SBA loan settlements require specific knowledge of current policies and changes. Here are the elements of a successful SBA offer in compromise.
Book a Consultation CallMany people rely on loans to start or grow their small businesses. Financing remains a critical part of turning a dream into reality. Small businesses use loans for everything from working capital to purchasing equipment to marketing initiatives.
When businesses fall into hardship, it can become difficult to make payments on loans. While banks will often try to create work-out plans with struggling borrowers, this becomes trickier if the loan is guaranteed by the Small Business Administration.
If your loan falls into default, you can request an SBA offer in compromise (OIC). Getting approval for your OIC can mean the difference between being crushed by your SBA debt and being able to pay back a much smaller amount.
SBA Offer in Compromise
If you begin to fall behind on your loan payments, your lender will attempt to collect. This can include everything from repossessing the assets used as collateral on the loan to making a demand on the guarantors.
Any guarantors will have signed a guarantee document. The guarantee comprises a legal promise that you will personally pay back the loan if your business cannot. The SBA requires personal guarantees from any borrowers owning 20% or more of the business or those that have key management positions.
The SBA also holds a guarantee on the loan, but in a different way. The SBA's guarantee says that in the event of default if the bank fails in its collection efforts, the SBA will repay the bank. This can be up to 85% of the loan amount.
As the lender begins its efforts to collect from the business, it will turn to the guarantors and make demands as well. The bank will request that the SBA honor their guarantee once the lender exhausts all efforts to collect. If the federal government takes a loss, it may take additional steps, such as freezing the borrower's bank account or garnishing wages.
The offer in compromise represents your one chance to settle the debt. You would pay a smaller portion of the full amount due. In exchange, the SBA considers the debt to be completely paid off.
On an SBA Form 1150, you would make an offer and state your case for the SBA to accept your offer. You must meet certain requirements to submit an SBA loan offer in compromise, which the SBA has outlined:
Based on the eligibility criteria, you must wait to begin the process for an offer in compromise (OIC) until the business completes its closure and the assets liquidated. You submit your OIC proposal to the SBA through your lender, so you will want to confirm that your lender is open to an OIC.
If the SBA approves your offer, your personal guaranty on the loan will be released. You will pay the amount agreed to in the offer, and this payment could be structured over time.
As you prepare your offer, you will also need to get your financial disclosures ready. Since the SBA needs to understand your "full financial capacity," you'll need to have ready prior years' tax returns, a personal financial statement with a list of your assets, as well as other forms that the SBA will require.
The most critical part of your OIC consists of your grounds for acceptance of the offer. This represents your argument to the SBA that they should settle with you rather than pursue the full amount of the debt. There are a few strategies that can result in the SBA accepting your OIC.
Demonstrate to the SBA that it cannot recover the debt in a reasonable amount of time. You must convince the SBA that your offer is a better option for recovering part of the loan. For example, a factor could be the amount of disposable monthly income you have compared to the loan amount.
This approach looks at the underlying SBA loan itself and raises questions about the SBA's ability to prevail in court because of legal issues or factual disputes. An attorney would review the loan documentation and determine if there were issues with documentation, misrepresentation, or due process.
The SBA will not settle if further collection efforts will recover more. You need to convince the SBA that your offer is better than what the federal government could otherwise obtain through home equity, wage garnishment, litigation, or other tactics.
This involves "crunching the numbers" and understanding the collection process so that you can make an offer that the SBA will find reasonable.
If your loan is facing default, the best option is to open discussions about options as soon as possible. Your willingness to work with the SBA and your lender will go a long way. The SBA offer in compromise is a way to make a good faith settlement on your business debt.
How much you will end up owing will ultimately depend on the amount of the debt and the package that you present to the SBA based on the strategy used.
Rather than attempt to prepare an offer yourself, you can use an experienced attorney. You will be more likely to have the SBA accept your offer in compromise as reasonable and have your rights protected. Contact us at Protect Law Group today to speak with an SBA work-out attorney.
