the figures and signatures are correct.

A widespread problem
Many buyers and sellers of real estate enter into these types of "side" transactions without realizing that this practice is illegal. If deliberate fraud is involved (and what kind of fraud isn't deliberate?) then the penalties are severe. This is a very widespread problem. If you are careful, you can avoid this pitfall.

So, in short, always do your homework when buying any note! If it's a second trust deed or mortgage note, do a little more work! When you call or write to the senior lender to check the loan balance, also ask him if he is aware of a second note that exists.

Written by Russell T. Dalbey Dalbey the author of Winning in the Cash Flow Business.

One of the most questionable transactions in the seller-financed note industry is known as the "PARTIAL". A typical partial is your purchase of a certain number of time payments from the whole future payment stream of a note. For example, a partial would be your purchase of the next 60 payments of a 120 payment note. This deceptively simple sounding transaction is loaded with hidden problems.

Note buyers considering the purchase of a partial should always have their attorney examine the transaction and ask a checklist of questions beforehand. The potential problems of the partial are so serious that expert legal advice is essential.

SALE OR LOAN?

The most serious problem with your partial is that it may be interpreted either as a sale or a loan, giving rise to disastrous disputes. The purchase of a partial may be considered a simple sale of a number of time payments. It may also be considered a loan to the "seller" in which the note is put up as security. Sales and loans fall under different laws, and disputes about which kind of transaction it really is can have extreme consequences.

Thus, the first question you should ask your attorney about any partial is this: Is this transaction a sale or a loan? One of the most important legal tests in answering this question is intent. You, of course, intend the transaction as a sale, but if your "seller's" intent is that it is a loan, the overall intent of the transaction becomes unclear.

You should be particularly alert if your "seller" approached you first by asking to borrow against the Note. Even though you clearly tell the "seller" that you do not make loans, the "seller" may listen to your offer to buy a number of time payments on the Note and continue to think of the transaction as a loan. If your seller asks questions such as, "Well, isn't buying a payment stream the same thing as a loan?" you might have conflicting intent. Another sign of clashing intent is the "seller" subsequently asking "How is my loan coming along?" A certain sign of divergent intent may come after the partial transaction is completed, when the "seller" contacts you at the end of the year asking, "Are you sending me a statement saying how much interest I paid on my loan?"

How can an intelligent "seller" listen to your clear explanations that the partial is a sale, yet still think of it as a loan? The answer lies in the unclear nature of the transaction itself. If the "seller" borrowed against the Note, it would have the same end result as selling a time payment stream. The "seller" would give up payments for a period of time and when those payments were complete the "seller" would get the rest of the Note payments. The trouble with partials arises out of that simple fact: The end result of a sale or a loan is the same. So it is not unreasonable for the "seller" to continue thinking of the partial as a loan, even though you think of it as a sale. With that conflicting intent you may not be able to tell what kind of transaction you really have.

Even if language is included in the documents saying: "This transaction is a sale, not a loan" that does not necessarily clarify the intent. It could be argued that such a clause was deliberately included to disguise a loan as a sale. If the transaction was clear to both parties, with no reason to doubt its nature, such a clause would not be necessary. Courts may look at substance over form, and if the intent is unclear, regardless of what your written agreement says, other evidence outside of your documents may be weighed heavily in the court's eyes. So the next question to ask your attorney is: "Is the clause saying 'this transaction is a sale, not a loan' evidence of conflicting intent?"

You should be particularly cautious about clauses that say anything like: "If this agreement is ever construed to be a loan, the seller agrees to hold harmless, protect, defend, and indemnify the buyer from any damage, loss, liability and additional expense, and pay costs and attorney fees." Even though such a clause may appear to protect you from any claims the seller may file in a lawsuit alleging that the transaction is a loan, a court may view your agreement along with all other evidence, and decide that you have been deceptive by knowingly inserting this clause to wrongfully protect yourself. A judge may rule that this clause cannot be enforced. Ask your attorney: "If this transaction is ruled to be a loan, would this clause be enforceable?"

You should be prepared to defend yourself against any "seller's" claim that your transaction is a loan. But, in the event that a court rules that it is a loan, you need to ask your lawyer these questions about the consequences:

If this transaction is a loan,

Would it violate the usury laws of my State?

Would it violate the Federal Truth-in-Lending Act?

Would it violate the Uniform Consumer Credit Code?

Do I need a license to make a loan against personal property (the Note)?

Would I lose my money if the "seller" files bankruptcy?

What kinds of penalties would I face?

Usury laws regulate the amount of interest that can be legally charged on loans. A loan against a note is a loan against personal property, not a loan against real estate. The laws governing personal property loans are different from the laws covering loans on real estate, and you must avoid this potential confusion. If the interest rate (the yield) you make on the partial is higher than that allowed for a personal property loan, you could be subject to harsh money penalties as a usurer, and habitual usury offenders may be subject to criminal prosecution. It is essential that your lawyer explain these laws to you very carefully, especially if you or the "seller" are in a "usury-sensitive" State.

The Federal Truth-in-Lending Act may require disclosures for loans, such as the dollar amount of finance charges and the annual percentage rate computed on the unpaid balance of the amount financed. You may not make these disclosures during the partial transaction because you consider it a sale, not a loan. If the partial is ruled to be a loan, you may be subject to federal penalties under the Truth-in-Lending Act.

Some States have adopted the Uniform Consumer Credit Code that imposes rate ceilings and other restrictions on consumer credit and usury. If the partial is ruled to be a consumer loan, you may be subject to State penalties.

If a court rules you have made a loan to a consumer, using the note as security, your State may require a license to make personal property consumer loans.

Bankruptcy of "Seller"

What if the "seller" files bankruptcy and the bankruptcy court rules that your partial is a loan? The bankruptcy trustee wants to collect as much money as possible. There may be a powerful incentive to claim you are an unsecured creditor and therefore you must share the loss at so many cents on the dollar. Secured creditors, on the other hand, may obtain the full amount of the debt owed. Possession of the Note is your best protection to "perfect your security interest". Ask your lawyer: "What documents should be obtained in order to avoid being an unsecured creditor and losing my money?"

Keep in mind that documenting the transaction to protect yourself in case the bankruptcy court rules it is a loan may solve one problem only to create others. For example, the bankruptcy trustee might make usury claims against you if it's ruled to be a loan, even though you are considered a secured creditor.

Holder-In-Due-Course

There is another serious problem with partials. Ideally, you want the highest protection of your legal ownership of the Note which is the status called a "holder-in-due-course". This status confers significant legal advantages, protecting you from many claims of the seller, payor, and others. However, in order to be a holder-in-due-course, all of the Note must be transferred. Anything less is a "partial assignment" of the Note which may deprive you of holder-in-due-course status. Even if all of the Note is endorsed to you, a judge may examine your agreement to buy a portion of the payment stream and find that it is only a partial assignment. Ask your attorney; "Does this transaction allow me to be a holder-in-due-course?"

Internal Revenue Service Reporting

Another problem with partials is the fact that three parties are involved: you, the seller, and the payor. How to report the interest on partials to the IRS is a matter of considerable confusion. You receive interest income on the payments you bought. The payor pays interest on the entire Note balance. The seller's position may be unclear when it comes to interest received or paid. If all three parties, you, the seller, and the payor, send interest information to the IRS, all three forms are likely to show different amounts. Your form will show only the interest you received on the partial. The seller's form may show either, both, or none. The payor's form will show interest paid on the entire note.

The Internal Revenue Service may question this difference and trigger an audit.

Reporting the interest on a partial to the IRS is not the only source of confusion. How does the seller claim the sale of the partial to the IRS? The question of the seller's tax liability on that sale could be a determining factor in deciding whether or not the partial would be desirable for the seller. The seller may discover serious tax consequences in selling a partial. Have these tax consequences been evaluated? Does the sale still look attractive after considering the tax consequences? Are you responsible for advising the seller to contact a tax professional before entering into the partial? Some tax professionals might think the partial to be a loan and either declare it as loan income or not declare it at all. Would such a loan declaration, or the lack of any declaration, indicate that the seller intended the partial to be a loan?

Ask your attorney; "How should a partial be reported to the IRS?"

Securities

The transfer of part of a note may constitute a "pooling of interests". That is, your interest in the Note and the seller's interest in the Note are pooled together, and such pooling may be a characteristic of a securities transaction. In addition, the partial transaction may constitute the creation of an "investment contract" between you and the seller. This may place your partial transaction within the federal and state securities laws. You are expecting money and so is the seller. You may be basically forming some sort of partnership with seller, usually a complete stranger to you.

Partials are so murky by their very nature that it could be difficult to convince a court that your partial is not an investment contract. Since partials may be interpreted to constitute a pooling of interests and to be an investment contract, you should ask your attorney, "Is this partial a security? Do I need a securities license and what disclosures and registration are necessary?"

Fundamental Problems

You should ask your lawyer to discuss with you several fundamental problems with partials:

Seller Problems: There are many difficulties you may encounter with your seller. You may have difficulty locating the seller after a period of time. You may need to confer with the seller about a change in the terms with the payor. You may need to let the seller know that the payor is late making the Note payments and decide what to do about it. The payor may pay off the balance, and you may need to send the seller a share of the cash. Sellers, like anyone else, tend to move to new addresses as time goes on. Sellers sometimes pass away, or become legally incompetent.

Sellers sometimes sell or borrow against their share without telling you. You may find out, to your surprise, there are others who came into the picture after your partial agreement was made with the seller.

The worst problem is that many sellers, not being sophisticated in financial matters, do not understand the partial transaction. They have a certain dollar figure in their minds and expect to get their share of the money after the passage of time. The seller of a partial is the most likely person to sue you if the money expected is not received. You may be accused of having practiced unfair, deceptive, or unconscionable trade practices. You, perhaps being more sophisticated than the seller, may have to fight the seller in court defending claims that you had unfair bargaining status and the agreement was written too much in your favor.

Payor Defaults: If the payor quits paying, you and the seller have a serious problem. You need to have a clear understanding with the seller as to what happens if the payor defaults. When should you or the seller be notified of the default by the payor? Who has the right to negotiate with the payor to correct the problem before legal action is taken? Does the seller have to make the payments to you if the payor does not? Who has the right to foreclose and who pays for it? What if you want to foreclose against the payor but the seller does not? Who decides what type of legal action to take against the payor? When does the seller lose all rights? Do you and the seller both own the property after foreclosure? Who pays for and manages the property after foreclosure? There are endless questions, with few clear answers. Again, these questions are murky because of the nature of the partial transaction itself.

Accounting Mistakes: Three-cornered transactions are inherently prone to accounting mistakes. The payor on the Note, or the payor's agent, is at risk of receiving erroneous accounting information from you or your servicing agent if the payor wishes to sell the property and asks for payoff or assumption amounts. Because you or your servicing agent may only look at the transaction from a partial viewpoint, only the amount due you on the partial may be submitted, not what's owing on the entire Note including the seller's share.

Or, you or your servicing agent may report to the payor the correct amount owing on the entire Note and receive the money, but inadvertently neglect to forward the seller's share of the money.

Early or Late Payoffs: How to you divide the money between yourself and the seller if the payor pays off the Note sooner or later than originally agreed? The payoff amount of the note is completely dependent upon the time at which the payor pays it off, which is usually beyond the control of you and the seller. Even though the principal amount does not change with time, the interest amount is based on time alone. If the Note pays off sooner than required, the total amount of the Note payoff will be less than expected. If the Note pays off later than expected, the total amount will be more. Each situation has its unique problems.

If the payor pays off earlier than required, the total amount of the payoff will be less than expected. In some instances, the payoff amount will be so much less than expected that the seller will not receive any money at all because you get all the payments. In most cases of early payoff, the seller will receive some amount less than expected. The resulting upset can lead to a lawsuit against you by the seller.

If the payor pays off the Note later than required, the total payoff on the entire Note will be greater than expected. However, you will earn a lower interest yield rate because it took more time to collect the same amount of payments over a longer period of time than originally agreed upon. An example would be if you wanted 60 monthly payments, but it took 70 months to collect. In practical terms, that means your partial receives no interest for that last 10 months. You could want compensation for the lost 10 months, but have difficulty getting the seller to agree.

Miscellaneous

You need to have answers for all types of situations. For example, if you make too much money by getting a windfall because of an early payoff, might you be accused of extracting an unconscionable amount of money from the "seller"? What if the payor wants to change the terms of the Note? Who gets the late charges? Who should collect the payments? Who should pay the servicing charges? Who gets extra payments made by the payor and how is it figured into your transaction? Does the "seller" understand the transaction? Who should be named in the fire/hazard insurance policy? What exceptions will the title insurance company require on the title insurance policy? Will the title insurance company insure the transaction knowing the true nature of your partial? Should the public record show you and the seller both holding the security for the Note? What if the payor requests a partial release of the security or a subordination of the security. The possibilities are endless.

Conclusion

It is virtually impossible to foresee or anticipate every complication into a partial agreement. The longer the agreement grows, the less the "seller" is likely to understand it. If there is a legal challenge, a complicated agreement may make you look suspicious in the eyes of the court. The political and social attitudes of judges in your State may have an impact on how the law is interpreted. Because the partial is an inherently complicated and conflict ridden transaction, you must seek the counsel and assistance of your attorney to ensure all aspects of your legal position are scrutinized.

Written by Lorelei Stevens, President of Wall Street Brokers, Inc.

Looking for ways to boost your cash flow? As a small business consultant, I make these recommendations to my cash strapped small business clients:

1. Shoeboxes are for shoes, not business records.

Pardon my candor but, you will never have a successful business if you don’t systematically track your income and expenses, who owes you money, and who you owe money to. This is absolutely crucial. You don’t have to have a big expensive computerized system, although a computer program like QuickBooks certainly does a beautiful job. You can keep track of everything with a pencil and paper if you like. But, you’ve got to track basic information in a systematic manner. Without this vital information your business cannot flourish and your cash flow will always keep you up at night.

2. Getting your customers to “show you the money”.

The best way to get your customers to pay what is owed is to remove every possible excuse for nonpayment. Don’t extend credit unless it’s absolutely necessary. Establish credit policies to help determine who will get credit. Get an invoice into the bill payer’s hand as quickly as possible after the work is done or the product is delivered. Don’t be afraid to send a letter or statement or make a phone call reminding your customer his bill is due. Never be rude. Always be firm. Focus on preserving the relationship. If a customer has a legitimate gripe about your business do whatever you can to fix the problem.

3. Budget is not a four letter word.

Repeat after me, “Budgets are our friends.” Seriously! A budget is a plan. It helps you stay focused on what you need to achieve. For example, you can use your budget to help you achieve sales goals, determine how much you need to spend on advertising, how much you’ll need for materials, and if you can afford to pay overtime. Having a budget for your business is the difference between piloting a plane with instruments or flying blind in a fog.

4. A customer in the hand is worth two in the bush.

My very first customer is still with me. Over the life time of our relationship, she will be worth at least tens of thousands of dollars. Actually, she’s worth far more than that because she refers business to me regularly. It’s easy to get caught up in the search for new customers. But, never forget the ones you already have. What other services or products can you offer to them? How can you get them to refer their friends and colleagues to you? You can build a successful business around a small number of customers by providing them with excellent customer care and a range of solutions. Loyal customers are money in the bank, they’re easier to work with, and it’s less expensive to keep them happy than it is to find new customers.

5. The most powerful number in your business.

If you know only one number in your business it ought to be your Breakeven Point. Your breakeven point is the moment in time when your income equals your expenses. If your income is higher than your expenses, you have a profit. If your expenses are higher than your income you have a loss.

Why is this such a critical number? First of all, to find your breakeven point you need to know what all of your expenses are. How much does it cost you to produce your product or deliver your service? That includes how much you need to pay yourself. If your business isn’t able to support you, you’re not breaking even. Once you have your total expenses, you have a place to start. What do you need to do to achieve a level of sales high enough to cover your expenses? How many customers do you need to serve? How many products do you need to sell? If you can’t reach that income level, what can you do to cut your expenses?

Your whole business plan can flow from that one number. You can use your break even point as a powerful business tool to make decisions about marketing, strategy, plans for expansion, hiring a new employee, etc.

6. How to make friends and influence check cutters.

Once upon a time, I worked for a corporation—yes, me, the quintessential entrepreneur. One of my jobs was working in Accounts Payable. All day long I got calls from vendors. Not friendly social calls, mind you. Angry calls. Irritable calls. Annoying calls. Vicious calls.

And then there were the friendly vendors. The ones who took a moment to treat me like a human being. Guess who I knocked myself out for? Guess whose checks made it through the labyrinth of bureaucracy and out the door? Uh huh. The vendors who treated me with respect. Is that fair? Not at all. But, it is human nature.

Take the time to get to know the folks that cut the checks. Don’t be afraid to build bridges and establish relationships. You meet lots of interesting people and your cash flow will improve. One of my friendly vendors hired me away from the Cubicle City. I spent the next three years improving his cash flow from the other side. You just never know.

7. Why paying taxes is a cause for rejoicing.

The strategic approach of many small business owners is to have as little profit as possible at the end of the year. Otherwise, you’ll have to pay taxes. So year after year, small business owners make decisions in their businesses based on intentional lack of profitability.

Now, for the majority of small business owners, what the IRS considers to be profit is in actuality your paycheck. Are you working to lower your paycheck? Would you put up with that from an employer? By putting up with it from your own business, you condemn yourself to a life of poverty just to avoid having to pay taxes.

I won’t tell you that writing checks to the IRS is my favorite thing to do and I make sure I take every legal deduction I can, but if I’m paying taxes, it means I’m making money. I like making money. The bottom line is this: If you’re paying taxes, it means your business is making money. Go out and make more! Don’t let the thought of taxes hold you back. Think about it this way, even if you’re paying fifty cents of every dollar to the government, that’s fifty cents more in your own pocket. That’s a good thing!

A word of caution: don’t boost your earnings and spend it all. Make sure you plan ahead for the tax bill!

Caroline Jordan, MBA is a small business consultant and author of Mastering Cash Flow: A How-To Guide for Solving Small Business Cash Flow Problems. For more business success tips visit TheJordanResult.com. To get in touch, call Caroline at (207) 583-2630 or send an email to TheJordanResult@adelphia.net.

Source: EzineArticles.com

New financing programs especially geared to accounts receivable allow healthcare organizations to convert these assets into cash literally overnight and at costs below the prime interest rate. Certain pooled versions of the financing strategy include non-recourse features that guard against sharing bad debts among the participants. These pooled programs generally allow hospitals to continue managing and billing their own accounts.

For healthcare organizations under pressure to meet payroll, pay bills, or reduce debt, "selling" accounts receivable provides a new source for low-cost, readily available cash.
Asset-backed - or "securitized" - financing recently brought dramatic changes to the way financial institutions use assets (such as credit card receivables, automobile loans, and home equity loans) to reduce debt burdens and improve cash flow.

Now hospitals are following suit with similar results. By converting accounts receivable to cash or its equivalent, they can add muscle to financing day-to-day activities.

The method works like an internal bank and offers an alternate way of reaching traditional sources of capital, such as Wall Street firms, banks, leasing companies, and joint venture partners. The structure also resembles off-balance-sheet financing by removing receivables from the books and selling them on a non-recourse basis for their fair market value.

