Confession of Judgment in Merchant Cash Advance (MCA) Agreements: What You Need to Know
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Merchant cash advances offer fast capital for small businesses, but they often come with aggressive repayment terms and hidden legal traps. One of the most controversial and dangerous provisions is the confession of judgment, or COJ. This clause can give a funder the power to obtain a court judgment and begin collections without your knowledge or any court hearing.
In this article, we’ll break down how confessions of judgment work in the context of MCAs, the legal risks they create for business owners, recent changes in state laws, and what you can do to protect yourself.
What Is a Confession of Judgment (COJ)?
A confession of judgment is a legal agreement embedded in some contracts most commonly in merchant cash advance deals that allows one party (typically the funder) to obtain a judgment against the other party (the business owner or borrower) without a trial or notice.
Key Features:
- The borrower pre-authorizes a judgment
- The funder files an affidavit of default and judgment
- No court hearing is required
- The court may immediately approve the judgment
- The funder can start collections, bank levies, or asset seizures
Why Are Confessions of Judgment Used in MCA Contracts?
Merchant cash advance funders operate in a high-risk lending space. They often deal with businesses that have poor credit or unstable revenue. To protect themselves, funders include confessions of judgment to ensure swift enforcement if the borrower defaults.
From the funder's perspective, COJs:
- Minimize legal delays
- Avoid expensive lawsuits
- Reduce the chance the borrower hides or transfers assets
But for business owners, the risk is enormous you’re effectively giving up your right to defend yourself in court.
How COJs Work in Practice
Here’s how a confession of judgment might play out:
- You sign an MCA agreement that includes a COJ.
- You fall behind on payments either due to cash flow issues or because the funder claims a technical breach.
- Without notifying you, the funder files the signed COJ and an affidavit stating you’ve defaulted.
- A court enters judgment immediately or within days.
- Your bank accounts are frozen, and your business assets may be seized.
In many cases, you won’t know about the judgment until your accounts are frozen or your attorney calls.
Where Are Confessions of Judgment Legal?
While COJs have been banned or restricted in many states for consumer debts, they are still used in commercial finance, especially in states like New York.
Legal Status by Jurisdiction:
| State | Status of COJs in Commercial Contracts |
|---|---|
| New York | Legal for out-of-state businesses |
| California | Generally prohibited |
| Florida | Limited use, court discretion required |
| Illinois | Heavily restricted |
| Texas | Banned for commercial use |
In 2019, New York passed legislation banning COJs for non-New York businesses, but the practice continues through venue manipulation or alternative legal pathways.
Are Confessions of Judgment Enforceable?
Confessions of judgment are enforceable in many states unless specifically prohibited. Courts in states like New York may recognize COJs even if you’re located elsewhere, depending on where the agreement was signed or filed.
Enforcement actions may include:
- Bank account levies
- Property liens
- Sheriff’s seizures of business assets
- Wage garnishment, in rare cases where the owner gave a personal guarantee
Legal Challenges to Confession of Judgment
If a funder enforces a COJ against your business, you’re not necessarily out of options. An experienced attorney may be able to vacate the judgment based on:
- Lack of jurisdiction
- Fraud or misrepresentation
- Improper service
- Unconscionable contract terms
In some cases, courts have ruled COJs unconscionable if they were hidden in fine print or signed under duress.
How to Protect Yourself from COJs in MCAs
1. Read Every Contract Carefully
Never sign an MCA agreement without reviewing every clause. If you see the words “confession of judgment,” be extremely cautious.
2. Consult a Business Attorney
A qualified attorney can:
- Spot problematic clauses like COJs
- Negotiate terms with the funder
- Suggest alternative financing options
3. Avoid MCA Lenders That Require COJs
Plenty of alternative financing options do not require you to give up your legal rights. Explore SBA loans, credit lines, or revenue-based financing without COJs.
4. Stay Ahead of Cash Flow Problems
Many defaults are avoidable with proper forecasting. If you’re struggling, reach out to the funder early to discuss options before they escalate to legal action.
What to Do If a COJ Has Already Been Filed
1. Act Immediately
Time is critical. If your accounts are frozen or a judgment has been entered, you must act fast to stop further enforcement.
2. Hire an MCA Defense Attorney
You need someone who understands both the law and the tactics used by MCA funders. An attorney may be able to:
- File a motion to vacate the judgment
- Challenge jurisdiction
- Negotiate a settlement
- File bankruptcy, if necessary
3. Consider Settlement or Refinance
In some cases, you may be able to refinance the debt or settle for less than the judgment amount especially if legal errors occurred.
Conclusion
A confession of judgment in a merchant cash advance agreement is one of the most aggressive legal tools a lender can use—and one of the riskiest clauses a business owner can agree to. While they may seem like boilerplate, these clauses can wipe out your accounts, seize your assets, and cripple your operations overnight.
If you’re considering an MCA or facing a judgment based on a COJ, contact a qualified attorney right away. The sooner you act, the better your chance of protecting your rights and business.
Frequently Asked Questions (FAQ)
1. What is a confession of judgment in an MCA?
A confession of judgment in a merchant cash advance (MCA) allows the funder to obtain a court judgment against the borrower without any prior notice or court hearing. It effectively lets the funder bypass the legal process and begin collecting on the debt—such as freezing bank accounts or seizing assets—immediately after a default.
2. Are confessions of judgment legal?
Yes, but only in certain states and typically only for commercial transactions. While many states have banned confessions of judgment in consumer contracts, they remain legal in commercial contexts in places like New York, especially when used against out-of-state businesses.
3. Can I fight a confession of judgment?
In many cases, yes. A skilled attorney can file a motion to vacate the judgment, especially if there are grounds such as lack of jurisdiction, fraud, improper service, or procedural errors. Time is critical—it's best to take action as soon as you learn the judgment was entered.
4. What are the risks of signing a COJ?
The biggest risk is that you give up your right to defend yourself in court. If you default, the funder can immediately enter a judgment against you, often without your knowledge. This can lead to bank account levies, asset seizures, and serious disruption to your business operations.
5. How can I avoid COJs in merchant cash advances?
Start by carefully reviewing every financing agreement. If you see a confession of judgment clause, think twice before signing. Work with a business attorney to negotiate or find safer funding options. Alternatives like SBA loans, lines of credit, or invoice factoring don’t typically involve COJs.
Need legal advice about an MCA or confession of judgment?
J. Singer Law Group helps businesses fight back against predatory lenders.
Contact us today for a free consultation and take control of your legal rights before it’s too late.
