The Factor Guru

Tips on accounts receivable financing and business practices.

Posts Tagged Monitoring

A Look Back and Ahead

Mar 3

Posted by Gen Merritt in Operations | Comments off

2009 was a tough year. That is all I hear. For the existing portfolios, revenues were down for the most part last year; some publications have noted a 20% to 40% downturn last year resulting from the economic decline. Note that much of this may be dependent on the industry in which a factor may have a niche. Factors have been increasing their monitoring procedures to stay more in tune with their clients’ businesses and collateral performance. More research and credit limit adherence is being required for debtor credit. Think about what it says when bankruptcies increased 25% to 50% over 2008; tax lien filings increased over 25% from the prior year.

For new business, many of us have looked at more and more prospects to ultimately only fund the same number of deals. Issues arising from the economy last year have spurred additional due diligence and research on these prospective clients to ensure a long standing relationship will exist, or can exist in the first place. The question that always comes to mind: can you get out tomorrow?

So, where does that leave 2010? Well, we are well into the first quarter and business opportunities have been increasing, provided you have the capital available… but that is another discussion for another day.

By now, you hopefully have already evaluated your portfolios to determine areas of potential loss and/or weakness. You have also by now identified areas of improvement in your operations and portfolio management to help ensure proper checks and balances internally. For an extreme example, does your account manager handle the verifications, daily fundings, collections, and payment application for their clients? How would you know if something arose that should be a red flag? Maintaining appropriate checks and balances can be critical in today’s environment. Establishing certain communication protocols both internally and externally can prove to be invaluable within an operations department.

The recent increase in deal flow should, however, not equate to reducing the recently increased monitoring and account management standards. This year will be just as challenging for many as last year. Time and time again, I hear that factors are going back to the basics: maintaining verification and collection efforts, monitoring collateral trends in purchases and cash  management, reviewing and adhering to debtor credit limits, and understanding the billing of the client and what they do (i.e., industry in which they operate, etc). Factors are also paying more attention to early warning signs that may be indicators for potential concerns.

All I can say is be prepared… be proactive and not reactive, as they say. Surprises are not always a good thing.

Wishing You Continued Success. The Factor Guru.

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FAQs: Construction Receivables

Aug 22

Posted by Gen Merritt in Operations | No Comments

2ebf976ad673655aFactoring a construction business can pose additional risks. It is important to understand the billing processes and any potential subcontractor liens that may arise and interfere with payments on factored invoices. The discussion below provides some key items to consider, excluding bonded jobs.

The Underlying Agreement. Clients operating in the construction industry may have and typically do have contracts or master servicing agreements for each job being performed. These contracts typically include the work to be done; assignment language; contact information; billing protocols and requirements for payments; subcontractor payment and lien representations, insurance standards, and more…

Each contract should be reviewed, especially if the Client (for this example, a subcontractor on the job) is working on a longer term project wherein they bill monthly (generally on the 20th to 25th day of the month). Although the work has been performed for that month, the entire project has not been completed. So, yes, this would be progressive billing.

Hint: Jobs should be monitored individually, when possible, to follow when the job is completed and that the Client doesn’t invoice more than the contract amount without getting that overage approved in a change order, or in writing.  Especially when amounts billed are greater than the contract amount, change orders should exist. Additional billings that arise due to “verbal” change orders or agreements generally also come with payment problems attached.

Payment Requirements. Contracts may also dictate how the Client should bill invoices and may even include exhibits of specific forms to use for such billing (i.e., AIA forms for Certificate of Payments and Schedule of Values, etc). With these invoices, the Client may need to supply their customer (the Debtor) a release/lien waiver affirming that all subcontractors used on the project (hired by the Client to do work for them) have been paid.

Subcontractor Payments. Because of how the construction industry operates, another element to consider is where the Client stands in the payment chain; how far are they removed from the ultimate payor (the owner). And, how many other subcontractors have they (the Client) hired to do work for them?  Why does this matter? These subcontractors have rights to monies owed… their rights can supersede that of a factor or lender. They are not the same as suppliers on a manufacturing company’s payables listing.  Don’t think that just because you are funding a subcontractor that you are immune to these issues. Knowing that these subcontractors hired by your Client have been paid may be critical in the collection of receivables.

What happens if one of these subcontractors has not been paid? If a general contractor (the Debtor) hires the Client for a $100,000 contract to provide landscaping work and that Client then orders $20,000 of sod to be delivered to the job site, that sod supplier needs to be paid.  If the Client does not pay the supplier, the supplier may have the right to lien that job thereby affecting payments on that job from the Debtor to the Client.