Source of working capital

Accelerating cash flow has become necessary for hospitals hardest hit by changes in Medicare's periodic interim payment (PIP) program. Previously, the program sent payments to hospitals twice each month, with a final adjustment made at the year's end. To better manage the Federal cash flow, the Health Care Financing Administration (HCFA) has instructed fiscal intermediaries to slow the payment of claims.

Third-party payers, in turn, slowed their payment cycles by using intense retroactive reviews of medical records, among other means. Modified payment methods by health maintenance organizations and preferred provider organizations have brought additional cash flow delays.

One of the most important benefits of selling receivables is that it permits hospitals to build working capital at a time when new sources of funds are limited at best.

Pressure to reduce the national deficit, for instance, could compel the Federal government to take steps toward limiting the use of hospital revenue bonds as tax-exempt investment vehicles. As a result, traditional financing through hospital revenue bonds could be modified to resemble that of Industrial Development Agency revenue bonds.

By selling receivables, hospitals gain welcome flexibility in managing their obligations. The method improves liquidity and cash flow through reduced days outstanding in receivables. Proceeds enable hospitals to retire some debts, thus holding down debt-to-equity ratios and enhancing borrowing power in the marketplace.

Because the method can reduce short-term debt through borrowing at lower interest rates over longer periods of time, it also helps maintain favorable credit ratings. This increases the likelihood of future transactions and enhances debt service coverage ratios.

While most hospitals borrow funds at or above the prime interest rate, selling accounts receivable allows them to reach capital markets at costs below the prime rate.

These savings and improved flexibility give hospitals the ability to pay vendors more quickly, creating an opportunity to negotiate better contracts and prices.

Receivables financing also allows hospitals to use new-found liquid assets to increase yields. For example, assets can be used as a more effective way of funding depreciation costs by investing receivable proceeds for longer than normal periods and at higher rates. If the maturity date on the investment is placed further out, yields are greater than under traditional terms.

By keeping internal banking transactions at arm's length, hospitals can use those funds to make loans to for-profit subsidiaries or joint venture partnership at market or below-market rates, without threatening their tax-exempt status.

A new concept

The concept of financing accounts receivable is relatively new for hospitals. Only recently has a variety of financing programs become available, most of them currently sponsored by banks, financial groups, and through group pooling arrangements.

Traditionally, hospitals had access only to factoring programs, a process that involved pledging their accounts receivable as collateral in exchange for cash. Exercising this option also depended on the hospital's creditworthiness. Covenants of hospital bond issues, however, often prohibited them from pledging those assets and using factoring as a source of capital.

On the other hand, accounts receivable financing, if done on a non-recourse basis, involves the actual sale of these assets in keeping with terms of the Financial Accounting Standards Board Statement 77, which views the transactions as true sales. Now, most hospitals can take advantage of the method without violating the terms of their bond covenants.

Banks have been the traditional source for both accounts receivable financing and factoring programs. Some have provided the service since the early 1960s.

Some banks have only felt safe financing hard-asset receivables and have refused to finance service receivables. Their reluctance is based on the fear that if the customer defaults on the loan, they will be left with nothing as collateral.

In many instances, the banks have financed the amount of the receivables, then assumed responsibility for collecting the accounts. Some have required accounts to be paid in monthly installments with pre-established interest rates, comparable to retail installment rate contracts.

Banks and other lenders use a variety of factors, some of them quite strict, to assess a client's suitability for their receivables financing programs. The criteria may include the size of the company, its credit rating, its total assets (minimum levels of working capital may be required), and the amount of the receivables. Lenders also may require a minimum amount to be financed.

Financial institutions only recently began to target hospitals as clients for receivables financing programs. Plans coming onto the market are geared specifically to hospitals, some with particularly attractive benefits.

One creative financing technique allows hospitals to sell their receivables overnight for cash and without recourse. This represents a major departure from the traditional factoring approach in which a hospital uses its receivables as collateral to obtain a bank loan for working capital and is responsible for repaying principal and interest.

The new non-recourse technique uses receivables to obtain cash by selling short-term commercial paper in the marketplace. By selling directly to investors, issuers of commercial paper eliminate the need to use a bank as an intermediary and can achieve significant savings over traditional financing mechanisms.

Investors like commercial paper programs because they are short term, maturing up to a maximum of 270 days, and are considered highly liquid. Issuers also are virtually assured of available funds, provided they maintain good credit ratings.

The first commercial paper program for financing healthcare receivables was introduced late in 1988 on behalf of a chain of psychiatric facilities.

The pooled approach

Commercial paper programs, which start with anywhere from $50 million to $100 million in assets, generally are not feasible for a single hospital. As a result, the newest programs are focusing on a pooled approach to share upfront and ongoing costs and achieve economies of scale.

These programs pool the value of the hospital's receivables, without combining their individual portfolios. Many hospitals may find pooled approaches, which retain their right to manage and bill their own accounts, the most advantageous.

Pooled approaches also give individual hospitals access to capital regardless of their own credit ratings. Traditional financing vehicles examine a hospital's creditworthiness, viewing accounts receivable financing as debt financing.

Rather than assessing the hospital's creditworthiness, pooling determines the payer's ability to pay and examines the mix of the hospital's portfolio and its collection experience.

Some accounts receivable programs are recourse in nature, meaning the hospital is contingently liable for accounts on which the purchaser cannot collect. This liability is disclosed on the hospital's financial statements.

For many hospitals, programs that include a "no-recourse" feature under which bad debt cannot be returned to them are more attractive.

The programs avoid recourse by establishing reserve funds that are determined by a participating hospital's payer mix, bad debt, and collection experience. In a non-recourse program, the credit enhancer and, ultimately, the commercial paper investor are potentially at risk if bad debts on the receivables are much higher than funds placed in the reserve accounts.

Pooled programs can pose risks to participating hospitals. While a hospital's individual portfolio is maintained separately, some assets may be commingled in reserve accounts. Hospitals looking at pooled programs should assess their risk for other participant's bad debts or collection problems. This risk, however, would never exceed a particular hospital's contribution to the program's reserves.

Hospitals not willing to assume risk should look for pooled programs that do not commingle assets or hold an individual institution responsible for another's bad debt or failure to collect on accounts due.

Collection control

Some receivables programs, particularly traditional ones, shift the burden of collecting accounts away from the hospital. In that case, the bank or financial institution literally takes control of a hospital's business office, from billing and collection to, conceivably, handling the pre-admission process and medical records.

Some of the newer programs, however, encourage the hospital to manage its own accounts, presumably because it is in the best position to service and collect those accounts. After receivables are sold into the program, hospitals continue to bill and collect their accounts receivable in much the same manner.

Hospitals participating in these types of programs should be aware that their patient acounting systems must be able to identify receivables sold into the program because hospitals are required to remit cash received on those accounts back to the program. These receivables generally are flagged by using separate financial classes.

Programs that allow hospitals to maintain control of billing and collecting their accounts have built-in safeguards against failure to do so adequately. Some permit consultants to enter the hospital to improve billing and collection procedures. In the case of hospital failure, a third party will take over the management of the hospital's billing and collection operations.

Well-structured financing programs give hospitals incentives for succeeding at collection. If a hospital's collection experience is better than expected, for example, it may receive a refund from surplus funds available in the reserves. If the hospital fails to perform up to expectations, however, its discount rate may be adjusted to reflect a greater number of charge-offs.

Another twist on receivables financing vehicles is the inclusion of all payers. Until recently, programs assumed only third-party insurance assignables: those certain to be collected. Now, programs have received Federal or state approval for collecting all receivables, including Medicare and Medicaid.

Commercial paper programs

In a typical commercial paper program, the hospital selects an accounts receivable portfolio to be sold, such as Medicare, Medicaid, or commercial insurance. Receivables are sold into the program at a discount, after subtracting contractual fees. The discount often pays for the cost of the program and reflects the collection experience of the individual hospital. The discount rate is determined on a hospital-specific basis and considers historical payer mix, bad debt experience, a factor for creating reserve funds, ongoing program costs, and the interest cost of the commercial paper.

To fund the purchase, commercial paper is issued, and the proceeds are sent to the hospital. The hospital receives the cash, minus financing costs, overnight. It continues to bill and collect on accounts sold, as well as sell additional receivables into the program.

Participating hospitals usually are required to prepare a summary report on receivables sold into the program and the status of collections against those receivables.

Hospitals have unrestricted use of the proceeds as long as the purposes are lawful, such as making up cash shortfalls in operations, replacing existing prime-plus borrowing, creating an interim or bridge financing mechanism, or funding capital equipment purchases.

Restrictions may be placed on the time frame during which hospitals remit cash collected on accounts sold to the financing entity. That cash is subsequently used to retire commercial paper, purchase new accounts receivable, fund hospital reserves, or make up shortfalls.

The method presumes that the hospital will continue to sell receivables into the program after the initial sale.

Maturing commercial paper may either be rolled over or retired, and new commercial paper can be issued as receivable balances rise.

Hospitals subsequently can subtract the amount of receivables sold, along with related provisions for bad debts and contractual allowances, from their books. Cash balances on the balance sheet increase by the net proceeds received.

Other risks to consider

Beyond those already spelled out, receivables financing programs present hazards in pioneering a new, wholly unproven, financing mechanism. Before making a commitment to any program, hospitals should insist on provisions enabling them to opt out if they choose to do so.

In addition, some receivables financing vehicles are tax exempt (those started before tax reform in 1986), but the majority are taxable. Taxable programs may be more costly in early stages. Ultimately, however, analysis may show them to be the most cost effective.

Hospitals seeking to participate in any financing program also may be required to meet minimum levels of participation in receivables to be financed.

Obviously hospitals are at risk if their receivables are determined to have been fraudulently sold into a program or if the receivables were misrepresented. In that event, the receivables will be declared not legally sold and will be returned to the hospital. Under those circumstances, funds paid to the hospital for those receivables would have to be returned.

Accounts receivable financing programs usually require periodic audits of individual program participants to review bad debt experience and ensure continued ability to bill and collect the accounts sold.

When shopping for the best receivables financing program, hospitals should look for those that do not prohibit or limit participation by an institution with any receivables for which periodic interim payments continue to be made.

Mel Spiegel is vice president, finance, at Premier Hospital Alliance, a voluntary association of 42 teaching hospitals and systems based in Westchester, Ill. He is an advanced member of HFMA's First Illinois Chapter.

Source: FindArticles.com

What is the number one way to prevent failure in business? Take a minute to really think about your answer. What comes to mind? Increasing patients or customers served? … Effective marketing? … Location, location, location? … Improving patient or customer care? … Being the best in your industry?

Although these are all essential aspects of business, the answer isn't any of the above. The number one way to prevent business failure is to properly manage your working capital.

To ensure that we're all on the same page, working capital is simply defined as the difference between your current assets and current liabilities. If this figure is positive, you have working capital available. This working capital may exist as inventory, accounts receivable, or cash on hand.

Working capital management is a critical management issue for growing businesses or medical practices. Take the example of a growing doctor's office: As expenses rise with patient-load increases, you accrue more outstanding cash, particularly before receiving reimbursement from the health insurance payors. At this point, your incoming cash does not nearly offset your costs going out. This may be manageable while you work with payments for past services; however, eventually the time lag may become a significant stress-point for your business.

By adopting a few working capital management strategies, you can make your assets work for you, without becoming beholden to banks.

Strategy #1: Get Paid Now

Let's take a look at the most obvious area: accounts receivable. What do your receivables do for you when they are not being paid? While your profit margins may look stellar if you have a lot of orders, you have essentially loaned all of your clients the amounts of your invoices-until they decide to pay you. Doctors, in particular, know the pain of this situation. Insurance payors are particularly adept at prolonging the time for payment; they realize that the longer they take to pay, the greater their profit margins.

Is this just another cost of doing business? Well, not necessarily. Eighty percent of small business owners, medical practitioners, and small hospitals are completely unaware of a resource Fortune 500 companies have used for decades: accounts receivable funding.

Banks often measure accounts receivable at as low as 50 percent of their overall value as collateral for a traditional loan. In accounts receivable funding, however, accounts receivable are calculated at full value. Plus, you accrue no debt for this financing, as you essentially sell your accounts receivable for payment against the full value.

Perhaps the idea of selling your revenue stream makes you nervous. But consider this: You usually receive 80 percent of the entire amount of the invoice within one or two days-at least 28 to 118 days sooner than usual. This cash injection allows you to make capital improvements for your business to generate more revenue, leverage the cash for discounts on your inventory, cover operating costs, or provide bonuses to your employees, for instance.

As your invoices are paid, your funder will repay the other 20 percent, minus the negotiated fee (average four to five percent of the invoiced amount). Don't get hung up on the 'cost' of the funding. With proper management of those funds, you will more than make up for fees by the investments made in your business. Your day-to-day business costs may stay the same, but the tremendous increase in incoming cash will enable you to rest easy.

Homework: Review your accounts receivable aging report. Note the average payment time from one of your best clients or insurance payors. Assuming payment of 80 percent of the invoice value in 48 hours, make a list of ways to use that money for your business:

- Cash discounts on inventory (estimate in dollar amounts).
- Buying or leasing new equipment (anticipated return in additional sales).
- New marketing campaign (anticipated additional revenue).

After you total the increased income generated by implementing this strategy, you can easily see the real benefit.

Strategy #2: Shorten Your Operating Cycle

Your operating cycle starts when you take cash out of your account to begin work for a client, and ends the day the client pays you. If you complete a project on Tuesday, for instance, but do not invoice until the following Friday-or even the end of the month-you lose days of income. Since you need the cash in your account-not just in your profit margins-you must minimize the time between service rendered and service invoiced.

Homework: Review how long you usually take to invoice a client. If that period of time exceeds a week, have your staff shorten that time. This adjustment will decrease the payment time by as much as 25 percent.

Strategy #3: Collect Past Due Accounts

Do you have a significant number of invoices out more than 60 days? If so, is your staff doing anything to shorten this timeframe? Call the clients whose invoices have been out 30 days and inquire about the invoice. Devoting a few hours a week to completing this task is money well spent if it ensures that even half of your outstanding invoices are paid a couple of weeks earlier.

Some delays in the healthcare industry, for example, are intentional. Prolonging the turnaround for payment controls costs. In these cases, you don't have any recourse. As any doctor can tell you, calling the insurance company to inquire about a claim can be a fruitless task.

Homework: Review your collections procedures and tighten up your ship, if needed. Assign one person to follow up on invoices outstanding for more than 30 days. Realize, though, that collections results fluctuate with your clients' priorities. Don't count on this as your only means of improving your cash flow.

Strategy #4: Turn Existing Equipment Into Cash

As we know, keeping current with technology improvements are constant and necessary to remain competitive. Leasing is a way to stay up-to-date without incurring the charges of frequently buying new equipment.

But have you ever considered leasing equipment that you already own? One option is selling your equipment to a leasing company, and leasing it back from them. This way, you generate some cash for your business. You will, of course, incur the lease payments.

Homework: Take stock of what you own. If you need capital, contact a few leasing companies and gauge their interest in purchasing equipment for you to lease back. Alternatively, a Certified Cash Flow Consultant will shop for you. Since they are independent consultants paid by the leasing companies, you will avoid any additional charges.

Strategy #5: When In Doubt, Outsource

Outsourcing certain support areas of your business, in which you are not an expert, is an excellent way to reduce payroll and insurance costs. You will spend a higher dollar per hour for importing experts, but the reduced costs (no health or workers' compensation insurance) usually compensate for the cost variance.

Be sure to hire these experts with as much diligence as you would any in-house employee. As you'll typically retain this type of assistance through specialty staffing houses, interview the individuals to be assigned. As integral members of your team, they must be as reliable as any employee on your payroll.

Homework: Contact area firms that provide the kind of staffing you need. Compare the cost of those contracts against the cost of keeping these staff on payroll. Be careful: Consultants can get expensive, so be sure to build cost controls (i.e., fixed fee for a weekly basis or hourly with a 'not to exceed' clause) into your contract. Be clear on their scope of work, to whom they report, and how you define satisfactory performance. In addition, you must directly approve any staff changes.

Strategy #6: Inventory When You Need It

Inventory that sits in the warehouse, not being sold for income, eats away at your available cash flow. It is an asset, sure, but it should not become a liability because it is not quickly converted to cash. Over-ordering of inventory gets many businesses into trouble.

Review your inventory forecast all the time, and be aggressive. Know your options in times when you have shortfalls. Fulfilling customer orders on time is a number one priority, so don't take unnecessary risks. If you simply hoard inventory to offset any chance of being caught off-guard, you lose the potential profits made by managing it more aggressively.

Homework: Review your current and projected inventory for the coming months. Do you need to make changes, or is it all under control? Make any necessary calls to your suppliers to negotiate better terms or better understand their supply controls.

Make Your Working Capital Work for You

Working capital management is a key element to business success and the number one way to prevent business failure. By implementing strategies such as accounts receivable funding, outsourcing, or inventory management, your business can optimize the return on assets it already possesses. Your company will then be well positioned to handle future growth or economic downturns.

Written by Ms. Anindya Kar, Certified Cash Flow Consultant, specializes in helping small businesses and medical providers with business financing. Her company, AKSF Funding Group (http://www.aksffunding.com), is based in Oakland, California, and works with clients nationwide. You may contact her for more information at 800.406.1399.

Source: EzineArticles.com

Life insurance agents who want to add life settlement advice to their toolbox for assisting their clients may have to make an effort to educate, themselves, at least in the near future.

Alan Buerger, the chief executive of Coventry First L.L.C., Fort Washington, Pa., expects to see several major new players respond to growing interest in the subject by introducing life settlement education courses in the next few years.

But for now, training in the viatical and life settlement fields is still in its infancy.

The Viatical and Life Settlement Association of America, Orlando, Fla., is not aware of any large, national, independent training firm that offers courses that focus on the life insurance policy resale market, according to Doug Head, the group's executive director.

"We've thought about doing it ourselves," Head says.

But the VLSAA is small, and it would prefer to work with an outside organization, he adds.

For now, agents must rely mainly on their own legwork, and courses and materials developed by the life settlement companies.

Coventry First, one of the biggest life settlement companies, has set up a nonprofit arm, the Coventry Center for Financial Professionals, that runs the country's the most extensive life settlement education program.

"We offer courses in every state that requires continuing education," says Buerger.

More than 20,000 life insurance agents, lawyers, accountants and financial planners have taken the courses, which range in length from 1 to 3 hours, in the past year.

Coventry First did not set up the program because it wanted to get into the continuing education business. "We did it because there wasn't any education in this area," Buerger says.

Other life settlement companies have come up with similar, do-it-yourself education strategies.

Rumson Capital Inc., Jenkintown, Pa., a life settlement company that offers free errors and omissions coverage for agents, has developed a product presentation seminar for agents that lasts about 2 hours.

The firm also offers one-on-one tutoring for agents who want to send it business.

Robert Meyer, Rumson's general counsel, says he is not sure what a longer life settlement seminar would cover.

In the life insurance policy resale market, "every transaction is unique," Meyer says.

Regulators and life settlement companies have been debating about what kind of license brokers ought to have to arrange life settlements.

In June, the NAIC adopted a final viatical and life settlement model regulation that leaves out any mention of separate life settlement broker licensing requirements.

