Rapid Capital Fin., LLC v Natures Mkt. Corp., 57 Misc 3d 979, 984 [Sup Ct, Westchester County 2017]; K9 Bytes, Inc. v Arch Capital Funding, LLC, 56 Misc 3d 807, 819 [Sup Ct, Westchester County 2017]; IBIS Capital Group, LLC v Four Paws Orlando LLC, 2017 N.Y. Slip Op. 30477[U], *7 [Sup Ct, Nassau County 2017]). Courts that found otherwise, that MCA agreements were usurious loans disguised as purchases of accounts receivable, typically found no provisions for forgiveness or modification of the loans, such as viable and enforceable reconciliation provisions, in the event that the funding companies could not collect the daily amounts required (see e.g. Funding Metrics, LLC v NRO Boston, LLC, 2019 N.Y. Slip Op 32651[U], *5 [Sup Ct, Westchester County 2019]; P & HR Solutions LLC v RAM Capital Funding, LLC, Sup Ct, NY County, January 18, 2019, Engoron, J., index No. 650238/2019; Funding Metrics, LLC v D & V Hosp., Inc., 62 Misc 3d 966, 972 [Sup Ct, Westchester County 2019]; Principis Capital, LLC v Gary Buchanan Enterprises, LLC, Sup Ct, Kings County, June 6, 2018, Landicino, J., index No. 515816/2017; QFC, LLC v Iron Centurian, LLC, 2017 N.Y. Slip Op. 31438[U], *3 [Sup Ct, Westchester County 2017]; Merchant Funding Servs., LLC v. Volunteer Pharmacy Inc., 55 Misc 3d 316, 318 [Sup Ct, Westchester County 2016]; Pearl Capital Rivis Ventures v. RDN Constr., 54 Misc 3d 470, 474 [Sup Ct, Westchester County 2016]).

Enpark argued that contracts to purchase future receivables are loans subject to usury laws and unenforceable, citing Funding Metrics, LLC v. NRO Edgartown, LLC, 2019 WL 4376780, 2019 N.Y. Slip. Op. 32651 (N.Y. Sup. Ct. Aug. 28, 2019); GMI Grp., Inc. v. Unique Funding Sols., LLC, 606 B.R. 467, 489 (Bankr. N.D.Ga. 2019) (applying New York law); QFC, LLC v. Iron Centurian, LLC, 2017 WL 2989222, 2017 N.Y. Slip. Op. 31438 (N.Y. Sup. Ct. July 5, 2017), rev'd, 179 A.D.3d 1110 (2020); Merch. Funding Servs., LLC v. Volunteer Pharmacy, Inc., 55 Misc.3d 316 (N.Y. Sup. Ct. 2016), rev'd, 179 A.D.3d 1051 (2020); Pearl Capital Rivis Ventures, LLC v. RDN Constr., Inc., 54 Misc.3d 470, (N.Y. Sup. Ct. 2016); see also Funding Metrics, LLC v. D&V Hosp., Inc., 62 Misc.3d 966 (N.Y. Sup. Ct. 2019), rev'd, 197 A.D.3d 1150 (2021). Enpark set forth the elements of criminal usury under New York law, and explained why, under the facts of this case, Enpark believed the Revenue Purchase Agreement was criminally usurious.

Unless a principal sum advanced is repayable absolutely, the transaction is not a loan (seeRubenstein v. Small , 273 App.Div. 102, 75 N.Y.S.2d 483 ). Usually, courts weigh three factors when determining whether repayment is absolute or contingent: (1) whether there is a reconciliation provision in the agreement; (2) whether the agreement has a finite term; and (3) whether there is any recourse should the merchant declare bankruptcy (seeK9 Bytes, Inc. v. Arch Capital Funding, LLC , 56 Misc.3d at 816–819, 57 N.Y.S.3d 625 ; see alsoFunding Metrics, LLC v D & V Hospitality, Inc. , 62 Misc.3d 966, 91 N.Y.S.3d 678, 970 [Sup. Ct. Westchester County] ). Here, with respect to a reconciliation provision, the agreement provides that the plaintiff "may, upon [United's] request, adjust the amount of any payment due under this Agreement at [its] sole discretion and as it deems appropriate" (emphasis added).