This means that when the Debtor goes to pay the invoice, they may not do so right away, as they probably would have received a notice of the lien being or to be filed. So, first, that payment is at minimum going to be delayed. Secondly, the Debtor will more than likely make a payment of $20,000 to the supplier and then pay the rest of the monies to the Client (or the factor, as applicable).

This doesn’t sound too bad if the factoring company only has a 65% advance rate. However, what if the amounts owed to the subcontractor/supplier were 40% (or $40,000) and what if the factor had advanced 80% (or $80,000) to the Client. The factor would have advanced $80,000 to the Client and would only receive $60,000 back from the Debtor.

Know the Law. Each state is different but all tend to operate much the same in that if companies have performed work (labor) or delivered materials to or hauled materials from a job site, those companies are to be paid. There are various notice periods for filing liens and requirements to adhere to during this process. You can usually research your state’s lien and bond laws online, or contact your legal counsel for clarification. These differences will dictate notice periods and eligibility. They will also highlight your risks should you be factoring a Client in this industry.

As an example, a fourth tier sub may not have the right to lien a job whereas a second or third sub tier would.  In Texas, certain oilfield services industries may have up to 180 days to file a lien if payment has not occurred, whereas others may only have anywhere up to 90 days, depending on the type of job and where the Client stands in the payment chain. Again, each state may be different.

I know I can go on forever about liens, subcontractors and other nuances and examples within the construction industry… but this is a blog… not a book.

So, to wrap up, I’ll just list a few other items to watch for when factoring construction receivables:

Retainage: this is typically an amount held back (generally 5% to 10%) from each billing until the job has been completed. I mean the entire job… not just your Client’s portion. These amounts tend to take longer to pay or may not be paid depending on if other parties are owed monies, or if additional charges or fees need to be assessed. In some cases where subcontractors have not been paid during the job, these funds will be used to pay for those outstanding amounts. Because of this, many factors or lenders will not allow these invoices to be eligible for purchase.

Mobilization: billings for work ‘to be done’ on a project when no work has actually been done (yet). The Client may bill Mobilization to ‘mobilize’ their crews, purchase supplies, etc. If the factor advances on this type of invoice, it is important to understand that no work has actually been performed, some would argue this is much like purchase order financing. Look at the contract or call the Debtor to see if they will pay for such invoices in the event the project is put on hold or the work never starts.

Until the next time. Wishing You Success. The Factor Guru.

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Understanding the Story… “What If” a guest blog by Darla Auchinachie

Jul 9

Posted by Darla in Underwriting | 1 Comment

I recently became involved in underwriting an application for a factoring facility that brought me back to a session I co-instructed at the 2004 IFA Annual Factoring Conference. The title for that session: “Understanding the Paper you are Buying.” One of the ideas presented focused on how cutting corners in the due diligence process may lead to disastrous results. That was true five years ago, and it is even more so today.

It’s been said that it is very difficult to correct a bad underwriting decision, and anyone that has been tasked with a client “work-out” can echo that sentiment. The role of a factoring credit underwriter is to try to accurately predict that if a prospect is accepted for financing then that relationship will perform as expected – and to structure the facility in such a way that monitoring that performance can be effective. After the underwriter has recommended the prospect for financing, it becomes operation’s responsibility to employ the necessary procedures to protect and preserve the factor’s capital.

When you think about it, initial underwriting is a really tough job; even after you get past all the obstacles we understand academically, you still have to rely upon what your intuition tells you. And, after that, you have to determine if you are being too conservative or not conservative enough.

So, back to my original story about this application package, it was neat… too neat. Robust financials, plausible agings, strong guarantors, dare I say it – a factor’s dream. Of course there were issues a seasoned factor would spot such as the nature of the receivables having a “little hair on them” and the customers, while nicely spread out and quasi-governmental, still thin on the credit side. Of particular interest was the volume – it was substantial for the small non-traditional market. Who wouldn’t love funding a new prospect with a receivable base of several million, especially if it could be done for a desirable rate?

Personally, I wasn’t comfortable with the deal. It wasn’t necessarily the receivables themselves; it was more about the “Conditions” of the deal – Conditions is one of those “C’s” of credit we should never forget when underwriting. You see, the company had experienced tremendous growth in the past fiscal year, and by tremendous growth, I mean well over a 150% increase in revenues. But wait…

In this economy today, what industry could possibly support that kind of growth? I’m not talking about a startup company whose revenues might be expected to grow at a steep pace. This was a company that had been around for decades and had never experienced such a sharp increase in sales.