The American Council of Life Insurers, Washington, and the National Association of Insurance and Financial Advisors, Falls Church, Va., continue to argue that life settlement brokers should have extra training and extra licenses.

"Good consumer protection dictates that someone who is urging a policyholder to viaticate his or her policy should understand the risks and benefits," the ACLI says in a statement about viatical and life settlements. "This knowledge can only be guaranteed with the separate education a broker would receive when applying for a license to sell viaticals."

But the ABA Real Property, Probate and Trust Journal helped increase interest in life settlements in late 2003, by publishing a paper by Neil Doherty, a Wharton risk management professor, and Hal Singer, an economist, about the value of the secondary life insurance market to policyholders.

In the paper, the researchers estimate life settlement firms paid $336 million in 2002 for 1,584 policies with a total of $93 million in surrender value. The deals produced $243 million in extra value for the policyholders, the researchers conclude.

Stewart Shannon, president of Assured Viatical Inc., Bethesda, Md., says every agent should mention resale options to older insureds or terminally ill insureds who are thinking about surrendering policies or letting policies lapse.

"Most people just don't understand that life insurance is an asset," Shannon says.

Even in the world of accountants, lawyers and high-end financial planners, "I think a lot of people are simply unfamiliar with life settlements, period," says Errold Moody Jr., a San Leandro, Calif., financial planner. Moody helped arrange a $667,000 life settlement for a 77-year-old client who had an unsuitable, $5 million life insurance policy that was costing her more than $200,000 per year.

The client and her daughter talked to experts around the United States for more than a year before Moody decided to try to help them market the policy to life settlement companies himself.

Moody says he thinks a life insurance agent has to be fairly sophisticated, and persistent, to package a policy for resale and deal with the life settlement companies.

When Moody mailed his first batch of 6 packages, "I didn't even get a reply," he recalls. Moody then sent more packages and eventually received 3 offers.

Coventry First and Rumson are not the only life settlement companies that have developed life settlement education programs.

Legacy Benefits Corp., New York, a life settlement provider, has posted an extensive marketing guide for agents on the Web, and 1st Life Financial L.L.C., Orlando, has released The Life Settlement Selling System, a package that includes a strategy for identifying life settlement prospects and sample marketing letters.

The American College, Bryn Mawr, Pa., offers several pages of information about viatical and life settlements in the course materials for its Chartered Life Underwriter program, according to Ed Graves, the college's chairman of life insurance.

Meyer, Rumson's general counsel, says he does not believe agents who simply refer clients to life settlement brokers really need any special background or credentials to discuss life settlement options, except in states that impose formal requirements on the referring agents.

What Rumson really wants to see when it works with a new agent is good character. The firm uses a questionnaire to review advisors' backgrounds, and it looks closely at any references to disciplinary problems.

Rumson itself reviews proposed transactions to see whether they seem to make sense for the insureds and to verify that the health information about the insureds seems to be accurate, Meyer says.

"We have the ultimate relationship with the insured," he says. "We're where the buck stops."

But, if a 75-year-old man offers his policy to Rumson, "we're not privy to his personal financial condition," Meyer says. "We're not giving him financial advice."

Although some kind of background in financial analysis might be helpful to an advisor, "every transaction is unique," and a financial advisor with more experience or a highly regarded credential might not get better results than a less experienced advisor with a different background, Meyer says.

Moody, who holds the Certified Financial Planner designation as well as a California life and disability license, says advisors who talk about life settlements probably could use a combination of a half-day life settlement seminar and years of experience with financial planning and analysis.

The seminar content might include general information about life settlement underwriting, an introduction to the art of predicting life expectancy, and advice about how to present a case to brokers, Moody says.

The content also might include advice about how to handle the emotions of clients who are deciding whether trusted advisors sold them the wrong products or deciding whether they can afford to leave an estate.

When clients sell policies without replacing the policies, "there's nothing there when they pass away," Moody says.

From National Underwriter Life & Health, Sept 20, 2004 v108 i35 p12(2) by Allison Bell.

Source: Viatical-Web.Org

Asset Based Loans

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Got collateral? Then you could get one of these loans.

Definition Or Explanation: Asset-based loans are usually from commercial finance companies (as opposed to banks) that are offered on a revolving basis and collateralized by a company's assets, specifically accounts receivable and inventory.

Appropriate For: Companies that may be rapidly growing, highly leveraged, in the midst of a turnaround or undercapitalized. In addition, asset-based financing works only for companies with proven accounts receivable, and a demonstrated track record of turning over their inventory several times each year.

Supply: Overall, the supply of asset-based financing is vast. A large number of commercial finance companies, as well as many banks, have massive pools of capital to lend to businesses. However, for smaller asset-based loans, those of $500,000 or less, the market is considerably smaller. Most asset-based lenders would prefer to make larger loans because the cost to monitor an asset-based loan is generally the same whether it is large or small.

Best Use: Financing rapid growth in the absence of sufficient equity capital to fund receivables and inventory. Asset-based loans can also be used to finance acquisitions.

Cost: More expensive than bank financing since asset-based lenders generally have higher expenses than bankers. Still, pricing is competitive among asset-based lenders. Small asset-based loans can be pricey, though, running 12 percent to 28 percent.

Ease Of Acquisition: Comparatively easy if your company has good financial statements, good reporting systems, inventory that is not exotic and, finally, customers who have a track record of paying their bills. If you don't have any of these, your path to an asset-based loan will be challenging. Funds Typically Available: $100,000 and greater.

From Where's the Money? Sure-Fire Financing Solutions for Your Small Business, by Art Beroff and Dwayne Moyers.

Source: Entrepreneur.com

Summary: Structured settlement buyers provide a valuable service to individuals that originally choose a structured settlement instead of a lump sum and now wish to alter the timing of some or all of their payments. The vast majority of structured settlement recipients are employed and perfectly capable of deciding what is best for them financially. They had the right to choose a lump sum at the time of settlement and should continue to have the right to choose how they get their money. HR 4314 eliminates citizens' rights to choose what to do with their money.

Myth: Structured settlements are used to provide for the long term care of seriously injured people.

Reality:
Over 85% of structured settlement recipients are gainfully employed or capable of working and do not suffer from a long term disability.

Myth: Structured settlements were intended to prevent people from quickly dissipating their awards.

Reality:
The vast majority of people had the choice of a lump sum or a structured settlement at the time of settlement and they chose a structured settlement.

Myth: Claimants who sell a portion of their settlement squander the money.

Reality:
34% Use the money to buy or renovate a home.
31% Pay off existing debts including tax liens and child support obligations.
14% Pay medical expenses.
11% Use the funds to open or expand a business.

Myth: Settlement Buyers use high pressure sales tactics and usurious interest rates.

Reality:
Settlement Buyers advertise and respond to in-bound phone calls. The claimant initiates the contact and can terminate the contact by simply saying they are not interested.
Settlement Buyers insist that individuals seek legal and financial counsel before they sign a contract. Most contracts for sale of settlement payments contain a 3 day right of recision and all terms and conditions are fully disclosed in writing.
The discount rates charged by Settlement Buyers are consistent and often lower than the rates of major credit card companies throughout the US and competition is driving discount rates down all the time.

Myth: IRC 130 was adopted to encourage people to accept long term pay-outs of personal injury claims and the Treasury Department has so found.

Reality:
IRC 130 was passed at the behest of the insurance industry because it provides them a huge tax benefit.
Treasury presented a more balanced view of the structured settlement industry, stating:
"It could be argued that imposing a tax on the acquisition of the payment stream would only worsen the risk that the injured person would receive an excessively discounted value..." and
"It could also be argued that it is not the function of the tax law to prevent injured persons or their legal representatives from transferring rights to payments. Arguably, consumer protection and similar regulation is more properly the role of the States than of the Federal Government."

Myth: Insurance companies wish to protect structured settlement claimants from themselves.

Reality:
This is a total fallacy. Claimants have complete latitude to accept a lump sum or structured settlement at the outset.
Structured settlements are incredibly profitable for the insurance companies and the brokers that set them up (the NSSTA and its members).
Take it from them - The Travelers Structured Settlements Manual says:
"The primary objective in expanding the use of structured settlement is to maximize their value as a tool to reduce both claim loss and expense costs."
"Essentially, when a claimant has a reduced life expectancy and a substandard age rating has been obtained, the more life contingent benefits provided in the structure offer, the higher the savings on the claim."
The insurance industry does not like the fact that Settlement Buyers are educating the public about the "time value of money" (the real value of the settlement they accepted).

Myth: H.R. 4314's exception for court approved hardships addresses the needs of those who really need access to their money.

Reality:
There is no court procedure for obtaining such an order in 47 of the 50 states.
To the extent that a petition can be brought before a court, the bills standard of "extraordinary, unanticipated and imminent" will lead to a disparity of results amongst and between residents of the several states.

Myth: Settlement Buyers oppose regulation.

Reality:
The Settlement Purchase industry embraces reasonable regulation and recently sought to introduce such legislation in Illinois, which was opposed by the NSSTA and the insurance industry. Settlement Buyers have and will support reasonable regulation at the federal and state levels.

While most small and medium sizes law firms want to grow and prosper, few have the necessary working capital to handle increased case loads or extended settlement payment. Factoring, which is the purchase and sale of accounts receivable (in this case, legal fees) at a discount at or near the time of creation (settlement), can help solve this all too familiar cash flow problem.

Financial transactions with attorneys are shaped by ethics issues. The intrinsic problem is that the non-lawyer entity has an incentive to attempt to "maximize its earnings to the detriment of the representation of clients." However, once a case has settled, these issues are not in play any longer and the ethics issues go away. Legal fees on settled cases are just like any other account receivable and can be sold, assigned, factored or otherwise financed.

Specialty finance companies like CapTran (www.captran.com) will purchase legal fees on settled cases. Most companies will deal in all fifty states.

• Minimum Transactions amounts are as low as $5,000

• Individual fees can be aggregated to meet minimum

• Maximum Transactions amounts are generally in the millions as most factoring companies are very well capitalized

• A portion of a fee may be sold

• Generally, there are no application fees

• The fees must have no known motions or actions challenging the settlement

How it works

Once a case has settled and all documents have been properly executed by both plaintiff and defendant, the fee receivable is purchased for a small discount, usually between 2% and 12% depending on the payor and amount. The main difference in rates is the factor’s estimation of the time it will take to collect the fee.

Step 1 – Master Fee Purchase Agreement

A Master Fee Purchase Agreement is executed specifying the terms of the under which fees will be purchased, including minimum and maximum amounts, advance rates, fees and rebates. Before you begin factoring, please fax us the following documents:

• If your firm is a Proprietorship:

o Fictitious Business Name Statement or other document you filed with your local governmental agency allowing you to conduct business under your company name;

• If your firm is a Professional Corporation or Limited Liability Company (LLC):

o the document stamped by your state governmental agency confirming your company's registration and allowing you to conduct business under your company name. This is often known as a Charter or Articles;

• A copy of the declarations page of your malpractice insurance policy.

Step 2 – Submit Fee Purchase

Submission of fee for purchase using factor’s submission process/forms. (CapTran has an online e-from to make the process of submitting fees for purchase as easy as possible.) The documentation is simple and closing is usually within 24-48 hours.

Documentation:

• Copy of client fee agreement

• Copy of settlement or judgment

• Must be signed by defendant

• must be signed by insurance company or other payor

• Letter of instruction from attorney to payor directing payment to factor’s bank or lockbox.

Step 3 – Acceptance

Purchase of fees is subject to the factor’s acceptance,(acceptance occurs when you receive your advance), at their sole and absolute discretion at a the discount from face value agreed to in the Master Fee Purchase Agreement, which is usually wire transferred directly into your checking account. The discount will include the factor’s fee as well as any margin or “haircut” form the face value, which the factor has required. Usually, the factoring of legal fees requires no haircut if the payor is of unquestioned credit worthiness.

The assignment and letter of instructions from you is sent to the payor of the fee (usually an insurance company).

Step 4 – Payment

The payor sends their checks to the factor, which amounts are credited to your account, as received.

If the payor pays in a timely fashion (less than 90 days), you will also receive a Rebate when enough money has been collected to close any particular transaction. The Rebate is calculated by a predetermined formula that adjusts the original discount in Step 3. Here's an example assuming a 12.5% factoring fee and a rebate of 4.8% for payment within 90 days:

Amount of Fee $10,000

Less Advance Disocunt (12.5%) $1,250

Net Advanced to Attorney $8,750

Rebate if payment within 90 days (4.8%) $480

Net retained by attorney if paid within 90 days = $9,230

Net retained by attorney if paid after 90 days = $8,750

Every factor has its own rules, preferences and idiosyncrasies. However, the welcome mat in clearly out for accomplished small to medium sized law firms.

Some firms also offer working capital loans which may, for certain firms, compliment factoring very nicely.

Wayne C Walker, President of Capital Transaction Group Inc www.captran.com

Source: EzineArticles.com

It has occurred to you that you're sending a check to a life insurance company every month and you really don't need the policy. Your kids are grown and doing quite nicely, thank you, and your spouse is well provided for.

You can simply let the policy lapse. You no longer pay the premiums and, obviously, no longer are eligible for the death benefits. The downside: The money you've already spent on premiums is gone.

Or, perhaps you have a serious medical condition and need money now to cover medical or living expenses.

In either case, one option is to sell the policy to a third party, known as a viatical or life settlement firm. You then become the "viator" and receive a portion of the face value of the policy. The exact amount varies with your age, life expectancy and the value of the policy. The viatical firm owns the policy and pays the premiums. When you die, the firm receives the death benefits.

Typically, the term "viatical" is used when the individual selling the policy is terminally ill and expected to live no more than a year or two. The term "life settlements" is used when an older individual (usually 70+) who may have some health problems but still is not expected to die within the next few years, sells a policy that he or she no longer needs. These are important distinctions, as the tax implications and regulations can vary between the two.

While viaticals and life settlements aren't appropriate solutions for everyone, they can be of benefit to some individuals. However, before selling a life insurance policy, it makes sense to do some homework. That's because today's viatical industry comes with a checkered past.

Troubled life of viaticals
The industry emerged during the AIDS crisis of the 1980s, says David Sommer, associate professor of risk management and insurance at the University of Georgia's Terry College of Business, Athens.

"Suddenly, there was a large group of individuals with substantial life insurance, and they basically had a death sentence."

Many needed money to cover medical treatments or living expenses while they still were alive. In addition, many didn't have dependents who would need their policies' death benefits. It made sense to sell their policies and use the money to pay expenses.

Such transactions can be a humane option for those who need it. However, some unscrupulous people saw it as an easy way to make money.

One type of scam involves what's known as a "wet paper" transaction. Here, one person tries to convince another to purchase a life insurance policy, which then would immediately be sold to a viatical company. The term "wet paper" refers to the fact that the ink on the policy wouldn't have time to dry before it was sold.

These schemes can lead to another scam, known as "clean sheeting." Here, an individual purchases a life insurance policy without disclosing his or her true medical history. If the individual is in poorer health than the application indicates, the insurance company isn't able to make an informed decision about insuring him or her.

Clearly, transactions in which one party deceives another are unethical, and most likely, criminal. Today, most viatical firms won't purchase policies that are less than two years old. And, individuals who misrepresent their health when applying for life insurance can be prosecuted.

Contract for murder?
Even when the transaction is on the up-and-up, some industry observers express concern over what they view as an industry in which one party profits from the other's death.

"Our greatest concern is that viaticals create an incentive for murder," says Joseph Belth, a retired professor from Indiana University at Bloomington, in his book, "Viatical Transactions: The Frightening Secondary Market for Life Insurance Policies."

Doug Head, director of the Viatical and Life Settlement Association, a trade group in Orlando, Fla., notes that such speculation is just that -- speculation.

"So far as anyone knows, there's never been a murder of a viator (by the viatical firm)," he says. "Were it to occur, there would be a pretty immediate trail to the person doing the murdering."

In contrast, says Head, cases in which one person kills another to get the life insurance benefits regularly occur.

Cleaning up the industry
However, Head and others agree that some level of regulation is needed. The executive committee of the National Association of Insurance Commissioners recently adopted the latest version of the model viatical settlements regulation, says Lester Dunlap, Louisiana's assistant commissioners of insurance and chair of the NAIC's working group on viaticals.

These are regulations that the group publishes. Individual state insurance commissioners can then adopt them, modify them or come up with their own regulations.

The American Council of Life Insurers opposed the model regulations recently adopted by the NAIC, says Jack Dolan, spokesperson for the Washington, D.C.-based professional organization. The model allows individuals with one year of experience in the insurance industry to facilitate transactions. "We believe additional licensing and testing should be required," says Dolan. "This is an area of specialty and should require advanced testing."

Currently, approximately 35 state governments require viatical companies to be licensed before doing business in the state. Many also have laws regulating viatical transactions, says Dunlap. One note: In some states, the laws cover only viatical transactions and don't apply to life settlements.

If you're thinking about selling your life insurance policy, you'll want to do your homework.

Signing your life insurance away
First, determine whether you still need it, says Dunlap. Will the policy's beneficiaries still need the benefits?

Once you're confident that you don't need the policy's benefits, examine all your options. Some life insurance policies now offer accelerated death benefits, says David Sommer, associate professor of risk management and insurance at the University of Georgia. These typically let a policyholder receive some portion of the death benefits while alive, as long as he or she has a life expectancy of less than one year, says Sommer. When the policyholder dies, the remaining proceeds goes to his or her beneficiaries.

If it becomes clear that selling your policy is the best option, the next step is to thoroughly investigate viatical firms. At a minimum, the firm should be licensed to do business in your state. Head also recommends that you work only with firms who belong to the Viatical and Life Settlement Association of America, as they've pledged to uphold a code of ethics.

Belth disagrees, saying that this doesn't offer enough protection. The code and enforcement of it are "empty," he argues.

You'll also want to review, with a legal professional, the regulations that govern the industry in your state.

What happens if you enter into a viatical transaction that goes awry? You can check with your state's department of insurance. The department can let the firm know that if they don't play by the rules, their license might be revoked. You also can check with the consumer division of your state's attorney general's office.

However, if your state doesn't license viatical firms, there may be little anyone can do. You can file a lawsuit, but if the firm itself doesn't have money, a lawsuit is unlikely to help you win any. That's why due diligence before you sign on the dotted line is critical.

As the viatical industry matures, it's likely that it will end up playing a niche role within the financial services industry. For some individuals, they offer tremendous benefit.

"They can provide a valuable service to those who are terminally ill and have life insurance but no need for the death benefit," says Sommer.

Others will find that it makes more sense for them to pursue other options.

Source: Kim Kroll at Bankrate.com

What is factoring?

Accounts receivable financing, also known as factoring, is a powerful financial tool that has fueled the growth and success of a number of companies. Factoring enables companies to capitalize on their unpaid receivables by selling them to a factoring company for immediate payment. With factoring, companies immediately get paid for their invoiced work from the factoring finance company, while the factoring company waits to be paid by the customers. Factoring strengthens a business’ cash position by shortening the time to get invoices paid to 48 hours and providing the needed funds to meet current expenses and target new opportunities.

