Factoring Funding

What Every Freight Broker Should Know About Factoring

Invoice factoring has been around for thousands of years and can be traced to the 18th century B.C. Babylonian king, Hammurabi. Over the past 10 years, transportation intermediaries are directing more and more of their carrier payments to factoring companies ‐ anecdotally, we hear as much as 80%. At Triumph Business Capital, we’ve processed carrier payments for over 500 freight brokers, and our experience is consistent with those reports.

Why Now?

It starts with economics. Lots of new capital has flooded the commercial finance sector, and many new factoring companies have entered the transportation space. And, why not? The collectability of a freight bill is terrific. As a result of increasing competition, carriers are solicited daily with factoring offers of high advance rates (the percentage of the freight bill advanced at time the invoice is sold or “factored”) coupled with factoring fees that are a fraction of what they were 10 years ago. In fact, factoring fees are typically at or below the same pricing which many brokers charge for quick pay.

The quality of factoring services has improved as well. Many of the top factoring companies offer online credit services, fuel purchase programs, equipment and insurance financing and mobile technology applications. The factoring industry has come a long way, too.

Frequently Asked Questions

Q. What is the difference between recourse and non‐recourse factoring? And, how does it affect me?

A. Recourse means the factoring client is ultimately responsibility for the payment of the invoice. Non‐recourse factoring allows companies to sell their invoices in a style in which the factoring company assumes the credit risks. Often misunderstood, non‐payment for legitimate disputes (such as shortages, claims, late delivery, etc.) remain the responsibility of the client regardless of contract form. The style of a carrier’s factoring contract should have no impact on the freight broker.

 

Q. What is a Notice of Assignment and do Freight Brokers need to acknowledge them?

A. The Uniform Commercial Code (§ 9‐406) outlines the business and law underlying the invoice factoring industry. The ability to assign payment obligations (accounts) from the
broker (account debtor) to a factor (assignee) was a purposeful and intentional provision that the UCC drafters identified to provide businesses with opportunity to raise working
capital. Remember, the assignment of pay proceeds is separate and distinct from the assignment of services or other responsibilities in a legal contract (i.e., Broker‐Carrier
agreements). Payors cannot restrict the assignment of proceeds and are subject to double‐payment liability if they choose to ignore proper notification. Notice of
Assignments (NOA’s) can be presented by an invoice “stamp”, separate communication (letter) or both. Once you have been “effectively noticed” all payments must go to the
factoring company, whether the invoice has a stamp or not, and regardless of any claims by the carrier whether or not a particular invoice was factored. Never stop sending
payments to the factor until you receive a release letter, which the factoring company should be willing to provide

 

Q. What makes a Notice of Assignment binding? Is a signature required?

A. The effectiveness of an NOA is a question answered by case law, but the practical guidelines are simply and widely accepted. The account debtor is not required to
acknowledge the NOA with a signature and, even if there was a signature, it might not be clear as to whether the person signing the NOA had the proper authority to do so.
So, you don’t have to sign them – but that doesn’t really matter. Once an account debtor sends payment to the factoring company, it’s broadly understood that they did so based
upon receiving notice. (Why else would you send money to someone other than the carrier who hauled the freight?) If you pay a factoring company one time, then the NOA
is probably effective and you’re most likely bound by its terms. Now, you can refuse to use carriers that work with factoring companies, or even certain factoring companies,
but you can’t ignore a valid NOA once received.

 

Q. Am I obligated to pay a carrier’s factoring company if we haven’t received a Notice of Assignment.

A. Short answer is No. With more and more “online” or “cash advance” lenders entering the space, this question is more likely to come up than you may realize. A business may
grant a factor or lender a security interest in its accounts receivable, and perfect that security interest by filing a UCC financing statement. Security interests establish priority
among secured creditors, but do not impact payment remittance. It’s all about assignment and your receipt of effective notification of that assignment.

 

Q. Does the presence of a factoring company restrict our ability to offset future payments for claims?

A. Frankly, there’s a lot of “urban myth” surrounding this subject, but it ultimately depends on the broker‐carrier agreement. UCC § 9‐404 provides the factor (assignee) with certain
protections against claims and defenses – but only to the extent that the contract was silent on those provisions. Generally speaking, the broker’s obligation to the pay the
factor are identical to the contractual obligations for paying the carrier. As a practical (and ethical) matter, the factor is entitled to the same level of communication regarding
claims and setoffs that you would reasonably provide the carrier.

 

Q. What can be done about factoring companies which report slow payments and delinquencies to credit reporting agencies, regardless of how timely those payments are sent?

A. There are two primary reasons for unfair credit reporting: the U.S. Postal Service and bad factoring companies. Mail times are continuing to deteriorate, and payors using mail
service providers are likely experiencing additional delays. If you’re committed to mailing your payments, utilizing the “Intelligent Bar Code” will reduce USPS time and
processing errors. Alternatively, most reputable factoring companies will accept payment by ACH or wire, particularly if your TMS or accounting system can provide
reasonable instructions for correctly applying those payments.

 

Q. What about the “bad actors” in the factoring community, who are unreasonable, annoying and difficult to deal with?

A. The International Factoring Association (IFA) is an engaged trade organization which is elevating its constituency through education, best practices and advocacy. Over 450 IFA
members ascribe to a Code of Ethics and the organization actively responds to inquiries and disputes. You can contact the IFA at (800) 563‐1895 or info@factoring.org.

 

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