Understanding UCC 9-404: how it pertains to claims and the right to offset

If you've ever worked with/for a factoring company at any capacity, you may have heard a hot headed portfolio manager throw out the term "UCC 9-404 - No right to offset." All to often this portion of the Uniform Commercial Code is loosely interpreted incorrectly, and used to protect poor verification and lazy due diligence on the part of the accounts receivable factoring company.

Usually, 9-404 is wrongly interpreted to mean that if a factor verifies an invoice with a debtor and specifically inquires about any exisiting claims regarding this specific invoice - anything that could potentially offset the payment back to the factor - and they are told there are no claims, then the invoice verified is free and clear of any claims that the debtor may have on file. This is close - but also dangerously far away.

Here is the actual UCC 9-404.

9-404. RIGHTS ACQUIRED BY ASSIGNEE; CLAIMS AND DEFENSES AGAINST ASSIGNEE.

(a) [Assignee's rights subject to terms, claims, and defenses; exceptions.]

Unless an account debtor has made an enforceable agreement not to assert defenses or claims, and subject to subsections (b) through (e), the rights of an assignee are subject to:

(1) all terms of the agreement between the account debtor and assignor and any defense or claim in recoupment arising from the transaction that gave rise to the contract; and

(2) any other defense or claim of the account debtor against the assignor which accrues before the account debtor receives a notification of the assignment authenticated by the assignor or the assignee.

The portion that most concerns us in this case is section (a). The attourney for my
former factoring company explained this to me to mean that the verification regarding claims must be done at the time the debtor is first notified of the assignment. This means that unless during the first call the factor makes to the debtor, he asks an authorized employee regarding any existing claims, that debtor will always have the right to offset factored invoices for any previously existing claims. Whether the claims pertain to factored invoices or not.

Currently Reading: The Law of Contracts and the Uniform Commercial Code 

Buyout Process - how to calculate the buyout figure

Are you moving from factoring company to another? If so, you may find you and your business may be caught up in the tedious process of a Buyout. A buyout occurs whenever one company has a balance owed on accounts receivables they purchased and are the current UCC-1 lien holder on the business in question. There are many steps involved and over the next few weeks, we'll take a look at them all. This week, we'll discuss how to calculate the buyout figure.

Simply put, the buyout figure is the total amount owed to the UCC-1 lien holder. Here's how that is reached:

Unpaid Invoices + Fees Owed - Reserves = Buyout Figure

Still unclear? Understandably so. Let's work it out with an assumed fee structure and totals.

Lets say that your fee structure is a 90% advance with a flat 5% fee for invoices factored month to month. Your current outstanding balance in accounts receivables factored for the month total $85,000.

1. Total A/R - $85,000

5% of  $85,000 is $4,250. This would be your fees owed. If you did not give written notice prior to leaving, you may also owe Early Termination fees, so check with your factor.

2. Total Fees Owed - $4,250

Your reserves - which should be roughly 5% of your total open balance depending on how your factor releases reserves - can vary greatly based on many variables, lets just say you have $5,000 in reserves.

3. Total Reserves $5,000

The final result would look something like this:

$85,000 A/R
$4,250 Fees
(5,000) Reserves

Buyout Figure = 84,250.00

In the next week of this series, we'll look at how the new factoring company verifies the already outstanding invoices and reach this buyout figure for your business.

How to ask for early reserve release

Remember the old adage, "It's not what you ask, but how you ask it?" This also applies to requests you make to your factoring company. Most likely, the payment you get for the invoices you sell to your factor are being advanced to you in part. Anywhere from 85 to 97 percent would be typical. The remaining amount is held in a reserve account until the invoice is paid. Some factoring companies may release reserves as invoices are paid, but release reserves only once monthly.

In the event that you find yourself  in need of funds and do not yet have any new invoices ready to send in to your factoring company, all is not lost. The two most common reasons I was given for needing an early reserve release were fuel for the trucks or needing to meet payroll. When we got pleas such as is, we almost  always gave in.  much more went into the decision to hold or release those funds early. Try to keep in mind that factor relies solely on this reserve as a safety net should any of your customers not pony up the dough. So before you make your request, here is the information you will want to have at the ready:

1. Total outstanding A/R compared to total A/R over 60 days - Many factors have a 90 day recourse rule. If an invoice is not paid back within 90 days by your customer, you buy it back with that reserve. If your portfolio is upside down (more over 60 than current) they may hold that reserve indefinately.
2. On average, are most  of your customers paying in a timely manner and do they have a good relationship established with your factoring company?
3. Do you have any upcoming orders that you will be planning to factor? If so, your factoring company may be take that into consideration when making their decision.

In my old office, the Portflio Manager often based his decisions on whatever his mood was for the day. If you encounter this type of personality, keeping your cool and having a better understanding of not only the best explanations to give to backup your request, but also the information as to why would not put the factor in jeapordy of eating the costs of any unpaid fees for invoices.