Factoring Benefits

As opposed to loans and lines of credit that require that the client have tangible assets and strong financials, factoring relies more heavily on the financial strength of the clients’ customer. This is a critical feature, since many new and small businesses do not meet the financial criteria of traditional lending institutions. However, many small businesses have a roster of financially strong customers that can be leveraged. Factoring empowers businesses to capitalize on their customer list, and provides them with a tool to transform outstanding receivables into immediate cash, without generating debt. Since Factoring is not a loan, it is an ideal financial product for the following:

- New and emerging businesses including small and home businesses, consultants and solo-preneurs.

- Businesses with financially strong customers.

- Businesses that are preparing to grow significantly.

- Business with intangible assets (e.g. consultants)

- Businesses that do not want to take a loan

An additional benefit of factoring is that the factor usually assumes part of the clients’ credit risk for the customer. This means that if the customer becomes financially insolvent due to bankruptcy and does not pay the invoice, the factor will assume the loss. This is a critical service for small companies who may not be able to afford the bankruptcy of a customer.

Costs

The costs of a factoring transaction – also known as the discount - vary based on a number of variables such as the financial strength of the customer and the amount being factored. Generally, the discount is a percentage of the invoice’s face value that increases with time until the invoice gets paid. Small businesses, those that have between $20,000 and $300,000 in yearly revenues, can expect to pay a discount rate of about 2% for every ten (10) days that the invoice remains unpaid. Businesses with factorable revenues in excess of $300,000 can expect lower discount rates.

Factoring at Work: Business Services and Products, Inc. Case Study

Business Services and Products, Inc. (BSP, Inc.) is a small fictional company, which provides business consulting and equipment to local companies. It has $300,000 of annual revenues and during the past year BSP Inc. has enjoyed significant sales growth. Although most business owners would be very happy to manage such a company, Jane Sullivan, BSP Inc’s president, is very worried about her company’s financial position.

Most of BSP Inc.’s customers are large companies with a good reputation for always paying their invoices. However they always take between 30 to 45 days to pay them. BSP Inc., however, needs to pay their employees every two weeks and their vendors every four weeks. This discrepancy between the time that customers pay their bills and the time BSP Inc. needs to pay their employees and vendors has created cash flow problems in the past.

Furthermore, these cash flow problems have already caused Jane to delay payroll twice this year and have placed her trade (vendor) credit in jeopardy multiple times. This has also caused her to pass on a number of significant business opportunities because she was unsure of the company’s financial ability to hire and pay for additional staffers. Unfortunately, BSP Inc. did not have a large enough financial cushion in the bank to afford paying employees while waiting for 45 days new clients to pay their invoices.

The following table provides an overview of BSP, Inc’s current financial position.

Business Services and Products, Inc (without financing)

Yearly sales:................................$300,000
Lost new sales opportunities:..........Unknown
Total Sales:.................................$300,000

Variable Costs(60% of Sales):.........$180,000
Fixed Costs(Rent, phones, etc):........$20,000
Total Costs:.................................$200,000

Profit (Sales – Costs):....................$100,000

Although the company’s prospects appear great, Jane may have to stall her company’s growth until she builds a large enough cash cushion at the bank to finance her company’s growth.

After careful consideration, Jane decided that a factoring line of working capital could help strengthen her company’s financial position. Furthermore, factoring her invoices would enable BSP Inc. to take on new customers and continue growing, knowing that she could capitalize on her slow paying customers. BSP Inc.’s financing agreement will provide the company with an advance of 70% of her invoiced services. This means that the company can get 70% of the face value of the factored invoices within 24 to 48 hours of submitting them to the factor. The remaining 30% of the funds, less the factoring fees, will be quickly rebated as soon as the customer pays their invoice.

This line of working capital strengthened the company’s financial position and bank account, enabling Jane to pay for new employees to service new contracts. Jane also decided to use the extra capital to pay her vendors early, obtaining quick payment discounts and helping to reduce the cost of factoring.

BSP Inc. customers pay their invoices within 30 days of receipt. The discount (factoring fee) for these invoices is 6%. Every time an invoice is paid, the factor rebates BSP Inc. the remaining 30% that was not advanced less the factoring fee. This means that once the transaction is completed, the factor rebates 24% (30% - 6%) to BSP Inc.

Thanks to the factoring line of working capital, Jane was also to secure an additional $120,000 worth of business, bringing her annual revenues to $420,000. The following table shows BSP Inc.’s financial position a year after using factoring.

Business Services and Products (with factoring)

Existing Sales:...................................$300,000
New Sales:.......................................$120,000 (factored)
Total Sales:......................................$420,000

Variable Costs (60% of Sales):.............$252,000
Fixed Costs (Rent, phones, etc.):...........$20,000
Cost of Factoring (6% of $120,000):.........$7,200
Total Costs:......................................$279,200

Net Profit (Sales – Costs):...................$140,800

As can be seen from the above table, factoring helped BSP Inc. increase profits substantially from $100,000 to $140,800 - a 40% increase. It placed BSP Inc. on a more stable financial footing, priming it for growth. Furthermore, the cost impact of factoring on the bottom line was minimal, as it was easily absorbed by the additional business, showing that factoring was paid for directly by the growth.

Written by Marco Terry, president of Commercial Capital LLC, a leading commercial finance company that specializes in providing working capital through factoring to small businesses. For more information or a free consultation, please visit our web site at ccapital.net.

Source: EzineArticles.com

By Don Konipol

Direct Real Estate investing involves ownership of real property. If the property is income producing, such as single family homes, apartments, office buildings, warehouses or retail centers, the investor must be involved in the day to day management of his property. If the property management is out sourced the investor gives up a significant portion of his return to the management company; further the property manager must still be managed and major decisions affecting the property such as repairs, capital improvements, expenditures, market positioning, timing of sales, rent rates etc., must still be made by the investor. If the investor is a rehabber or flipper, Real Estate becomes more of a business rather than an investment. Many successful Real Estate "investors" are actually Real Estate "operators" in the Real Estate business.

Perhaps you, like I, want to capture the high yields and potential capital appreciation of investing in Real Estate, but don't want the management hassles and time commitment involved in direct property ownership. Maybe you have a full time job or business, or perhaps your retired looking for greater income than bank CDs and greater security than a volatile stock market. Or perhaps like me, having owned income producing property for many years, you're tired of "tenants and toilets". If so, consider indirect Real Estate investment, i.e., investing in Real Estate securities. Types of Real Estate Securities

REITs:

Real Estate Investment Trusts are companies that own, manage and operate income producing Real Estate. They are organized so that the income produced is taxed only once, at the investor level. By law, REITs must pay at least 90% of their net income as dividends to their shareholders. Hence REITs are high yield vehicles that also offer a chance for capital appreciation. There are currently about 150 publicly traded REITs whose shares are listed on the NYSE, ASE or NASDAQ. REITS specialize by property type (apartments, office buildings, malls, warehouses, hotels, etc.) and by region. Investors can expect dividend yields in the 5-8 % range, ownership in high quality real property, professional management, and a decent chance for long term capital appreciation.

Real Estate Mutual Funds:

There are over 100 Real Estate Mutual Funds. Most invest in a select portfolio of REITs. Others invest in both REITs and other publicly traded companies involved in Real Estate ownership and Real Estate development. Real estate mutual funds offer diversification, professional management and high dividend yields. Unfortunately, the investor ends up paying two levels of management fees and expenses; one set of fees to the REIT management and an additional management fee of 1-2% to the manager of the mutual fund.

Real Estate Limited Partnerships:

Limited Partnerships are a way to invest in Real Estate, without incurring a liability beyond the amount of your investment. However, an investor is still able to enjoy the benefits of appreciation and tax deductions for the total value of the property. LPs can be used by landlords and developers to buy, build or rehabilitate rental housing projects using other peoples money. Because of the high degree of risk involved, investors in Real Estate Limited Partnerships expect to earn 20% + annually on their invested capital.

Real Estate Limited Partnerships allow centralization of management, through the general partner. They allow sponsors/developers to maintain control of their projects while raising new equity. The terms of the partnership agreement, governing the on-going relationship, are set jointly by the general and limited partner(s). Once the partnership is established, the general partner makes all day to day operating decisions. Limited partner(s) may only take drastic action if the general partner defaults on the terms of the partnership agreement or is grossly negligent, events that can lead to removal of the general partner. The LPs come in all shapes and sizes, some are public funds with thousands of limited partners, others are private funds with as few as 3 or 4 friends investing $25,000 each.

High Yield Private Mortgage Notes:

These notes are fully collaterized by income producing Real Estate, and are used by the professional Real Estate investor for the acquisition, rehabilitation or equity cash out of residential and commercial properties. Investors have the opportunity to obtain above market returns of 12 - 14% in first trust deed positions and 15 - 18% returns in second trust deed positions. These loans are usually for duration of one year and provide a monthly income with interest only payments.

These loans never exceed 65% of the current appraised property value. Private Mortgage Brokers originate these loans, and are able to obtain these high yields because of unique advantages they offer to the professional Real Estate investor. They are able to close most loans in 2 weeks or less whereas institutional lenders require 6 weeks or more to close and fund a commercial mortgage loan. Further these loans are asset based; the real property itself is the basis of the lending decision. Hence, if the property is producing sufficient income to pay the note interest and the value of the property will fully secure the note and provide sufficient equity, then the borrower's credit is not an issue. Instead of concentrating on minute detail of the borrowers credit history as institutional lenders do, private mortgage note holders concentrate their due diligence efforts on the Real Estate securing the loan. They provide a borrower with the ability to borrow on underwriting criteria not available through institutional lenders, hence investors in private mortgage notes are able to receive much higher yields with no increased risk.

For additional information on the above, check out these websites;

REITS

Real Estate Limited Partnerships

High Yield Private Mortgage Notes

Don H Konipol is General Partner of Managed Mortgage Investment Fund LP, a private investment fund that provides short term, high interest, asset based financing for commercial and residential real estate investments. These loans are used when conventional financing is inappropriate or unavailable. Don can be reached at dkonipol@yahoo.com or 832-577-8838.

Source: American Investor in Real Estate Online

By Don McNay

Some observers in the structured settlement industry refer to the business as a "mature." Nothing could be further from the truth. The structured settlement industry is one of growth.

For the uninitiated, a structured settlement is a way of settling a personal injury lawsuit for a stream of payments other than a lump sum payment. When set up properly those payments are tax-free to the injury victim.

A structured settlement is a tremendous financial planning tool that can be set up to meet a person's regular income needs and allow for additional payments at a future date.

A variety of factors are fueling the growth and development of the structured settlement marketplace, including new regulations, more high-quality insurers offering their annuities and introduction of the producer group concept into the structured market.

Regulation

In the past few years, factoring companies-companies that buy structured settlement payments-have developed a large market nationwide, but have been totally unregulated.

As a result, trial lawyers have been hesitant to place clients in structured settlements for fear that a factoring company might be buying those payments at a steep discount. New regulation of the factoring market will allow trial attorneys to start suggesting structured settlements to their clients on a more frequent basis.

A front-page story in the Louisville Courier Journal detailed the plight of one of Kentucky State Representative Harry Moberly's constituents who unwittingly sold her structured settlement payments to a factoring company. Mr. Moberly was inspired to propose stringent consumer disclosure and court approval before payments could be sold in Kentucky. His bill passed the Kentucky legislature unanimously and will become law July 1, 1998.

Kentucky's bill to regulate factoring companies is being copied by other states and may become the model nationwide.

High Quality Annuity Issuers

The structured settlement was on a high-growth pattern in the late 1980s before the insolvency of Executive Life Insurance Company. Executive Life was a big player in the structured settlement marketplace and its failure caused many property-casualty insurers and plaintiff attorneys to be hesitant to promote structured settlements.

In the past few years, a variety of companies have entered the structured settlement marketplace with annuities, including: New York Life Insurance Company, New York; Berkshire Hathaway Life Insurance Company, Omaha, Neb.; Commercial Union Life Insurance Company, Boston, Mass.; Aegon USA, Cedar Rapids, Iowa; and GE Capital Life Assurance, Purchase, N.Y. Also, insurers such as The Hartford and Travelers, both in Hartford, Conn., have allowed outside brokers to market their annuities, which were previously used only to settle in-house claims.

This "flight to quality" in structured settlement annuity issuers has resulted in strengthened confidence by all parties involved in a settlement as to the structured settlement's ability to make payments on a timely basis. This increased confidence has resulted in more interest in structured settlements.

New Markets

Until recently, structured settlements had been confined to physical injury accidents, such as automobile accidents and medical malpractice. But, in 1997, Congress passed legislation that opened up structured settlements for settling workers' compensation claims.

In has been said that the workers' compensation market might be bigger than the $3 billion to $5 billion that goes into structured settlements from injury accidents.

There have also been some innovations in using structured settlements in employment litigation and settling environmental claims. Both of these areas have huge potential for growth.

Producer Groups

The structured settlement industry is basically set up in a producer group model and has been since its inception. It can be very difficult for an agent to break into the structured settlement industry, as most life carriers will not take on a new structured settlement broker without a proven track record of production and commitment to produce a certain premium amount each year. However, a few producer groups are occasionally willing to take on an inexperienced agent: among these are the Delta Group of Settlement Companies, San Capistrano, Calif., and its affiliate, The James Street Group in Austin, Tex., and Summit Settlement Services, Des Moines, Iowa. In addition, several structured settlement brokers will work with sub-brokers who can show business potential.

Don McNay, CLU, ChFC, and Chartered Structured Settlement Consultant, is president of the McNay Settlement Group in Richmond, Ky. Mr. McNay also is a board member of The National Structured Settlement Trade Association.

Source: NationalUnderwriter.com

Litigation Funding Options

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How Is Litigation Financed?
Litigation is an expensive process. For most people with personal injury claims, a lawyer is hired on a contingent fee basis, meaning that there is no attorney fee unless the case is successful, and any attorney fee is a percentage of the money recovered. The law firm advances money for the cost of litigation, until such time as the case is resolved. However, for plaintiffs who cannot find a lawyer who will work on a contingent fee, or who have significant personal expenses during the pendency of their case, additional funding may be required.

What About Personal Expenses?
For ethical reasons, lawyers cannot lend money to their clients. For clients who require funds during the litigation process, whether to meet their personal expenses, to pay their attorneys, or to pay for medical care and treatment, it is necessary to find other funding options. Among the available options:

Pre-Settlement Lawsuit Loans
A significant number of litigation funding companies have arisen, which offer funding packages commonly described as a "lawsuit loan". Ideally, this form of litigation funding will provide you with sufficient money to get to the conclusion of your case, when you finally receive your share of the ultimate verdict or settlement. These advances are typically offered as "non-recourse" financing, meaning that you will never have to repay more than your share of the recovery, and if your case is dismissed or a jury finds for the defendant you don't have to repay anything. However, the fees associated with litigation funding of this type are high, so you should take great care in selecting a litigation funding company, and should both consult your own lawyer and ask appropriate questions before signing a contract with any company.

Personal Loans
If the injured person has a good credit history, it may be possible to obtain a personal loan at a reasonable rate of interest. A personal loan is an unsecured loan or line of credit, offered on account of the applicant's good credit history and possibly their relationship with the lending institution. However, you should take care that the cost of any such loan does not exceed that available through other unsecured credit options, such as advances on a credit card or a lawsuit loan. (Despite the high costs and interest rates associated with credit card debt or lawsuit loans, sometimes that debt remains comparable or cheaper than an unsecured personal loan, particularly if you find yourself unable to make payments.)

Other Funding Options
Sometimes the best source of funds during a financial crisis is your family - your family may surprise you with its generosity during your times of need. It is wise, even with family, to reduce any loan agreements to writing. You can reassure your family with the cooperation of your lawyer, by promising that they will be repaid out of your share of any lawsuit proceeds. Some people will also wish to consider a home equity loan, or similar financing based upon a significant asset which can serve as collateral.

Get The Help You Need
When considering your need for litigation funding, you should consider whether you are getting all the benefits to which you are entitled. For example, if you were injured at work you may be entitled to workers' compensation benefits. If you are disabled as a result of your injury you may wish to apply for Social Security disability benefits. You may also be able to avail yourself of subsidized health care coverage plans or Medicaid. Speak with your lawyer about your options - because you will be best off if you can resolve your financial situation without going into debt.

Written by Aaron Larson.

Source: ExpertLaw.com

One of the fastest growing segments in the financial arena today is the "Cash Flow Industry". It deals exclusively in the brokering of cash streams created by debt instruments that can be sold in the market place. The industry has defined fifty seven different types of financial instruments that create cash streams that flow from a seller to a buyer on a periodic basis (usually monthly). They can be single instruments or a portfolio of instruments.

The most widely known instruments are mortgage notes. These are promissory notes that are collateralized by mortgages on real estate. The monthly payments create the payment stream. Almost all mortgage notes made to banks or other institutions are sold to a third party, at least once, as most home owners can attest.

In the late 1980's, it was determined that a sizeable percentage of mortgage notes were held by individual sellers of real estate. These were either first or second mortgages and represented billions of dollars in debt instruments being created annually by individuals. It should be noted that real estate is an excellent collateral for promissory notes, primarily, because it does not move. It was also determined that there were buyers (institutional and private) interested in purchasing these privately held notes, either as individual notes or in portfolio. These instruments also included trust deeds and land sales contracts.

The "cash flow industry" was born when individuals with a business background in real estate, mortgage origination or insurance brokerage realized that a fee could be earned by bringing together a buyer and a seller of such notes. Using the theory of "The Time Value Of Money", buyers will buy the notes for an amount somewhat lower than the principal balance remaining on the note(s). The difference between the remaining principal balance and the offered amount is known as the "yield" to the buyer. It is also referred to as the discount to the seller.

The purpose of this presentation is to provide current information regarding the sale of "Business Notes". They are similar to mortgage notes in that they represent that portion of the selling price of a "business" t hat is not paid for in cash. These notes, known as "Seller Carryback Notes", are made by the Buyer of a business and held by the Seller of the business. They are almost always collateralized by a combination of inventory, equipment, (sometimes, accounts receivable) and good will, not real estate. Although, these assets are valuable to the continued health of the business, they represent poor collateral for a promissory note.

Prior to the end of 1994, business carry back notes had no marketable value. The holder of the note was totally at risk for the percentage of the selling price that the carryback note represented. A very scary scenario. And it still exists today for those notes that do not conform to the underwriting criteria shown below.

However, in the past few years, a market has emerged for the purchase of seller carryback business notes. It is restrictive yet flexible. It is relatively unknown, except to a small group of knowledgeable brokers who deal in this area of cash flow every day. It is estimated that 75% to 80% of all small and medium size businesses sold each year involve seller carryback notes. This is due to the lack of bank or government backed financing available for a variety of business sectors. Also, buyers want to retain some of their cash for working capital or as a cushion. They also want the seller to be exposed financially in the event that the sale of the business was either overpriced or misrepresented. Conversely, sellers prefer to sell for cash in order to pay off existing debt, buy another business or make other investments.

Almost all notes above $20,000.00 are saleable if they meet certain criteria. Anyone who has sold a business or is planning to sell a business and has a carryback note or is planning to accept a carryback note should heed the following criteria for a saleable business note.