Another interesting Condition was that the prospect already had a factor funding their receivables. Usually this is not a cause for concern. In fact, it’s quite common to see an applicant who is already factoring. As part of the initial qualifying stage, the business development officer contacted the current factor and was given a glowing recommendation: the factor loved their client, had experienced zero dilution over the course of a multi-year relationship and wished they could keep funding the client. It was the client’s growth that had outstripped the factor’s ability to fund.

However, here is where the story becomes a little more interesting… 442f0b535d06bd4e2

The prospect urged the incoming factor to “rush” funding. They needed the capital to continue operating during this explosive growth cycle. One should ask, “Why?”

Well, common sense and experience were telling me something was not quite right: the recent growth, the current factor volunteering there had never been any dilution over the course of a long funding relationship, and now the company needed to rush the initial funding for a payoff. Why was a participation arrangement not being considered or requested?

I know many factoring companies and believe that most have very capable and honest folks, but this factor in particular was relatively new to the industry and now had a several million dollar deal that had outgrown them. I’d never met this factor at any industry event; I even called other factors to see if they had any experience or knowledge of this financial source – no one did. Because of this, I recommended that my client (remember the one who originally engaged me to review the application) fully and strongly verify the receivable base before getting too far down the road. My client asked me, “Why shouldn’t we rely upon the existing factor’s story and records?”. And, this is what brought me back to that class in 2004…

It was after that session when a factor approached me stating they wished they would have attended this course before taking on a rather large client. They had relied upon another factor’s story, similar to the one described above. To their detriment, they funded the prospect’s receivables. You see, the incoming factor didn’t have a large enough staff to fully verify the invoices, and the payoff was also a “rush” situation. As it turned out, there was not enough true collateral. The incoming factor had wanted to appease the client and get the deal done. They had “assumed” the information received from the prior factor was accurate. Therefore, the incoming factor only made a few random calls instead of following their normal procedure of verifying a large percentage of the collateral.

I know several factors who would say they would never do such a thing: fund a large client without full verification – but what about those newer factoring companies? We’ve seen the number of factors steadily increasing over the years, and yet many of these businesses may not survive. I think this story provides a good reason why newer factoring companies tend to fail. They do not understand (or believe) that fraud exists, that there are people waiting for opportunities to intentionally defraud factors or lenders out of their capital. Further, they believe they can correct their cutting corners on the initial funding by performing post funding verifications. Really? I think if this is the plan, you will just know sooner that you have a fraud. Once the money is sent… it may really be gone.

Yes, it is important to talk to the prior factor and hear their story. However, you should not solely rely on what they say… especially where your interests are not the same. Perform your own due diligence.

Newer factors might not have experienced a fraud; they may assume the current factor has strong procedures in place that mirror their own. But, what if the current factor hasn’t figured out what they have on the books isn’t any good? Or, what if the current factor knows but is hoping someone takes them out of the deal? And then, what if the incoming factor just doesn’t have sufficient resources or time to verify the accounts? Well, that sounds like just too many “What if’s?”

Be aware of what your intuition tells you. Or as my friends in Texas say, “Go with your gut feel.” Business is tough for everyone, and we all want to fund new deals. But, just because you catch a nice fish on your line doesn’t mean you should take it home and fry it up – sometimes catch and release may be better off for the longevity of your factoring company.

Oh, and just in case you were wondering about that deal I was engaged to review… the factor did start calling to verify invoices before they funded even with the glowing recommendation from the prior factor. The result: Declined. While I won’t go into great detail, remember that a factor’s best friend can be the Internet and that searches and reverse phone number searches on customers can be easily checked.

Until the next time…

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Missing Early Warning Signs May Be Hazardous To Your Business

May 15

Posted by Gen Merritt in Operations | No Comments

 

9f7d7e4213bb1a961Changes in a company’s performance or within their business may help identify Early Warning Signs before a potential problem occurs. Knowing what to watch for can help. Here are a few more signs and ‘changes’ you may want to be on the lookout for…

Management changes or high employee turnover exists: The question to ask is why? Are there other indicators within the company or the company performance? What is the succession plan and can the business operate effectively without that key employee or manager? What affect will their absence have on the business’s ability to provide you information? Is there a problem in the business itself that would cause management or good employees to leave? Will this change affect your collateral position?

Wiring instructions change: When a company becomes overdrawn on their account, garnishments occur, their bank begins paying down other bank debts from funds received, or other changes, the business may establish another banking relationship. Companies do not normally change their operating account without a good reason. And, I have experienced other cases where the company begins asking for checks to be issued instead of their traditional wires. Again, this is a change. Therefore, this could be a red flag as well; where is that money being deposited now anyhow? Do you get bank statements on a regular basis? Is the money staying in the business?

