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Confession of Judgment

A confession of judgment allows a lender to garnish a defendant’s business bank account or seize property in the event of a loan default...


WC Team
WC Team
August 16, 2020

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Confession of judgment is a legal term that refers to a type of contract in which a defendant agrees in advance to allow the plaintiff enter a judgment against him.


Table of Contents

What is a Judgment
How does a Confession of Judgment Affect Business Owners
Why do Merchant Cash Advance Lenders use Confession of Judgment
Are Confessions of Judgment Enforceable in New York?
Are Confessions of Judgment Enforceable in California?
How to Avoid Signing a Confession of Judgment
Did I Sign a Confession of Judgment
Which Small Business Lenders Require Confessions of Judgment?
KEY TAKEAWAYS

What is a Judgment


A judgment is a court order that is a decision of a lawsuit. In debt collection matters, the judge may award the plaintiff, a debt collector or the original creditor a judgment against the debtor.

How does a Confession of Judgment Affect Business Owners


As a business owner, if you sign a confession of judgment and default on a loan or merchant cash advance, you are likely to have the judgement entered against you for the full amount claimed in the lawsuit. By utilizing the confession of judgment, the lender is able to garnish the debtor’s bank account and seize any unencumbered assets. While a confession of judgment is a tool often used in legal proceedings, it is oftentimes leveraged by lenders who cater to bad credit businesses.

Why do Merchant Cash Advance Lenders use Confession of Judgment


Although confessions of judgment have been for decades, it remains one of the most powerful weapons in a merchant cash advance lender’s arsenal simply because it fast tracks the collections process. Often, a judgment is entered on the same day that the complaint for confession of judgment is filed with the courts. That judgment is then recorded in any county in which the debtor may have a bank account or real estate. Because no notice is required, a summons served on the debtor isn’t required by law.

Are Confessions of Judgment Enforceable in New York?


Effective August 30, 2019, confessions of judgment executed after that date by lenders and debtors outside of the state are no longer enforceable. The New York Legislature amended the statute “to remedy abuses in the use of confessions of judgment by creditors against out-of-state debtors.”

Are Confessions of Judgment Enforceable in California?


First, in order for a confession of judgment to be enforceable, an independent attorney must sign the confession. This is required since the defendant is waiving his or her right to trial by jury.

In California, the courts do not allow such waiver without advice of counsel. Furthermore, counsel for the plaintiff cannot also be the counsel for the defendant, as that would present a conflict of interest scenario. In other words, should you not have representation and still sign a lender’s confession of judgment, a confession of judgment cannot be entered.

However, assuming that the confession is properly executed, it is an immediate judgment once filed with the court and therefore allows the plaintiff to use all tools for collection.

How to Avoid Signing a Confession of Judgment


In the same way that prenuptial agreements are executed in advance of a divorce, a confession of judgment is executed prior to a loan or a merchant cash advance’s default. As mentioned earlier in this article, confessions of judgment are most notably used by lower-tier lenders who have ample reason to believe that the debtor may have difficulty paying back back the loan or merchant cash advance.

Since an executed confession of judgment gives your lender a de facto default judgment you may want to factor this into your decision to execute the business loan or merchant cash advance contract.

Did I Sign a Confession of Judgment


If you’ve signed a lender’s confession of judgment, you may have options. Though the courts have ruled that such a process constitutes a defendant waiving their Constitutional rights, namely their right to due process, there are strict requirements in order for the confession of judgment to be enforceable.

Which Small Business Lenders Require Confessions of Judgment?


At the time of this article’s publication, the only small business lender that still requires a confession of judgment was Yellowstone Capital Partners also known as Fundry

KEY TAKEAWAYS



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