A) Underwriting Criteria for a Seller - Carryback Business Note: At least 1/3 cash down payment and proof of same.
B) A minimum of four (4) months seasoning (some notes can be purchased either sooner or later depending on the down payment, term, business sector, etc.).
C) Good payer credit before and after the purchase of the business.
D) Prior experience of the payer/buyer.
E) Term of the note should not exceed seven years and be fully amortized.
F) Interest rate should not be excessively low or high.
G) Lease on the premises including options for renewal should exceed the term of the note.
H) Acceptable payer business bank account balances.
I) Personal guarantee of payer.
J) Credit check for government and private liens against seller.
K) Review of seller's bank statements subsequent to the sale of business showing deposits of payer's loan payments to the seller.

If the above criteria is not adhered to, the business carryback note is worthless in the market.

Yield Requirements (Buy Rates) of the note buyers have come down from 30% and above to less than 25% currently (some lower. Each note is evaluated on a case to case basis. Existing and planned future notes can be appraised for present or potential value usually within 48 hours of receiving certain information in accordance with the yield requirements above. Partial purchases are also available for larger notes.

Jim Bashaw has been a Florida licensed Mortgage Broker for seven years and has specialized in the brokering of notes for the past four years. He is currently Manager of Mortgage and Business Note Brokering at The Signature Funding Group, 101 N. Woodland Blvd, Deland, FL 32720. Call 800-266-6039.

Source: ConnectionManager

Leasing offers numerous advantages over other financing methods:

  • Tax treatment. The IRS does not consider an operating lease to be a purchase, but rather a tax-deductible overhead expense. Therefore, you can deduct the lease payments from your corporate income.

  • Balance sheet management. Because an operating lease is not considered a long-term debt or liability, it does not appear as debt on your financial statement, thus making you more attractive to traditional lenders when you need them.

  • 100 percent financing. With leasing, there is very little money down - perhaps only the first and last month's payment are due at the time of the lease. Since a lease does not require a down payment, it is equivalent to 100 percent financing. That means that you will have more money to invest in revenue-generating activities.

  • Immediate write-off of the dollars spent. Leasing payments are treated as expenses on a company's balance sheet, therefore, equipment does not have to be depreciated over five to seven years.

  • Flexibility. As your business grows and your needs change, you can add or upgrade at any point during the lease term through add-on or master leases. If you anticipate growth, be sure to negotiate that option when you structure your lease program. You also have the option to include installation, maintenance and other services, if needed.

  • Customized solutions. A variety of leasing products is available, allowing you to tailor a program to fit your month-to-month or year-to-year cash flow needs. You are able to customize a program to address your needs and requirements - cash flow, budget, transaction structure, cyclical fluctuations, etc. Some leases allow you, for example, to miss one or more payment without a penalty, an important feature for seasonal businesses.

  • Asset management. A lease provides the use of equipment for specific periods of time at fixed payments. The lessor assumes and manages the risk of equipment ownership. At the end of the lease, the lessor is responsible for the disposition of the asset.

  • Upgraded technology. If the nature of your industry demands that you have the latest technology, a short-term operating lease can help you get the equipment and keep your cash. Lease equipment that you expect to depreciate quickly. Your risk of getting caught with obsolete equipment is lower because you can upgrade or add equipment to meet your ever-changing needs.

  • Speed. Leasing can allow you to respond quickly to new opportunities with minimal documentation and red tape. Many leasing companies can approve your application within one or two days and you can have your equipment very quickly.

  • Improved cash forecasting. By leasing equipment you know the amount and number of lease payments over the life of the leasing period, so you can accurately forecast cash requirements for your equipment.

  • Flexible end of term options. There are several options for disposing of equipment after the lease term ends including returning the equipment, renewing the lease or purchasing the equipment.
    Tax benefits. Lessors often pass the tax benefits of ownership on to the lessee in the form of lower monthly payments.

  • Improved earnings. Operating lease accounting provides a lower cost than a capital lease in the early years of a lease.

  • Source: ChooseLeasing.org

    Having written numerous articles for various trade publications regarding the business of voluntarily assigning future state lottery payments to third parties for lump-sum cash now, it has become clear to me there are many aspects to be considered when selecting a funding source (investor) for these transactions. The most obvious consideration is going with the best price quote. Let's examine some other aspects which may prove to be even more important, whether you are the lottery winner or a winner's representative.

    The funder should insist the winner be represented by counsel. Winner's counsel, working with the funder's counsel, should be involved in the creation of the assignment agreement and be advising the winner prior to the winner signing anything. The winner should pay his own legal bill for this representation and the funder should have no involvement in the selection of this attorney.

    The assignment agreement should state a specified time period for the funder to complete the transaction after which the winner can withdraw. This is important because the funder can many times make increasing profits the longer it takes to close and at the expense of the winner and the referral source. We've seen numerous firms conduct business with no such dates in their agreements and thus are able to tie up winners much longer than necessary.

    Most firms include a "right of first refusal" clause in their assignment agreements. This means if the winner, at a future time, decides to sell more lottery payments, the original firm will be given the opportunity to match or pass on an acceptable offer the winner receives from another firm. One should not want to do business with a funder who convinces the winner to ignore this clause included in a prior agreement because the chance is great the original funder will learn about this new sale and file suit against the winner because of this contract breach. Ignoring this clause is not a problem for the funder, but could be a serious and expensive problem for the winner.

    Be tuned in to a funder's quote that appears out-of-line on the high side of other quotes obtained. It may be a number not achievable and disclosed as not do-able just before closing, when the winner is so hungry for his money that he might agree to almost any revised figure. An example of an excuse the funder could use for a last minute price adjustment is "our cost of money turned out to be higher than anticipated." If the winner had proper legal representation from the beginning, the chance of this happening is quite slim.

    Winner representatives and winners themselves should roughly know the annual discount rate or loan interest assumed in computing the numbers and representatives should not just turn over the winner to the funder and wait for a referral fee check. A referral source should want the winner to be treated fairly. Though one may not be familiar with what the going rates are at any given time, learning of a 20% interest rate and/or the need to have the winner travel to a different state to sign the closing papers should raise the proverbial red flag. Keep in mind the possibility always exists the winner could initiate litigation sometime in the future over this transaction for usury and other reasons and the referral source could easily become a defendant. Though probably an innocent defendant, it could cost thousands to prove this.

    Winner representatives should deal with funders who will protect their interest. This means, if you approach a funder with a lottery prospect for quotes, this prospect is yours. The funder will not give quotes to other referral sources who might also approach the funder with the same prospect. The funder should instead inform these other referral sources that it is already working on the transaction.

    Be concerned if a funder suggests an "in-house" investment for the winner's lump-sum instead of giving them a check for it. Examples could be, offering to pay above market interest rates on cash or agreeing to make the original annual payment to the winner, but for a much longer time period than the original prize called for. The referral source could be sued by the winner if the investment doesn't work out and sanctioned by the SEC for possible security law violations.

    Now it's very clear, there are a multitude of issues to consider when selecting a funding source for state lottery winners. Do you select the firm offering you the most money? Yes… as long as they measure up to all the above suggested standards. It's worth the time investment to find a reliable company that deserves the trust needed in this type of transaction.

    Source: Martin S. Granoff, owner of Granoff Enterprises.

    In a previous article, I shared the first five of the techniques I teach Realtors® to help them see the potential when it comes to seller financing. [Real Estate Paper: Your Most Valuable Tool].

    When investing in real estate notes, there are options available to avoid balloon payments. Balloons have been called "foreclosures in embryo." These four techniques are ways to avoid or minimize the impact of balloon payments.

    1. Balloon payment extension rate

    Instead of a balloon payment, the interest rate could increase at a certain time. For example, at 60 months, the 10% interest rate may jump to 15% or some other rate. What would the seller do with the cash if he or she were paid off?

    Plug into the note a rate that might make the seller happy with their rate of return. A higher rate may encourage the buyer to refinance, which would accomplish the same purpose.

    2. Balloon payment--sell the note

    Five years into the note, the note may be well seasoned with a good payment history. At that time, the note could be sold for cash to a paper investor.

    If there were originally a balloon, it could be structured that with a good payment history and an acceptable loan to value (LTV) ratio based on current property values, the note could be extended for another five years. This seasoned, short-term real estate note with a good payment history could be sold for little discount.

    3. Bubbles instead of balloons

    A small balloon payment for less than the full amount of the note is sometimes referred to as a bubble. What are the seller's needs? Could smaller lump sum payments over a few years meet his needs?

    As a note broker, it is sad to see sellers sell a large note and take a big discount just to get a small amount of cash. At other times, sellers receive balloon payments then turn around and put it in the bank at half the rate they were getting on the note.

    4. Partials instead of balloons

    One way for a seller to receive cash is to arrange to sell the next few years worth of payments to a paper investor instead of a balloon payment in 60 months.

    About the author - John D. Behle is one of the foremost educators and practitioners in the field of discounted paper investment. His innovative strategies and techniques have shaped the industry. With over two decades in the industry and an extensive background in real estate and finance, John Behle adds a wealth of knowledge and experience to his creative money-making techniques.
    John holds an National Council of Exchangors Gold Card and an EMS designation. He is also listed in Who is Who In Creative Real Estate. He is the author of several hundred articles published in national magazines and newsletters.

    Source: creonline.com

    Your company just delivered an order to a major customer "right on time." Now, let's move on to the next order.

    But hold it, there is a problem: No funds! It will be at least 45, maybe 60, or even 90 days until the invoice gets paid. Oh, there will be no money problem with this customer, but that does not help today. Cash is needed now to meet necessary expenses such as payroll.

    Here are all the 'traditional' ways of raising cash.

    1. Line of credit: The most prevalent form of financing available to businesses. The bank authorizes a specific amount of money the company can withdraw -- loan on demand. Repayment is made in a specific time period and in amounts based on outstanding balance.

    Pro: Funds are readily available and interest is payable on outstanding loan only.

    Con: The company must provide security for the loan. Line of credit may be too low for aggressive growth. Due to strict new loan regulations and policies, this form of loan is disappearing fast.

    2. Fixed time loan: A set amount of money for a fixed time period.

    Pro: No payments are required until the end of the loan.

    Con: The entire amount is due at once. The credit rating and security of your company determines if the loan is available.

    3. Accounts receivable loans: A loan against receivables. It is similar to actual 'factoring.'

    Pro: Less restrictive, lower cost.

    Con: The credit rating and collection history of your company determines if such a loan is made. Since the bank is not able to verify with ease when the invoice is paid, this type of loan is practically extinct.

    4. Inventory loan: An amount of money against the 'salvage' value of inventory.

    Pro: Convenient, relative low cost, repayment geared to sales.

    Con: The credit rating and collection method of your company is important. Because the lender has difficulty verifying inventory status and corresponding invoicing, this type of loan is rarely made.

    If none of the above ways of raising cash is available for one reason or another, what options are there? The answer: factoring -- the method everyone loves to hate.

    Factoring is accounts receivable financing and has been around for hundreds of years right here in North America. Misconceptions about factoring abound even among business people, who mistakenly assume that factoring is only for companies in financial difficulties.

    The volume of credit card purchases are by now well known. The merchant receives immediately cash minus a percentage from the credit card issuer. If the merchant had to wait until the credit card is paid by the customer, the store may be out of business by then. For the privilege of receiving the cash on the spot, the merchant willingly pays a fee of two to four-and-a-half per cent.

    5. Factoring: Financing accounts receivables.

    Pro: The merchant receives cash in 24 hours or less. The creditworthiness of the customer is more important than that of the supplier. (Especially for growing companies.) Yet it improves the credit status of your own company. Factoring improves collection and account receivables. Customers who usually pay in 60 days, may now pay in 30 days. Your company avoids dilution of ownership, equity and ownership. You are able to take advantage of trade discounts. Working capital turnover increases. There is now a large supply of lending funds not otherwise available. And sales increase through credit extension.

    Con: Factoring is not as closely regulated as banking. And it has a higher cost than banking.

    Many companies, even those with very low profits, have doubled and tripled their sales in a very short time with factoring. Yet it is not a panacea. If your company is already borrowing heavily, address the problem rather than seeking additional funding. Deal with a factoring company that has the capacity to finance up to $2 million per month and has offices around the world. (Remember, your customer may be in another continent). If the factor is backed by a major financial institution, you are in good hands.

    Rates may range from three to 14 per cent, averaging five to six per cent of the value of the receivables. You should never be asked to pay an application or processing fee. And a complete proposal, with all the terms, should be provided at no cost.

    A factoring company with a variety of services is more likely to satisfy your special needs. Factors use brokers. Deal with brokers that know factors with the best rates and quickest approval.

    Although factoring fees are five times that of the interest rates at a bank, it may still be the best solution to your business, especially for a new or growing company. A bank may cut you off once your credit is exhausted and may even call the loan.

    Factoring on the other hand will never 'gag' you just when business is booming. You receive substantial administrative support and receive important credit information on your customers.

    A few terms you should be familiar with:

    Advance Rate: The amount of cash the factor advances you immediately (upon approval). This ranges from 70 to 95 per cent.

    Discount Rate: The percentage of the invoice which the company keeps for itself (fee). This is determined by the volume of business you give to the factoring company and the credit rating of your customers. A government invoice is more valuable than selling to no-name companies.

    Recourse and Non-recourse: Liable or not liable. Fees are lower if you agree to purchase any uncollected receivables after a predetermined age.

    Written by Karl Kruning who represents International Revenue Service Inc., a factoring company with services worldwide. He can be reached at (416) 502-3469.

    Source: FindArticles.com

    A New York state court ruling reported in the New York Law Journal on April 1 seems, at first glance, to challenge the legal status of outside litigation financing in New York. Such financing allows plaintiffs to fund their expenses - from medical care, to expert testimony, and the like - without wholly relying on their contingency lawyers' coffers to do so.

    The decision, Echeverria v. Lindner, casually suggested that New York courts should view investments in lawsuits as loans, which would therefore be regulated by New York's usury statutes. (The usury statutes prohibit the charging of excessive interest.).

    In this column, I will explore why Echeverria is a troubling decision. I will argue that it ought to either be repudiated by other New York judges, or be limited to its very special facts.

    The Basic Facts of Echeverria, and the Issue on Which the Judge Focused

    On September 1, 2000, Juan Vicente Echeverria was working as a day laborer on a construction site in Long Island when he fell off of an elevated platform . His injuries were so serious that he eventually required back surgery.

    Echeverria sued under New York's Labor Law § 240. That law holds contractors and property owners strictly liable if a safety measure designed to protect a worker from an "elevation-related hazard" turns out to be inadequate, fails, and causes an injury.

    On June 4, 2003, Echeverria was able to obtain a default judgment against two defendants, and on August 2, 2004 Echeverria was able to obtain default judgments against three more defendants. On October 27, 2004, just before trial, Echeverria settled with the remaining defendants.

    The damages issue was left to the judge. Judge Ira B. Warshawsky decided, after some misgivings, to award Echeverria $2.1 million in damages. Echeverria had suffered considerable medical expenses, loss of earnings, and pain and suffering as a result of his fall. In addition, the judge noted, Echeverria also had had to pay a company named Lawcash $14,806.

    What was this for? On November 25, 2003, Lawcash handed Echeverria a check for $25,000. In its contract with Echeverria, Lawcash described the $25,000 as an investment in Echeverria's suit.

    Under the contract's terms, if Echeverria was successful in his litigation, Lawcash would get all or some of its money back (depending on how much Echeverria himself was able to obtain), as well as a significant additional payment. If Echeverria lost his suit or recovered nothing, Lawcash would receive nothing, losing its $25,000 "investment.".

    Judge Warshawsky noted that Lawcash received almost $39,000 in return for its "investment" of $25,000, for a "profit" of almost $14,000 in less than a year. He was clearly bothered by what he saw as a more than 50% rate of interest. And he wondered if the contract that opened up the possibility of an interest rate this high was illegal.

    This was an odd issue for the judge to focus on, because Lawcash was not a party to the proceeding, and had already been paid.

    Had Echeverria sued Lawcash to try to void the agreement, it would have been logical for this issue to be raised. But it was not logical in the proceeding to determine how much the defendants would pay Echeverria to compensate him for his losses.

    So why did the judge raise the issue of the legality of the Lawcash contract? Maybe he was trying to send a message about the whole outside litigation financing business.

    Was This Rate of Interest Illegal? Some Possible Bases for Thinking So

    First, Judge Warshawsky explored the possibility that the contract between Echeverria and Lawcash was invalid because it was champertous.

    I have examined the strange history of the rule against champerty in the United States in a number of earlier columns - including this one. The rule basically tries to limit the "stirring up" of litigation by officious intermeddlers (or lawyers) by prohibiting individuals from purchasing another person's lawsuit.

    But it turns out that New York has a very limited rule against champerty - one that does not view an investment in a suit that has already been filed as problematic. After all, absent very unusual circumstances, an investment by a third party after a plaintiff has sued cannot be the cause of the lawsuit. Such investments might enable a suit go forward but they don't usually "stir it up"; thus, in New York's view, they aren't champertous.

    What about the idea that the agreement interfered with Echeverria's ability to make independent decisions about whether and when to settle? An Ohio court had so held, with regard to all agreements regarding outside litigation financing, in 2003 in Rancman v. Interim Settlement Funding Corp. - a decision that I criticized in an earlier column.

    But Judge Warshawsky did not echo the Ohio court's reasoning. Indeed, he noted that litigation financing might actual actually help plaintiffs in retaining their independence, by giving them the leeway to resist the temptation to settle too cheaply. And that dynamic certainly may have been true in the case of Echeverria himself - an illegal alien working in a blue-collar job, who very probably had little savings.

    Was the Agreement a Contract for a Usurious Loan?

    Judge Warshawsky next took up the question of whether the Lawcash agreement was void because it was a usurious loan.

    New York, like most other states, has criminal and civil laws against usury. New York's law generally prohibits loans charging interest higher than 16%.

    Judge Warshawsky held that the agreement between Lawcash and Echeverria was a loan agreement. And he noted that it explicitly provided for a return of at 3.85% per month if Echeverria succeeded in his suit. Thus, he concluded that it was usurious. Judge Warshawsky held that Lawcash should have received no more than $4,000 in addition to the return of its initial $25,000 investment.

    But why did Judge Warshawsky view this as a loan agreement in the first place - rather than an investment agreement (which would then fall outside the usury law)?

    The judge deemed Echeverria's claim a "sure thing" because he was suing under a statute that imposes strict liability. (Strict liability is not dependent on a showing of negligence; it follows directly from a showing of causation and harm.)

    Why Judge Warshawsky Was Wrong to See The Lawcash Agreement as a Loan

    There are a number of reasons to be skeptical of Judge Warshawsky's argument.

    First, the idea of any lawsuit being a sure thing is a little silly. Until a judgment has been collected many things can go wrong.

    Second, this lawsuit was far from a "sure thing" in 2003, when Lawcash invested in the case. At that point, two defendants out of a set of seven or eight had defaulted (that is, failed to appear in court). Thus, no one could know if they had any assets, or if they did, how difficult it would be to reach them. Moreover, Echeverria's illegal alien status might reasonably have seen as complicating his ability to win and collect a judgment. What if he were to be deported before the case could proceed?

    Third, strict liability is not absolute liability. The plaintiff has to still prove that the accident was caused by the absence or failure of a required safety measure that failed to give the proper protection.