Unless a principal sum advanced is repayable absolutely, the transaction is not a loan (see Rubenstein v. Small, 273 App.Div. 102, 75 N.Y.S.2d 483). Usually, courts weigh three factors when determining whether repayment is absolute or contingent: (1) whether there is a reconciliation provision in the agreement; (2) whether the agreement has a finite term; and (3) whether there is any recourse should the merchant declare bankruptcy (see K9 Bytes, Inc. v. Arch Capital Funding, LLC, 56 Misc.3d at 816-819, 57 N.Y.S.3d 625; see also Funding Metrics, LLC v D &V Hospitality, Inc., 62 Misc.3d 966, 91 N.Y.S.3d 678, 970 [Sup. Ct. Westchester County]).

Unless a principal sum advanced is repayable absolutely, the transaction is not a loan (see Rubenstein v. Small, 273 App.Div. 102, 75 N.Y.S.2d 483). Usually, courts weigh three factors when determining whether repayment is absolute or contingent: (1) whether there is a reconciliation provision in the agreement; (2) whether the agreement has a finite term; and (3) whether there is any recourse should the merchant declare bankruptcy (see K9 Bytes, Inc. v. Arch Capital Funding, LLC, 56 Mise.3d at 816-819, 57 N.Y.S.3d 625; see also Funding Metrics, LLC v D & V Hospitality, Inc., 62 Mise.3d 966, 91 N.Y.S.3d 678, 970 [Sup. Ct. Westchester County]).

Unless a principal sum advanced is repayable absolutely, the transaction is not a loan (see Rubenstein v. Small, 273 App.Div. 102,75 N.Y.S.2d 483). Usually, courts weigh three factors . when determining whether repayment is absolute or contingent: (1) whether there is a reconciliation provision in the agreement; (2) whether the agreement has a finite term; and (3) whether there is any recourse should the merchant declare bankruptcy (see K9 Bytes, Inc. v. Arch Capital Funding, LLC, 56 Mise.3d at 816-819, 57 N.Y.S.3d 625; see also Funding Metrics, LLC v D &V Hospitality, Inc., 62 Mise.3d 966, 91 N.Y.S.3d 678, 970 [Sup. Ct. Westchester County]).

The court must examine whether the plaintiff "is absolutely entitled to repayment under all circumstances" (K9 Bytes, Inc. v. Arch Capital Funding, LLC, 56 Misc.3d 807, 816, 57 N.Y.S.3d 625 [Sup. Ct. Westchester County]). Unless a principal sum advanced is repayable absolutely, the transaction is not a loan (see Rubenstein v. Small, 273 App.Div. 102, 75 N.Y.S.2d 483). Usually, courts weigh three factors when determining whether repayment is absolute or contingent: (1) whether there is a reconciliation provision in the agreement; (2) whether the agreement has a finite term; and (3) whether there is any recourse should the merchant declare bankruptcy (see K9 Bytes, Inc. v. Arch Capital Funding, LLC, 56 Misc.3d at 816-819, 57 N.Y.S.3d 625; see also Funding Metrics, LLC v D & V Hospitality, Inc., 62 Misc.3d 966, 91 N.Y.S.3d 678, 970 [Sup. Ct. Westchester County]).

The court must examine whether the plaintiff "is absolutely entitled to repayment under all circumstances" (LG Funding, LLC, 181 AD3d at 665-666, quoting K9 Bytes, Inc. v Arch Capital Funding, LLC, 56 Misc 3d 807, 816 [Sup Ct, Westchester County 2017]). Unless a principal sum advanced is repayable absolutely, the transaction is not a loan (LG Funding, LLC, 181 AD3d at 665-666, citing see Rubenstein v Small, 273 App Div 102, 104 [1st Dept 1947]). Usually, courts weigh three factors when determining whether repayment is absolute or contingent: (1) whether there is a reconciliation provision in the agreement; (2) whether the agreement has a finite term; and (3) whether there is any recourse should the merchant declare bankruptcy (LG Funding, LLC, 181 AD3d at 665-666, citing see K9 Bytes, Inc., 56 Misc 3d at 816-819 [Sup Ct, Westchester County 2017]; see also Funding Metrics, LLC v D & V Hospitality, Inc., 62 Misc 3d 966, 970 [Sup Ct, Westchester County 2019]). Here, with respect to a reconciliation provision, the agreement provided that plaintiff "may, upon [RHS's] request, adjust the amount of any payment due under this Agreement at LG's sole discretion and as it deems appropriate" (emphasis added).