Payment patterns from customers (debtors) change: This may be a sign of credit deterioration in the debtor, pre-billing or overbilling by a Client, etc. When a customer has always paid their invoices at 40 days, there should be a reason that an invoice remains open at 75 days. Has the approval process changed, is there paperwork that is missing to authorize a release of that check, etc. Do you understand the debtors billing and ultimate payment process? Performing verification and collection calls on purchased invoices will help identify potential problems before they occur. One thing to remember: customers (debtors) do not typically change their payment patterns overnight.

Vendors start requiring shorter terms, cash on delivery, or post dated checks: When was the last time you received an updated accounts payable aging? When cash is running tight, companies may rely on their vendors for an additional source of working capital. However, at some point, this money trail could end. Vendors tend to have closer connections with the company and in their industry than you may have; Pay attention when those same vendors suspect financial distress within your Client. (Oh, and, start requesting and reviewing those payable listings if you are not already…).   

If you begin to see one of these situations occurring, this does not mean you need to over-react. However, you do need to act. Understanding the reasons behind these occurrences is essential. You can’t fix what you don’t know.

Identifying Early Warning Signs can help eliminate or mitigate potential losses before they occur. Dealing with concerns quickly can only help your collateral position as a factor. Should an issue exist, more than likely your Client’s business has already been impacted. Don’t let their problems also become hazardous to your business. Watch for Early Warning Signs.  

Wishing You Continued Success. The Factor 

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More on Payroll Taxes

Oct 19

Posted by Gen Merritt in Accounting, IRS Information, Operations | No Comments

Getting back to a prior question… “Why are payroll taxes important?”

Delinquent taxes and IRS liens can be very disruptive to businesses and to lenders/finance companies. If companies are unsure how to calculate these taxes or what effect delinquent taxes may have on a business, visit the IRS Payroll Taxes Educational Module  and other information available from the IRS at www.irs.gov. Sometimes, when working capital becomes tight, the last bill to be paid is usually the payroll tax bill due the IRS.

Once delinquent and should such taxes remain unpaid and continue being past due, penalties are assessed. Eventually, a Federal Tax Lien (FTL) would be placed on the business. Many times, the lien filing date is for a period from up to two or three years ago.  The tax period will be reflected on the lien filing.  Any tax periods since that date would need to be evaluated to see how far behind a company truly has become on their taxes. 

When a Federal Tax Lien (FTL) is filed, it is a negative item on the credit bureau report of the company.  It may also result in creditors calling in their notes as they become aware of the FTL.  The FTL generally becomes the most senior claim against the company’s (or debtor when referring to UCC and liens) assets with the exception of first mortgage holders who have properly filed financing documents. The FTL may also displace the primary security position of factoring firms lending on accounts receivable and bank revolving lines of credit 45 days after filing (each situation is unique and must be considered on individual circumstances). Certain claims may trump an FTL such as legitimate mechanic’s liens, local taxes, and perfected landlord liens.

In some jurisdictions, local law provides for separate filing of liens for real property and personal property. In that case, the IRS may file two identical liens, one under personal property records and one under real property records. It is important to note that the IRS does not necessarily have to file under the exact legal name of the corporation and may file under a ‘variety’ of the name.

The FTL is the basis for IRS legal authority to foreclose on debtor assets by conducting a seizure. Since the IRS Reform Act of 1998, seizures by IRS Revenue Officers have dropped dramatically. The lien is not to be confused with an IRS levy. The IRS can levy on a debtor taxpayer’s bank accounts or wages without a FTL. The IRS only needs a valid assessment and must have served legal notice in the form of a certified mail letter to the company’s last known address 30 days prior to levy. However, often the IRS has filed an FTL before levy action even though it is not required.

When a FTL occurs, the lien must be resolved.  This is not just for the business owner themselves, as the IRS will eventually seek collection from the customers of the business as mentioned previously, but also for any secured lender/commercial finance company.  Again in the case of the factoring company, the IRS will ‘prime’ the liens in place.  The factor will have 45 days from the earlier of their discovering the lien or from the date of the filing to essentially collect out of the funds exposed on the assets purchased.  Any monies sent to the company after those dates are subject to the IRS lien filing. 

This does not affect monies already sent to a company (i.e., a term loan based on equipment or real estate whereby the funds were paid up front and the payments are amortized over a set period of time).  However, in the case of a line of credit or factoring where new funds are being paid out while collections are being paid, that lien position would be critical.

This can become a concern for factors and lenders. Resolution alternatives are available. We will address those in a future posting. Until then, monitoring these taxes on an ongoing basis can be critical to a factoring company.

So, until the next time, happy reading…

The Factor Guru

 

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