    So the plaintiff was to prove more than merely that he suffered an "elevation-related" injury while in the employ of the defendant or on its property. This proof could have gone wrong - or been rebutted by defendants - in any number of ways.

    If scaffolding cases were truly open and shut, why would defendants ever go to trial with them? Yet they do. And Judge Warshawsky, as a trial judge, must know that.

    The Problematic Implications of Judge Warshawsky's Ruling

    In the end, Judge Warshawsky's ruling is not only ill-reasoned, it is so vague as to be useless. That is why I believe other courts should shy away from following it.

    Judge Warshawsky cannot really be saying that all civil cases based on strict liability are "sure things." They plainly are not. So he must be saying, instead, that judges should decide, case by case, whether a given case was a sure thing - and if it was, strike down any agreement with an entity such as Lawcash.

    This is recipe for disaster. Judges' assessment of cases will be inevitably affected by twenty-twenty hindsight, when the question is really what the case looked like when Lawcash entered into its agreement with the plaintiff. And the end result will be that the firms that provide litigation support will charge more for their services, out of fear that they will not know whether any given agreement will be deemed usurious or not.

    Some firms may limit their activities or leave the market. Plaintiffs will inevitably be hurt; some may not be able to get their litigation financed at all.

    Imagine if this had happened to Echeverria. He got his back operation only a few months after Lawcash invested in his suit. What if Lawcash had not invested? Would he still have received decent medical care, and gotten a $2 million judgment?

    Judge Warshawsky never offered facts to suggest that Echeverria was made worse off as a result of the deal he struck with Lawcash. If anything, the facts suggests Lawcash's money was important in Echeverria's litigation success.

    The Wrong Way to Reform Litigation Financing

    It may be the case that the litigation financing industry needs to be regulated in ways that insure that firms like Lawcash do not take advantage of a poor and vulnerable laborer like Echeverria. But rulings like this are the wrong approach.

    The theoretical concerns that the judge might have about litigation support have not yet been supported by evidence. Furthermore, the solution offered by the judge--to apply a cap of 16% return to those cases that are determined after the fact to be "sure things"--would make it more difficult than ever for litigants to get help.

    Written by: Anthony Sebok
    Source: FindLaw

    by Lorelei Stevens

    If you are getting a divorce, or know someone who is getting a divorce, you will find it helpful to know about divorce liens. A divorce lien can avoid the usual turmoil of selling the house and splitting the money - the home often being a divorcing couple's largest single asset. With a divorce lien, one party keeps the house, and the other gets a note and deed of trust (or mortgage) secured by the property. One gets real estate and the other gets paper.

    In this arrangement, the spouse who keeps the home, often the wife, has the same familiar environment for herself and the children. The children don't have to change schools. There are no divorce relocation costs. She retains a fair share of the equity and hope that the price of the home goes up. She has the obligation to pay the departing spouse according to an agreed-upon schedule.

    The departing spouse, often the husband, signs a deed to the house over to the wife, and in return gets a note and a deed of trust secured by the home - a divorce lien. The departing spouse can hold the note until it pays off, or he can sell it for cash. If the departing spouse has no need for immediate cash, he can accept a payoff, in many cases in about five years, or when the youngest child is eighteen. If the departing spouse does need immediate cash, he can sell the note and ordinarily receive tax-free money. This provides funding for new living quarters, help in paying attorney fees, child support, and a new start in life. If he sells the note, this financial connection to the house ends.

    This win-win scenario can ease the pain of a divorce to some small degree. However, a divorce lien is not for every case. The divorcing couple's situation must meet some guidelines. First, the family must have substantial equity in their home. Second, the spouse who retains the home must be able to afford property maintenance and the payments on the first mortgage - a divorce lien is usually a second mortgage. Since a divorce lien also requires a certain minimum of cooperation between the divorcing spouses, you will recognize at the outset that some divorcing couples may not agree to this approach. When it is possible, it gives benefits to both parties that would not otherwise be available.


    How to Create a Divorce Lien

    You need specialized knowledge in order to structure a divorce lien properly. Both parties need to understand these basics. A divorce lien is based upon a deed, a note and a deed of trust (or mortgage). The departing spouse deeds the property over to the remaining spouse, who continues to live in the house. The remaining spouse signs a note payable to the order of the departing spouse and gives a deed of trust secured by the property. This arrangement, if properly structured, will result in a note which is a valuable asset that can be sold for cash.

    First and foremost, the note must be salable and both spouses must be informed that the note is intended to be a valuable asset that can be sold for cash. Once everybody understands that fundamental fact, attention can be focused on how to make sure the note is actually salable. There are many technicalities that can render such a note unsalable or less valuable.

    The proper procedure to assure the note's salability begins with the departing spouse - we will assume it is the husband in this discussion - conveying title to the property by signing a deed to the remaining spouse - the wife. The husband and wife must provide all documents required by law to get the deed recorded. This could include affidavits, excise tax forms, or other required items, depending upon the laws of the State in which the family home is located. While this deed is being prepared for recording, simultaneously a note and deed of trust will be prepared for the wife to sign in favor of the husband. Special care must be exercised in preparing the note, because its salability depends on these crucial factors.


    Salability

    The first thing is the husband should be warned that the original note that he will receive must be kept in a safe place in his possession. If it is lost, stolen or destroyed, a copy will not suffice. He will not be able to sell it. Even if he does not want to sell the note, not having it in his possession may hinder his ability to enforce his rights. In preparing the actual language of the note, it should be a negotiable instrument whenever possible.

    The first rule of negotiability is that the note must include a time certain when the note is due. A time certain is an exact date, such as December 31, 2007. It is not an event such as "when the house sells," or "when the wife remarries," or "when the youngest child is eighteen," or "upon the death of the wife." If an event is written rather than a time certain in the note, the note will not be a negotiable instrument and it will have little or no cash value.

    The next rule of negotiability is that the note must be written so that it is not governed by or subject to any other agreements, terms, conditions or events. In a divorce situation, it is a common practice to write the note governed by or subject to the dissolution agreement. If the note is written subject to or governed by any other document, it will make the note non-negotiable.

    It is particularly important to avoid making the note subject to claims, modifications, or offsets of the wife. The most common problems include making the note subject to the future performance of the husband, such as allowing the wife to collect any unpaid child support from the balance due on the note. Another common problem is to give the wife first right of refusal to buy the note at a discount if the husband wants to sell it. If the note is written subject to any claims, modifications or offsets, the note will not be a negotiable instrument and will have little or no cash value. If a specific case requires creation of a non-negotiable instrument, the note will most likely be unsalable, but in some circumstances may still be salable for a much lower amount.


    Money

    You should also know how to create a note that can bring the highest cash price. Keep in mind these three principles based on the time value of money: A note is worth more if it has monthly payments instead of just one lump sum, if it has a short term to the payoff date, and if it has a high interest rate. If the wife can afford to make monthly payments on the note rather than one large balloon payment at the end of its term, the note will bring a higher price. However, most divorce lien notes do not have monthly payments because the wife's financial situation does not allow it.

    If the note can be created with a term of no more than five years, it will bring a higher cash price than one with a longer term. The higher the interest rate on the note, the higher the cash price will be. A note with no interest may fulfill the divorce settlement, but it will result in a deep discount in the event the note must be sold. At the other end of the range, the highest legal interest rate may prove to be more than the wife can actually pay off when the house sells - the interest could eat up all of her equity so that the sale price of the house could not cover the balance due on a high-interest divorce lien note. Thus, the best interest rate for top value is the highest practical rate, taking into consideration the economic realities of the case.

    If the note extends beyond a one-year time period without any payment, it must specify exactly how the interest is to be calculated, either simple or compounded annually. Simple interest is calculated on the original amount of the note, whereas annually compounded interest adds interest to the principal balance each year, so that the previous year's interest becomes part of the next year's principal - earning interest on interest. Failure to specify the interest calculation method will result in a note buyer basing the note's value on simple interest, which will lower the cash price.


    Wrap-Up

    When the documents are complete and signed, the deed is recorded first, then the deed of trust. The note is given to the departing spouse. This is the time for each of the two parties to buy title insurance. The wife should get an owner's policy and the husband a mortgagee's policy. They usually don't want to pay this expense, but it is a vital protection for each of them. Divorces routinely make couples secretive about financial matters, and a title insurance policy will make sure that neither of them has conveyed or encumbered the property without the knowledge of the other.

    The fire insurance on the house needs to be changed at this time, making the wife the insured and the husband the mortgagee. This usually doesn't cost any money. It's a good idea to contact the first lien holder to which both husband and wife are obligated to pay. The husband can request that he be released from liability. The first lien holder is not likely to do so, however, unless the wife can qualify financially to pay the payments without the income of the husband. Sometimes, the first lien holder will agree to do so after payments from the wife have been promptly received for a certain amount of time - for example, two years. The wife should sign permission for the husband to have access to information about the first lien mortgage until the divorce lien is paid off.

    Clearly, a divorce lien is an excellent solution to the emotionally and financially draining problem of property settlement. Divorce liens can be created on other assets besides the family home. For example, investment properties and businesses can be divided in a similar manner. Of course, it is imperative that the creation of the divorce lien should be reviewed by attorneys for both the husband and wife, to ensure the house is deeded properly and the lien is structured properly.

    This information can be useful to:

    Husbands
    Wives
    Attorneys
    Mediators
    Accountants
    Note Buyers
    Financial Advisors
    Certified Divorce Planners
    Real Estate Agents
    Business Brokers
    Friends
    Relatives
    Co Workers

    The information is summarized from over 31 years of experience. It will prove invaluable to individuals and professionals involved in structuring a divorce lien.

    Lorelei Stevens is president of Wall Street Brokers, Inc. in Seattle, Washington. She has been a licensed real estate broker (Washington State Real Estate Brokers License WA-LL-SB-*275LD) and a discounted note buyer since the 1970s. She has worked her entire adult life with Wall Street Brokers negotiating millions of dollars of paper and is a nationally recognized expert.

    Source: REIclub.com

    As the secondary market surges ahead into the age of the internet, E-Commerce and computer EVERYTHING, we receive a lot of requests to consider business notes secured by industries and service related companies involved in varying facets of the cyber world. Historically most business notes were created through the sale of a retail outlet, manufacturing business, service industry, etc., businesses with something tangible that could be foreclosed on.

    However, we are seeing more and more service related businesses LIKE a Dot Com that come with little to no security in the form of hard assets. Still, as has been the case for a decade in the business note arena, many of the same issues that concerned us on a "Ma and Pa" business note in the pre E-Commerce era are still a major concern today as we evaluate a business note, corporate buyout, merger and acquisitions, etc., such as:

    Longevity in Business

    How long a business has been open and operating speaks volumes about its potential to be around AT LEAST as long as there are payments remaining on the note. A strong pay history tells us that he is obviously comfortable with the business and knows what he's doing. A business, ANY business that has recently opened its doors has yet to generate a loyal clientele. There's no telling whether or not the concept will be accepted by the consuming public. The "Dot Com" blood bath is a good example. Still not convinced? Attend a Silicon Valley "Pink Slip" party and talk to the thousands of unemployed that thought they had it made just months before. "Boomers" driving "Beemers" now arrive on Go-Peds.

    Generally we like the business to have about three to four years of operating history. We can review its corporate tax returns for the two to three years prior to the sale and ascertain if it was a profitable venture or if the Buyer took over a sinking ship. This is even more crucial in any hospitality industry notes (restaurants, deli's, bars, etc) where word of one bad meal can spread like a wild fire killing any hopes of success.

    Business type/Collateral Security

    Different business types come with a variety (or lack thereof) of collateral securing the note. While we appreciate that in the event of a default the "stuff" securing the note will be worth pennies on the dollar at a local auction house anyway, we still like to review notes with SOME level of tangible, foreclosable chattels as security. An e-commerce business likely has little to no assets other than a few used computers and a couple phone lines. In many cases even e-commerce businesses that actually HAVE a product keep very little in inventory, ordering on an as needed basis. Many of you may remember the on line auto insurance company business note that circulated for almost a year before disappearing. We saw it two to three times a day at one point...it was really being shopped. The seller boasted that the new business was sure to explode, that the buyer got in with little down, there was no inventory involved or required and he was working it out of his spare bedroom. Wonder if he noticed his toes disappearing as he kept shooting himself in the foot?

    Professional businesses like Doctors, Chiropractors, Attorneys, etc. are okay, assuming we have a comfort level with the Buyer, and they're experienced in the business in question. A seasoned, veteran Doctor who patients have been with him for years may not approve of the new, young intern that just bought "Doc Brown's" practice. That could kill the business before he gets a chance to prove himself. There goes the note. So a little seasoning would speak volumes about the strength of the note.

    Businesses with little to no collateral must have some other mitigating factor to entice us to consider it for acquisition. That leads us to our next point which is:

    Payor Financial Strength/Equity/Credit History

    A buyer that contributes a sizable cash down payment tells us that there's a good chance they did a lot of research on the business, that they have confidence in their ability to operate the business successfully, may have experience in this TYPE of business and that they have a serious monetary (as well as psychological) investment in the business and it's success. BUILT UP equity (through pay history and seasoning) is not the same. THE BUSINESS makes the monthly payments, it really doesn't come out of pocket. A buyer that gets in with little to no down can run the business for a year or two, develop financial trouble and say to himself, "well, it was a nice run, I paid myself a nice salary, made some money but now its over". All he has to lose is his credit record which, unfortunately, too many people these days could care less about. As you'll see at our web site (www.nationalcapitalcorp.com) there are minimum cash down payment requirements for these high risk notes.

    Also keep in mind that "Credit" is not an indication of financial strength. An immigrant in this country for three months can have a high credit score but own nothing. We implore business brokers to make personal Financial Statements part of the qualifying process for their selling clients. A buyer is not obligated to provide one piece of information about himself just because the seller now wants to sell the note. The same goes for the financial status of the business in question. We advise sellers and their brokers to include a clause in the Purchase and Sale Agreement for the business that the seller can request year to date P&L's at least twice a year. While this is a great way for the note holder to protect his investment and possibly see signs of things to come if the Buyer is having trouble, most balk at the idea or feel they will be "imposing" on the Buyer. Unbelievable. The Buyer owes you thousands of dollars and protecting your investment is imposing?

    Business Assets: The business must have serious, tangible, liquid assets. While we prefer to be in a perfected first lien position we'll occasionally accept a Junior position depending on the size of the Payor's company and their financial strength. Hopefully the business has a Dunn and Bradstreet number we can review. Last couple years of corporate tax returns and year end P&L's will be required as well. We need to ensure the Payor is strong and that they are not heading in the wrong direction.

    All in all the face of the Business Note arena is changing in ways that provide increased opportunities for the savvy broker. HOWEVER, as has been the case for years, maximizing your efforts and profit potential hinges on your explaining to your clients HOW the game is played, what the underwriting criteria will be and most importantly, how SIGNIFICANT the discounts can be. A full will ALWAYS be the worst way for a seller to go. Persuading your clients to look at the creative "options" you (through us) can provide and then zeroing in on their IMMEDIATE cash requirements will increase both your kill ratio and bank account.

    Source: NationalCapitalCorp.com

    Health care providers are challenged by the constant demand for new technological equipment and a decrease in available capital. Many are turning to equipment leasing as an attractive alternative.

    To better negotiate a mutually successful transaction, lease parties need to understand the structure and business reasons behind standard lease provisions.

    Operating leases (noncapital leases) offer an economical way to acquire sophisticated equipment without negatively impacting a lessee's balance sheet. For the lessor, the payment of rent provides a positive return on its investment. At lease-end, the lessor benefits from the sale or re-lease of the equipment and, during the term, enjoys the tax benefits associated with equipment ownership.

    Generally, the lessee can expect a "triple net" lease and will be responsible for maintenance; payment of sales/use and property taxes (where applicable); and, insurance (for both property and liability coverage). Payment of rent is absolute and unconditional; rent is due whether or not the equipment functions as expected.

    The lessee does retain certain remedies, however, including the pursuit of claims and warranties directed against the manufacturer or supplier. Accordingly, the lease should assign warranty rights to the lessee and obligate the lessor to cooperate in enforcing such warranties.

    The lease will specify the lessee's obligations for equipment use and maintenance. If the equipment is returned upon lease termination, it must be returned in the same condition as when originally accepted(ordinary wear and tear permitted).

    Both parties should avoid onerous return provisions, such as returning the equipment to any geographic location specified by the lessor. If the costs of the return effectively compel the lessee to either renew the lease or purchase the equipment, the IRS could recharacterize the transaction as something other than a true lease.

    The lessee is usually obligated to insure the equipment. Depending on the lessee's circumstances and its creditworthiness, insurance provisions may be negotiated, especially if the lessee is self-insured. The lessor is typically named as loss payee for property coverage and as additional insured for liability coverage.

    Leases virtually always require the lessee to indemnify the lessor for a wide range of contingencies. Indemnity obligations generally fall into two categories. The first requires the lessee to indemnify the lessor from third-party claims that are related to the lessee's use of the equipment.

    The second relates to the lessor's ability to enjoy the income tax deductions related to the equipment. The benefits associated with depreciating the asset are a material part of the transaction from a lessor's perspective.

    Written by Patrick K. O'Hare, a principal at Ober Kaler in Washington, can be reached at pkohare@ober.com.

    Source: BizJournals.com

    Note Creation
    Two years ago, in the spring of '94, a client of ours, Mary, decided to put her house on the market. Mary and her REALTOR(TM) tried many approaches: that weekly TV program, fresh cake at the open houses, even that new-fangled emerging technology called the World-Wide Web.

    Eight months later, Mary meets a young executive, Bill. Bill and his family are moving to this area from the other side of the country. He and his wife absolutely love the house. One week later, they and Mary agree on a price of $140,000. Bill writes a deposit check for $5,000. He pledges a total down payment of $40,000. Let's quickly review the basic mechanics of the normal real estate transaction: traditional financing. The buyer pays the seller a substantial down payment. The buyer then applies to a bank for a loan. If accepted, the bank pays the seller the rest of the money for the house, and the seller transfers the house to the buyer. At the same time, the buyer gives the bank a promissory note (an I.O.U.), which indicates that s/he will pay the bank every month for a given number of years.

    The Realtor starts to arrange financing for the remaining $100,000, only to find out: uh, oh! ... This young executive, who previously had a salary in the mid six-figure range, recently left his employer to start his own consulting firm. Bill's wife and two kids were at the Airport Hotel waiting for the house to close.

    Guess what! The bright young executive, even though financially quite capable, can't qualify for a mortgage. He was new to this area and had no verifiable employment. Even with $40,000 down, no lender would qualify him. ... The sale started to crumble.

    The Realtor then suggested to Mary that she offer seller financing. After thinking about it and all of the time and effort spent so far marketing her house, she reluctantly agreed. Mary got the $40,000 down payment, and she took back a mortgage note from Bill. Bill and his wife promised to pay Mary an additional $100,000 principal over the next 15 years, at an interest rate of 10%. Their monthly payment is $1,074.61. Mary is happy: In January of '95, the house is finally sold. Bill and his wife are happy: they finally left their hotel room and started to unpack all of those boxes. The Realtor is happy: she finally got paid for those eight months of work. Here are the basic mechanics of seller financing. The buyer still pays the seller a substantial down payment. The seller then accepts a loan from the buyer directly, and in exchange, transfers the house. There's no bank, and the seller just takes back the promissory note instead of the full cash amount. The buyer is agreeing to pay the seller directly every month.

    Note Basics
    About 20% of the houses sold in the U.S. involve some form of seller financing; one in five mortgage notes created are privately held. The legal contract containing the terms of the loan is called a promissory note. It is also known as a mortgage note, a trust note, or a purchase money note. It specifies the principal amount, the interest rate, and the timing of the payments. The promissory note is collateralized, or secured, by a second document. East of the Mississippi, the security is a mortgage deed. The mortgage allows the seller to foreclose on the property in case of default. The payor, the person making the payments, is called the mortgagor. The payee, the person receiving the payments, is called the mortgagee. An easy way to remember this is that the words "payor" and "mortgagor" end with the letters "or", just like in the word "door". The mortgagor lives behind the door of the house, and makes his/her payment each and every month in order to keep it that way. In the Western part of our country, we have trust deeds as collateral. The payor is called the trustor, and the payee, of course, is called the beneficiary. (huh?) (There is a third party, called the trustee, who holds the deed to the house, and is bound to give it to the appropriate party, because there are only two possible outcomes to a promissory note. Either the payor makes their payment each and every month, on time... or they don't.) There is a third instrument used primarily in the mid-West called a land contract or an agreement for deed or a contract for deed. The property is not legally transferred until all of the payments have been made. Just to keep things simple, the payor is called the vendee and the payee is called the vendor. (Hey, we didn't make up the rules; we're just reporting them.) The ideas in each case are the same; the legalities vary from state to state.

    Full Purchase
    Back to our story. Let's fast-forward one year. It's now January '96. Bill and his wife have paid Mary twelve payments of $1,074.61, a total of $12,895.32. That $100,000 balance on the note has shrunk all the way down to a mere ... $96,968.22.

    Now, Mary has decided to invest in a restaurant franchise. She had liquidated as many assets as she possibly dared, and she still needed an additional $80,000. A friend suggested that she call us, and we explained to Mary that we could get her the money she needed. A promissory note is a negotiable instrument. Mary sold her note, and instead of waiting fourteen more years to get her money, we handed her a certified check for $83,109.76. Mary was thrilled -- she even baked us one of those cakes that she had been making for the open houses.

    The seller was holding a promissory note that entitled her to receive monthly payments from the buyer. In this case, the homebuyer was doing just that: he was making the payments. When the NoteBuyers buy the note, they pay the seller a lump sum of cash, and the homebuyer is now obligated to make the monthly payments to the new holder of the note. (The terms don't change, just the name and address on the check.)

    Hey, wait a second! We just said that the amortization schedule stated a note balance of $96,968.22. How come a $97k note was only worth $83k?! Why is there such a difference? Why is there a discount?

    Let's consider: Before Mary sold the note, did she have the right to force Bill to pay off the balance of the note in full? Could Mary force Bill to pay off some of the loan early, or to make extra payments? No! She did not have the right to force Bill to pay off, therefore she cannot sell the right. Mary only had the right to receive $1,074.61 a month for the remaining fourteen years. Money in the future is worth less than money today. Why is that? Two reasons, really: Inflation... and risk.

    Inflation
    If you were offered the choice of a $5 bill or a $10 bill, which would you choose? If the choice was $5 now, or $10 in ten minutes, you'd still probably take the $10. Now, what if your choice was $5 today, or $10 in fourteen years? Money in the future is worth less than money today. Think for a moment how many bags of groceries $100 will buy today. OK. How about ten years ago? How many bags of groceries could you buy for $100? What about ten years from now? Think about the number of bags. Money today is worth more than money tomorrow. Historically, our inflation rate has averaged out at around 7%. At 7%, your money doubles every ten years. Thirty years ago, our parents might have bought a house for $15,000. Thirty years; three doublings: 2, 4, 8. Today, that same house could be worth about eight times that price, about $120,000. But, that also works the other way. A fixed amount of money drops in value. Your purchasing power is cut in half every decade. A thousand dollars in ten years will only buy as much as $500 will today. In other words, a thousand dollar payment in ten years is worth $500 present value. Inflation. Why was that note sold at a discount? Inflation is one reason.... Another is risk.

    Risk
    What are the risk factors found with real estate mortgage notes? The biggest concerns, of course, are collection problems, or even outright default. Can't the note holder foreclose on the property? Yes... but it is rare that the property is foreclosed at full value. Consider that the FHA currently gets only 61 cents on the dollar for foreclosures. This is another reason why the note is bought at a discount: the note buyer is paying money up front for future payments that may never come. There is also the possibility that a property's value may decline, or be completely destroyed. We've all seen the TV news pictures after hurricanes, earthquakes, tornadoes, fires.... Those homes belong to ordinary people -- folks like you and us.

    Risk Example
    Let's take a typical thirty year mortgage -- that's 360 payments.

    Payment #1 -- Arrives in Mary's mailbox... right on time.

    Next month: payment

    #2 -- Arrives in Mary's mailbox... right on time.

    #3 -- Right on time.

    #4... There's a pattern here. Of course. Bill doesn't want to lose his house!

    Payment #100; 8 years. Bill loses his job; he's out of work for 3 or 4 or 5 months. There's a little glitch in the payments. No biggie. Payment #200; 17 years. Bill's wife needs hospitalization.... She stays for a while.... Those medical bills are pretty hefty. Payment #300; 25 years. Bill dies.... All of these issues go through a buyer's mind, or should go through their mind, when he or she buys a note. Inflation and risk. This is why mortgage notes are valued at a discount to their face amount. The example above shows the home seller holding the note for some time before selling it. There's another way to do this, however, called "simultaneous closing". Here's what happens: The buyer pays the seller a substantial down payment. The seller then accepts a loan from the buyer directly, and in exchange, transfers the house. At the settlement table, once the home seller takes back the promissory note, s/he then immediately sells it to the Note Buyers. We accept the risk of the buyer's default, and the home seller walks away from settlement with all of the money.

    Partial Purchase
    We'll close with a fun topic. Think what you would do if we handed you a check for $20,000. What would you do with the money? Invest? Pay off debts? Travel? Buy a car? Let's take our example with Mary. Instead of selling her entire note, let's say that she only wanted enough to buy that car. Remember, she has a note with a balance of $96,968.22. We could buy what's called a "partial" cash stream. In this case, we would buy the right to receive the next 24 payments. We pay Mary $20,753.05. For two years, we collect the monthly payments. In two years, the note would go back to Mary, and it would still have a balance of $89,919.02. She would then resume collecting those monthly payments of $1,074.61 for twelve more years.

    Conclusion
    How can you use a promissory note to help you sell your house? You can sell your house faster if you increase the size of the pool of potential buyers. One way to do this is to offer seller financing, just like Mary did. When you create the note, there are some things to keep in mind which will help you increase the value of the note. If you hold the note, the paper will have a higher value to you. If you sell the note, you'll get a higher price from the buyer.

    Source: Condor Financial

    The history of life settlements is relatively short. Beginning in the early 1990’s as viaticals, the rise of the life settlement market shortly followed. A viatical is the sale of a life insurance policy, by an insured, who has a terminal illness, that can reasonably be expected to result in death within a relatively short amount of time (many states vary as to the amount of time in which an illness is considered to be terminal, for instance Pennsylvania considers 24 months or less terminal, whereas Texas stipulates 48 months or less to be terminal). Viaticals were brought about, in some respect, by the AIDS epidemic of the early 90’s. Individuals who had contracted the AIDS virus often times found themselves in dire straits, as the cost of medication and treatment was extremely expensive. This led to resourceful individuals finding that they had, in essence, an extremely valuable asset – a life insurance policy with a death benefit that could possibly be realized in a very short amount of time. The insurance policy served no good purpose to the insured, as it did not pay out while they were still alive. It would, however, be a viable investment for someone who wanted to assist the individual who had the illness by paying that person a lump sum for their policy, who in turn could afford the treatments needed for their illness, and at the same time make a return on their investment.

    The beginning for the viatical business seemed to be bright. Investors helped those in need, and made a return on their investment while the individual with the terminal illness received the capital they needed to pay for the treatments for their disease. It wasn’t long, however, until unscrupulous individuals realized that this was an un-regulated market and a hot bed for fraudulent activity. Medical records were falsified to make the insured appear to be closer to their demise than what they really were, and “investors” promised incredible gains on investments that they in turn sold to others, who many times were elderly people who could not afford to lose what they had invested. The sales pitch was simple, “what are the two most certain things in life?” and the age old answer was, and still is, death and taxes. Unfortunately, some of these promised returns never became a reality due to the fact that premium payments had to be continued in order to keep the policy in force, and the insured who sold the policy ended up living much longer than what was expected, due in part to false medical information and/or the advent of new treatments for their disease. Others, who claimed to know the business, promised “high returns” and “no risk”, and simply took the money and spent it on themselves. This was, in large part, the reason for the “black eye” the industry got early on.

    Now, ten to twelve years later, the industry has become much more regulated. Many states have “viatical settlement acts” (which also encompass life settlements) enacted, designed to protect the insured and to some extent the investor. These new regulations help states keep a “pulse” on the transactions within their state and safeguard against fraudulent activity.

    From viaticals came the rise of the life settlement industry. Enterprising individuals realized that billions of dollars in face amount of policies were being lapsed or surrendered simply because the insured no longer needed the coverage, or didn’t want to continue with the premium payments. These contracts (policies) were being sold (or even given) back to the issuing insurance company for a fraction of their true value. Should somebody wish to make the premium payments to keep the policy in force, and pay the insured a lump sum value much more reflective of what the policy was worth, then that person could become the owner and beneficiary of the policy, and realize its benefits at the insured’s demise. That is, in a nutshell, what a life settlement is. An insured sells the benefits of their policy to somebody else in order to realize a greater gain from what they’ve paid in so far. After the sale of the policy the investor must maintain all premium payments in order to keep the policy in force. It is really just a function of contract law; an insurance contract is being bought and sold much like mortgage contracts are bought and sold.

    Life settlements have gained enough recognition as viable investment vehicles to attract institutional investors. Institutions investing in life settlements use “pools” of life insurance policies to create hedge funds. While exact returns are almost impossible to determine from one policy, a pool of policies creates returns based more on the law of large numbers. These returns, while still not exact, can be forecasted based on actuarial data and medical information provided by the insured. The attractiveness to the institutional investor is that a pool of life insurance contracts is not tied to the stock market or any other index, it is directly dependent on a given, independent of traditional financial fluctuations.

    The future for life settlements as an industry looks good. An estimated $490 billion in face value is estimated to have been written on seniors age 65+ as per a 1999 study. Of this $490 billion, $100+ billion is believed to be conducive to a life settlement. In 2002 alone, an estimated $2 billion in face was settled in the form of a viatical or life settlement. As people become more aware of the alternatives for their life insurance policies, it is almost certain that the industry will continue to grow and life insurance companies will be driven to either pay more for the policies that are in force on their books, or create better suited alternatives for their clients to take advantage of. In the end, one thing is eminently clear, that the consumer will be the one who benefits from the proliferation of the secondary market for life insurance.

    Source: Milestone Settlements, LLC

    Written by: by M. Anthony Carr

    There are many reasons why you may find yourself as the owner of a real estate note. A note is a financial instrument by which the owner of real estate borrows money against the property. Most times, the note is referred to as a mortgage. A homeowner can have several mortgages on one property -- totaling more than the value of the property with some programs. However, in most circumstances the note is only a portion of the value of the property. For instance, the property may be worth $200,000, but the mortgage is for $180,000.

    The first mortgage is usually held by a large lender -- such as a bank or investment firm. Second trusts can be held by large companies, but it's not unusual for individuals to hold a second trust on a property. In some instances, the seller of a property will offer to hold a second trust to enable a purchaser to buy the property. Sellers often make such an offer for several reasons. Most times it's because the buyer may only qualify for a smaller mortgage, so the owner/seller takes on a second to enable them to qualify to purchase the house.

    For instance, the buyer may put down 5 percent in cash, take on a mortgage for 75 percent of the value of a house, and then the owner creates a note for the remaining 20 percent to make the deal work.

    The note holder can hold on to this note and receive payments over time or he could sell it and get cash upfront, but at a discount. It's like either taking $120 over the next year at $10 per month or taking $60 now. Many note holders would rather take the lower amount of cash than hold out for the larger amount over time. This impatience can work in the best interest of a bargain-hunting note buyer.

    It works like this: Let's say a home sells for $200,000. The buyer puts down 5 percent ($10,000), the owner provides a 20 percent second trust at $40,000 and the bank loans the buyer the rest ($150,000).

    If the second trust was to be paid back over 15 years at 9 percent, the monthly payment would be $405.71. The total amount paid to the note holder would actually be $73,027.80 -- quite a bit of money. However, if the note holder got into financial distress in year 5, he has the option of selling the note for some quick cash. At this point the note is only worth $31,861 (after 60 payments) and to make it worth the note buyer's while, the note owner would most likely sell it at a discount. By discounting the note, the actual return on the buyer's money is more than the original 9 percent on the face of the note.

    For instance, if the buyer purchases the note for $25,000 and continues to receive the payment of $405.71 over the remaining 10 years of the note, he'll receive a return of 15.15 percent per year on the note. If the seller is really desperate and sells the note for $20,000, the return balloons up to 21.43 percent. But it hasn't been so bad for the seller by letting the note go for just $20,000. Remember, he's received 60 payments of $405.71 ($24,342.60) and then a final purchase price of $20,000, totaling $44,342.60. The drawback is that over 10 years, he's only received a cumulative 10 percent return on the money.

    Now -- the new owner will receive a total of $48,685.20 in payments on his $20,000 investment over the next decade. Not a bad return. What's more, it's a guaranteed return on the money, not a hopeful return like most investors face with stocks. In addition, the investment is secured by real estate, not paper or the last quarter's performance.

    So how do you purchase or sell these notes? There are plenty of places online to find those who want to buy notes, but the best place to look is to your local mortgage industry, settlement companies or real estate investment club.

    Your first contact would be with a mortgage broker/banker who is looking for people with a bit of cash who wish to buy seconds at the table when the property is being settled. Another contact would be with a Realtor who works with investors to help buyers in need creative financing get into properties.

    There are plenty of ways to invest in real estate -- buying paper can be one of the cleanest alternatives out there.

    Source: RealtyTimes.com

    Written by Ralf Bieler

    About a year and a half ago I wrote an article for Factor-Tips, telling the story of a nice win-win deal that turned into an even nicer success story for one of our factoring clients. Here’s a quick refresher:

    In March 2003, a young couple had been sent to us by S.C.O.R.E. They were looking to start their own business, specializing in transportation of mobile units (containers, offices, etc.). They were very committed to their idea, since the husband had been working in this industry for over six years as an employee and knew all the ins and outs as well as the right people on the customer side.

    Unfortunately, the young couple didn’t have any start-up capital to buy a truck and the materials needed to operate the business. What’s more, they were long on operational expertise, but short on business management skills. They had also made some mistakes in the past and had managed to produce a credit history, which was anything but stellar. In fact, when they came to us, they had a rather large number of open accounts, with quite a few of them even in collection.

    S.C.O.R.E. could not really help them with an SBA loan, and in fact, nobody was willing to even listen to them, once their financial situation and background became clear. I guess we were probably a last resort for them. Our factoring business was fairly young at that point as well, and we had a very idealistic view and outlook on things. Being refused by everyone they had talked to so far even made it a bigger challenge for us to succeed in helping make their dream of their own company come to life.
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    Well, long story short, we listened and decided to give it a try. We did industry research, wrote the business plan, and presented it to a local lender with whom we had a good relationship and who is also very creative when it comes to collateralizing a loan. When we presented the business plan to their underwriting committee, they agreed to provide the start-up capital to buy the truck and materials needed to get the show on the road.

    The extra twist: From day one of operation, we had a factoring contract in place, which guaranteed sufficient operating capital to run the day-to-day business. Just a perfect scenario for everyone involved. From the advances we pay, we even cover the servicing of the start-up loan, which was something the lender was particularly happy about.
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    Once the start-up capital was secured, we got them incorporated, designed and printed the business cards for them, and helped with everything else it takes to make a business operational. Operations finally started in July 2003 and so did our factoring relation. By the end of 2003, i.e. after 6 months in business, it was a smooth operation with year-end results being more or less on par with our initial forecast in the business plan.
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    The win-win: Against all odds, the young couple had made their dream come true. They were operating their own company (with us providing the business management expertise and CPA services on top of the factoring). We had a great success story, a very happy client, and a profitable factoring relation. With all the adverse conditions in the beginning of this journey, we now all felt larger than life. Success is indeed the greatest motivator!

    And now, the saga continues. By mid 2004, i.e., almost exactly one year after start-up, we began with the expansion plan. So far the business operated only one truck with the business owner doing all the operational work. He had been great with the customers, done excellent work for them, was well liked and respected by all of them, and was continuously increasing their demand for his services.
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    However, due to capacity limitations, the jobs he could do produced a lot but relatively small invoices ranging from $150 - $800, depending on the scale and scope of each project. Bigger jobs were still going to the bigger guys in the industry with more equipment and bigger teams to do them faster.

    But since Mike (not his real name) was strong on quality, safety, reliability, and customer relations, and since demand was high and the company was doing well, we decided in June 2004 to expand the operations. We bought a second truck and increased the work force to be able to handle bigger jobs.

    Between July and November 2004 individual invoice sizes now range from $150 to $15,000, and compared to the same period in 2003, Mike’s sales have grown by a factor of 3.4. In only a year’s time, he has more than tripled his sales volume and added phenomenal gains to his bottom line. And except for the initial start-up loan and the monthly payments for the second truck, the company is totally debt-free. All day-to-day operational expenses are still fully covered by our factoring.

    Having seen what Mike and his team can do in this industry is simply awesome. And having been an instrumental part of it since day one (and even ahead of time during the planning and set-up phase) feels pretty good, too.

    Now, why am I not calling this a win-win anymore, but rather a win-win-win-win scenario? Well, guess what! In a couple of weeks from now we’ll be sitting here again, revising Mike’s initial business plan in order to recapitalize the company and to outline the new way ahead. Mike’s customers have asked if we can handle even larger projects and have sent him RFPs for projects up to $100,000 a pop! We’re now buying a third truck, more and better equipment (which we might actually lease, by the way), and are adding a third crew, which will allow us to do just that. For the recapitalization, we’ll go back to the same lender, who initially supplied the moderate start-up capital.

    So, you do the math! Who are the winners in this game?

    Mike is making more money and growing faster, way beyond even our wildest initial imagination

    - We have an even happier client – and a nicely growing factoring volume
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    - Mike’s customers are thrilled, because they get more of what they want from Mike, which was impossible before, due to capacity limitations

    - The lender gets additional business from the recapitalization, and our leasing partner will profit from the equipment leasing as well And since we’re increasing the work force, I could have really added another two wins to this equation: We’re providing some additional jobs, which will not only make those workers happy, but it will also send the right signal to our economy in our little neck of the woods. OK, it’s only a small contribution, but hey, everything counts!

    And after all, achieving all this with a 1.5 year-old start-up company that nobody wanted to even touch with a ten-foot pole in the beginning when it was just another “great idea” is really such a great feeling and a big reward in its own right. It just goes to show that having idealistic goals and the determination to succeed can sometimes still move mountains, even when the circumstances are anything but optimal and many initial attempts fail. One thing is for sure though: you never win the prize if you give up too early.

    Source: Factor-Tips.com

    Introduction
    Before we begin, I want to help you understand the truth about structured settlements. Technically, you do not own the annuity that funds your structured settlement payments. All you own is the “RIGHT” to receive those payments. This may sound confusing, but it is to your benefit. It all has to do with the IRS rules that make structured settlement payments tax-free.

    So if you don’t own the annuity, who does? In most cases, the annuity itself is actually owned by a company that is, in turn, owned by an insurance company. The company that owns the annuity tells the annuity issuer (usually a life insurance company) to make the annuity payments to you. Confused? I hope not. Rest easy.

    The important thing is that even though you are not the owner of the annuity, the law now allows you to sell your “RIGHT” to receive some or all of those future payments—IF a court approves.

    For those into technical things I have written a report entitled "Understanding your Structured Settlement" that I give to the attorneys and their clients. It explains the legal and technical mumbo-jumbo. Just call or e-mail me and I will send it to you.
    Anyway, the reason I include this section is to let you know that if you decide to sell some or all of your future payments, the insurance company, the company that owns your annuity, and the courts all need to be involved.

    Before Selling Your Structured Settlement Payments For Cash

    1. Broker or Direct Funder? Suppose someone calls or writes and offers to buy settlement payments. Or you see a TV commercial or find someone advertising on the Internet. First question to ask yourself: Are you talking to a real ‘funding company,’ the company that will seek court approval and provide the cash when the court order is entered? Or, are you just talking to a middleman who is going to pass you on to another company and pocket a big markup. The Internet is full of "brokers" who advertise "cash for settlements," cash for private mortgages, cash for everything. In reality, many of those Internet storefronts simply take your name and information and sell it to a real funder. What do these middlemen cost you? They may say their services are "free." Do you believe that? The simple truth is that when a funder pays a middleman, that leaves less for you -- the actual seller. Dealing with a middleman could cost you thousands of dollars. Remember, of the hundreds of companies advertising "cash for settlements" on the Internet, only a handful are actually direct funders.

    On the other hand, there are legitimate brokers who will work for you. They understand the legalities involved and have access to the funding companies. These brokers get paid a commission for their services, but if you do not want to spend the time researching funding companies then it may be worth it for you to work with a broker. As always, you must do your homework and check out the broker you are considering to represent you. The same rules apply for legitimate brokers as with consultants who work directly for the funding companies: They should show you that they have your best interests at heart.

    Many of the brokers who work with me will send their clients to this website. They want their client to get as much education as possible. If your broker referred you here then it’s very likely that you have found a good one.

    2. Specialization. There are complex rules and regulations governing the purchase and sale of structured settlements. Failing to follow the complex rules or failing to present your situation clearly and persuasively to the judge could result in delay. Or rejection. These transactions should not be entrusted to amateurs or mass-production mills. Is the person you are dealing with a professional who focuses on the purchase of structured settlements for cash? Any real funder will have a full-time staff of in-house attorneys and paralegals who process structured settlement transactions in courts around the country and a network of local-counsel with a track record of getting deals done.

    When it comes time to sell, everyone wants their cash "fast." But the reality is that the process takes time. A court has to approve the sale. No reputable company can "guarantee" what a court will do or when the court will act. If someone guarantees you "cash in a month," watch out! They are just telling you what you want to hear in order to get you to sign their contract. Remember, if they lie to you in the beginning’’!

    3. Your Best Interests There are many good reasons for selling your future payments and receiving the cash now. Legitimate reasons would include buying a home or a car, completing your education, starting a business, paying off your credit cards with their high interest rates, or paying unexpected doctor bills. But if you need to keep getting monthly money from your settlement to pay for on-going medical needs or food or rent, then you need a plan that takes that into account. Remember, once you sell your future payments for upfront cash, there’s no going back. Maybe the best thing is selling only a portion of your future payments so you can continue to receive some regular monthly payments for yourself. Then, as time passes you can always sell more of your payments for more cash. Maybe it is better to sell lump sum payments due in the future, while keeping your monthly payments in place. Plans can be developed to accommodate your needs. Be very, very careful if someone is trying to buy all your payments now! Think about how much cash you really need now and how much money you will continue to need in regular monthly payments.

    4. A Tailored Solution. Does your consultant take the time to fully understand what is needed in order to satisfy your needs? No two people have the same problems, concerns, and anxieties. As a result, no two people’s problems can be solved in exactly the same way. The person you work with should develop a personalized plan; something that addresses your problems and helps you achieve your goals. If a consultant only offers one solution, your choice is either "yes or no." You don’t want a generic "one size fits all" plan. When you are presented with two or three positive options, you can then discuss the pros and cons of each plan. Once you have all of the facts it’s easy to make the right decision and select the plan that is right for you.

    5. Empathy. The best way to understand another person’s needs is to imagine yourself in their shoes. It is hard to properly present a cash payout for your structured settlement without knowing from first-hand experience the problems you are facing now, and the problems you will face in the future. As a parent of a special needs child who has been receiving structured settlement payments for over twenty years I can fully understand and empathize with many claimants’ needs. The consultant you chose should possess that same type of empathy and concern.

    6. Service. Do you feel that your consultant really wants to provide you with the help you need, or do you get the impression that he is just looking to make a commission? There is a lot of work involved in preparing your case and your consultant deserves to be paid. Just make sure you feel right about whom you are doing business with and that they have your best interest at heart. I can’t stress this point enough.

    Is the consultant hidden behind a wall of secretaries, account executives and administrative assistants? Or, is he or she readily available to you by phone, fax, and e-mail? Your case may take months before it is closed and you get the cash. You will have questions about what’s going on, why is it taking so long, and so on. Remember, this procedure of selling your payments is new to you, but your consultant should be willing to hold your hand every step of the way. If your consultant seems bothered by your phone calls, get someone else as fast as possible.

    7. Truth. The truth about getting cash for your future payments is that it will usually take about two to four months for you to get the money. Here’s why. The process involves many steps. Here’s a hypothetical example of a case:

    April 1. - Mary Smith (age 19) called me and said she no longer wanted to receive monthly payments, but wanted cash instead. I asked her to tell me more. She explained that as a child she was involved in an auto accident that left her permanently disabled. She uses a wheelchair, but has fully recovered from all of her other injuries. She wants to go to college but doesn’t have money for tuition. I asked if she was working and she replied that she had a secretarial job but really wanted to become an attorney and specialize in helping accident victims. She was receiving $2,000 per month and the payments would continue until she was 40 years old. I agreed to help her and proceed with her case.

    April 2. - I met with my staff and we designed three plans for her to consider:
    Â Â Â Â Â A. We would offer to purchase $1,000 of her monthly payments now and she would continue to receive $1,000 per month until she was 40 years old.
    Â Â Â Â Â B. We would offer to purchase $1,000 of her monthly payments now, and after college and law school we would purchase another $500 of her monthly payments leaving her to continue to receive $500 per month until age 40.
    Â Â Â Â Â C. We would purchase her entire $2,000 monthly payments now. She would only use what was needed for tuition for college and law school and she would contact a tax and investment professional and would put the remaining money into a low risk investment such as tax-free bonds. She could then use this money to start her law practice in seven years.

    April 5. She talked with her parents and her tax advisor and decided to go with option C. She called me and let me know of her decision.

    April 6. I had my staff prepare the necessary papers and sent her an application by mail for her to sign and return. I also asked her to send me:
    • Completed copy of application;
    • The Annuity Policy
    • The Extended Release/Settlement Agreement
    • A copy of her most recent Annuity Check or Check Stub
    • A copy of front page of most recent tax return
    • Copies of two forms of identification (one must be clear photo I.D.)
    • A copy of Marriage License (if applicable)
    • A copy of Divorce Decree(s)/and property settlement(s) (if applicable)
    • A copy of the Court Judgment (if applicable)
    • Any other important papers related to her Settlement Agreement

    April 12. Once I received this information we sent communication and notices to the insurance company, Assignment Company and attorneys.

    April 15. The attorney in her State petitioned the Court for a hearing date.

    April 18.The attorney received communication from the court that the hearing date had been entered into the court’s calendar for June 10th.

    June 10. Mary was excused from appearing in court and the attorney appeared before the judge and explained the circumstances. The judge agreed that it was in Mary’s best interests for her to receive the money in exchange for the future payments and approved the sale of the payments.

    June 15. Mary received the money via wire transfer into her bank account.
    This is a very simple example, but you can see that the court set the hearing date almost 2 months from the date the attorney applied for a date. There is no way any company or consultant can control or manipulate the court’s calendar. Anyone who says they can is lying, plain and simple. There are many other circumstances that can delay your receiving the money. Make sure that your consultant keeps you fully informed.

    8. Personalized Attention. Does the consultant have a staff that is similarly qualified to cover for him or her when they are out of town? Or, are you relegated to an administrative assistant who only takes messages and tries to relay them to the consultant while he is on the road? Does the consultant have so many clients he or she can't provide you with the personal care and attention you deserve? Or, does he or she limit their services to a few select clients at a time that can then receive the best he or she has to offer? You just don’t want to be another file on someone’s desk.

    As Director of Consumer Education for Novation Capital I occasionally travel, but my clients have access to me at all times. My staff is very qualified and understands each case that I handle. We have regular meetings and discuss the cases that are pending. I insist on these meetings for two main reasons: 1) to make sure that we present the proper plan for my clients, and 2) so that if I am not available or traveling, my clients can get the answer they need immediately. The consultant you choose should have the same type of support system in place for you.

    Warning! Please remember, if someone offers you an amount that seems too good to be true, they are most likely just telling you what you want to hear just to get you to sign on the bottom line. Then as time passes they tell you that the there are reasons they can’t offer the same amount. And they offer you a great deal less.

    If you don’t agree to take less they will stall your case, and if that tactic doesn’t work they will misrepresent your case in court so that the judge won’t approve the sale of your future payments.

    So you decide to go to another consultant and company. However, this time the insurance and assignment company tell the court that you tried this once and it didn’t work so why should they agree to go along with the sale now. And you don’t get your money. My advice: Run; don’t walk, to the nearest exit.

    Closing Thoughts
    There are many other tactics that are used by consultants, and believe me; they are not in your favor at all. My advice is:
    • Obtain the services of a true professional that takes the time to understand you and your problems.
    • Then keep this report in hand while you are interviewing a consultant, discussing your case, and asking about what you can expect from the consultant and the company.
    • Talk to your tax professional and attorney and see what they think.
    • But remember, when it comes down to the bottom line, it’s your decision to make, and that decision could affect the rest of your life.

    Source: SellerAware.org

    Loan

    Lease

    A loan requires the end user to invest a down payment in the equipment. The loan finances the remaining amount. A lease requires no down payment and finances only the value of the equipment expected to be depleted during the lease term. The lessee usually has an option to buy the equipment for its remaining value at the end of the lease.
    A loan usually requires the borrower to pledge other assets for collateral. The leased equipment itself is usually all that is needed to secure a lease transaction.
    A loan usually requires two expenditures during the first payment period; a down payment at the beginning and a loan payment at the end. A lease requires only a lease payment at the beginning of the first payment period which is usually much lower than the down payment.
    The end user bears all the risk of equipment devaluation because of new technology. The end user transfers all risk of obsolescence to the lessors as there is no obligation to own equipment at the end of the lease.
    End users may claim a tax deduction for a portion of the loan payment as interest and for depreciation, which is tied to IRS depreciation schedules. When leases are structured as true leases, the end user may claim the entire lease payment as a tax deduction. The equipment write-off is tied to the lease term, which can be shorter than IRS depreciation schedules, resulting in larger tax deductions each year. The deduction is also the same every year, which simplifies budgeting (equipment financed with a conditional sale lease is treated the same as owned equipment.)
    Financial Accounting Standards require owned equipment to appear as an asset with a corresponding liability on the balance sheet. Leased assets are expensed when the lease is an operating lease. Such assets do not appear on the balance sheet, which can improve financial ratios.
    A larger portion of the financial obligation is paid in today's more expensive dollars. More of the cash flow, especially the option to purchase the equipment, occurs later in the lease term when inflation makes dollars cheaper.

    by Judy Temes of Craines New York Business

    John Arlotta Inc. has designed and sold high-end menswear to stores like Neiman-Marcus since 1985. Despite the recession and the spate of retail bankruptcies, the New York company has been growing steadily.

    Two years ago, however, the bank that helped the $4 million company get on its feet pulled the rug out from under it. John Arlotta's $50,000 working capital line was suddenly terminated, although it had not a single missed payment, credit blemish or even a bad year.

    The company's experience is not at all unfamiliar to small and mid-sized businesses. The credit crunch of the last few years has sharply cut the working capital on which smaller businesses depend to meet expenses such as payroll, rent and utilities, and to survive from one cycle to the next.

    Even now, with commercial banks actively wooing smaller companies (see related story, Page 23), the standards for obtaining a working capital line or short-term loan are so strict, only solid-gold companies need apply. Banks are asking business owners to put up more of their own capital and will lend less against that capital.

    Turned away by Republic

    Manhattan-based Holden Associates Inc. has grown by supplying banks with temporary back-office and systems professionals. But two years ago, when the firm went to Republic National Bank for an extension on its six-figure credit line, the answer was no. "They said we were maxed out based on the ratios," says Barry Hawks, one of three principals.

    It didn't matter that the then $2 million company needed the extra working capital to service new customers, says Mr. Hawks. Neither did its credit record nor the fact that its clients were banks.|

    Based on its formulas, Republic would extend to Holden only what the company's owners had invested themselves. Three other banks concurred that Holden could borrow no more.

    Bankers say the standards for working capital have not changed, and that the drop in loans has been a result of slack demand. With the recovery gaining momentum, "you see companies doing better, which makes it easier to lend," says Morey Danon, an executive vice president at National Westminster Bank USA in New York.

    Still, even with interest rates at their lowest in 20 years, NatWest finds itself having to give away laptop computers to attract customers for fixed-rate loans of $2 million or more. The promotion is one of the steps banks are taking to win back the many customers that in the last few years have defected to finance companies, factors and other asset-based lenders.

    Alternative finance companies in Manhattan such as Access Capital Inc. continue to grow despite charging significantly higher interest. Century Business Credit Corp. increased its volume 18% in 1992 to $1.2 billion. CIT Group/Credit Finance has seen its volume grow 10% a year in recent years.

    These alternative sources of working capital can often be significantly more costly than bank financing. Banks charge 1% to 2% above prime, but finance companies charge 2.5% and more.

    Terms, however, are much less stringent. There are no personal guarantees and no predetermined ratios spelling out what a company can borrow based on its equity or history. These financiers look not so much to the company's record, which may be spotty due to the recession, but to the credit-worthiness of its accounts receivable.

    A company can sell up to $5 million in receivables, 80% of which it can receive a few days after the goods are ready for sale. The balance is sent to the company when the invoice is paid. Access takes 2% to 5% of the value of the receivables as its fee, depending on the quality of the company's customers and the length of time they take to pay.

    This is expensive credit and many firms use Access only for bridge capital. But for companies like Holden the extra cost is outweighed by the extra profit generated from a company that's doubled its size in two years.

    "This has enabled me to hire the people to build the sales," says Mr. Hawks. "It's not a long-term solution for working capital, but without it, we could still be stuck doing $2 million a year."

    Business Funding

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    Every business needs money at one time or another. The process of obtaining financing can be daunting and the chances of success limited if it is approached in a disorganized or haphazard way. Lenders are conservative critters; however it is important to understand that it is their job to lend money, and they are happy to do so if their risk is reasonable. The chances of obtaining a business loan are greatly enhanced if you adhere to the following procedure.

    KNOW WHAT YOU NEED
    Understand how you intend to use business financing, how much funding you need and how you intend to repay the loan. Be able to communicate this clearly and confidently with prospective lenders.

    UNDERSTAND YOUR CURRENT SITUATION
    If you are an existing business, are you profitable, and does your balance sheet have positive equity? What does your credit look like? Have a clear understanding of any existing liens and lien priority. Know your credit score and answers to derogatory credit issues (liens, judgments, slow pays, collection actions) before presenting your application. If there have been credit, profitability or equity issues in the past, present a credible argument as to why these issues have been resolved or how this loan will change this situation.

    KNOW YOUR OPTIONS
    All lending is critiqued from a risk standpoint. Certain levels of risk will qualify for certain types of financing. The level of risk is reflected in the cost of the financing. The more secure a lender's money is, the less it costs you. Get creative. Financing takes many forms, and is available from a wide range of sources.

    Standard (conventional) bank financing usually offers the best interest rates, however it is the most difficult to qualify for. These loans appear as a long-term liability on the business balance sheet. Conventional loans are available through banks and other lending institutions and can be guaranteed in whole or part by the SBA.

    Revolving Lines of Credit are another form of business financing. This type of loan is secured by accounts receivable or inventory and is available from a bank or an Asset Based Lender. Credit cards are a form of revolving line of credit. An Asset-Based Line of Credit (ABL) is considered alternative financing and is available to borrowers who are too highly leveraged for a bank.

    Real Property, Equipment Leases and Notes are another form of business financing. In these contracts the collateral for the loan is the property or equipment itself. When there is no outstanding balance owed on the asset, the property or equipment could be used in a Sale-Leaseback transaction. Here, the asset is sold to the lender for cash, and the borrower leases the property from the lender until the loan is paid.

    Landlords can be a source of financing. It is not uncommon for a landlord to contribute dollars or rent concessions to the development of a tenant’s space. For this loan, the landlord may require a Percentage of Gross Sales Clause in the lease as repayment. Extended vendor terms for purchase of product may provide short-term operating capital loans.

    In the event that additional credit strength is required, loan guarantors or borrowing someone’s credit may help the borrower qualify for less expensive financing. Be flexible. Your final package may be comprised of several lending solutions

    PRESENT A CLEAR AND UNDERSTANDABLE PROPOSAL
    Lenders need to know who you are personally, professionally and financially. The lender needs to evaluate Income Tax returns (Corporate and Personal), financial statements (income statement and balance sheet) and a cash flow projection. The balance sheet has to look a specific way. The Current Ratio should be at least 1:1, and the Debt to Equity Ratio should be at least 4:1.

    Be specific as to how the money is going to be used and how it will be paid back. Lenders want to know what is securing their debt. Lenders evaluate the quality of the collateral, and want to insure that it is adequate to secure the debt in case of default. A secondary source of repayment is required prior to granting standard financing. The personal guarantee of the borrower is often required. In some situations, a lender may seek secondary collateral. Secondary collateral is simply some other asset in which you have equity or ownership, i.e. equipment, property, inventory, notes.

    Business funding is not difficult if the borrower is creative and realistic. Know how much money you need and how you are going to use it. Be prepared to defend your needs and anticipate the lender’s questions. In the event that a lender cannot grant your request, perhaps it is the way a loan is packaged. Find a lender who is willing to make recommendations that will help you find financing. A good lender will tell you quickly if they can help you or not. If an intelligent and organized package is presented, a timely response is warranted.

    Source: Written by Monte Zwang of Steele Development Corporation.

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