Millions of Dollars in SBA Debts Resolved via Offer in Compromise and Negotiated Repayment Agreements without our Clients filing for Bankruptcy or Facing Home Foreclosure
Millions of Dollars in Treasury Debts Defended Against via AWG Hearings, Treasury Offset Program Resolution, Cross-servicing Disputes, Private Collection Agency Representation, Compromise Offers and Negotiated Repayment Agreements
Our Attorneys are Authorized by the Agency Practice Act to Represent Federal Debtors Nationwide before the SBA, The SBA Office of Hearings and Appeals, the Treasury Department, and the Bureau of Fiscal Service.
Client’s small business obtained an SBA 7(a) loan for $750,000. She and her husband signed personal guarantees exposing all of their non-exempt income and assets. With just 18 months left on the maturity date and payment on the remaining balance, the Great Recession of 2008 hit, which ultimately caused the business to fail and default on the loan terms. The 7(a) lender accelerated and sent a demand for full payment of the remaining loan balance. The SBA lender’s note allowed for a default interest rate of about 7% per year. In response to the lender's aggressive collection action, Client's husband filed for Chapter 7 bankruptcy in an attempt to protect against their personal assets. However, his bankruptcy discharge did not relieve the Client's personal guarantee liability for the SBA debt. The SBA lender opted to pursue the SBA 7(a) Guaranty and subsequently assigned the loan and the right to enforce collection against the Client to the SBA. The Client then received the SBA Official 60-Day Notice. After conducting a Case Evaluation with her, she then hired the Firm to respond and negotiate on her behalf with just 34 days left before the impending referral to Treasury. The Client wanted to dispute the SBA’s alleged debt balance as stated in the 60-Day Notice by claiming the 7(a) lender failed to liquidate business collateral in a commercially reasonable manner - which if done properly - proceeds would have paid back the entire debt balance. However, due to time constraints, waivers contained in the SBA loan instruments, including the fact the Client was not able to inspect the SBA's records for investigation purposes before the remaining deadline, Client agreed to submit a Structured Workout for the alleged balance in response to the Official 60-Day Notice as she was not eligible for an Offer in Compromise (OIC) because of equity in non-exempt income and assets. After back and forth negotiations, the SBA Loan Specialist approved the Workout proposal, reducing the Client's purported liability by nearly $142,142.27 in accrued interest, and statutory collection fees. Without the Firm's intervention and subsequent approval of the Workout proposal, the Client's debt amount (with accrued interest, Treasury's statutory collection fee and Treasury's interest based on the Current Value of Funds Rate (CVFR) would have been nearly $291,030.
Client personally guaranteed SBA 7(a) loan for $150,000. COVID-19 caused the business to fail, and the loan went into default with a balance of $133,000. Client initially hired a non-attorney consultant to negotiate an OIC. The SBA summarily rejected the ineligible OIC and the debt was referred to Treasury’s ureau of Fiscal Service for enforced collection in the debt amount of $195,000. We were hired to intervene and initiated discovery for SBA and Fiscal Service records. We were able to recall the case from Fiscal Service back to the SBA. We then negotiated a structured workout with favorable terms that saves the client approximately $198,000 over the agreed-upon workout term by waiving contractual and statutory administrative fees, collection costs, penalties, and interest.
Client’s small business obtained an SBA 7(a) loan for $150,000. He and his wife signed personal guarantees and pledged their home as collateral. The SBA loan went into default, the term or maturity date was accelerated and demand for payment of the entire amount claimed was made. The SBA lender’s note gave it the right to adjust the default interest rate from 7.25% to 18% per annum. The business filed for Chapter 11 bankruptcy but was dismissed after 3 years due to its inability to continue with payments under the plan. Clients wanted to file for Chapter 7 bankruptcy, which would have been a mistake as their home had significant equity to repay the SBA loan balance in full as the Trustee would likely seize and sell the home to repay the secured and unsecured creditors. However, the SBA lender opted to pursue the SBA 7(a) Guaranty and subsequently assigned the loan and the right to enforce collection to the SBA. Clients then received the SBA Official 60-Day Notice and hired the Firm to respond to it and negotiate on their behalf. Clients disputed the SBA’s alleged balance of $148,000, as several payments made to the SBA lender during the Chapter 11 reorganization were not accounted for. To challenge the SBA’s claimed debt balance, the Firm Attorneys initiated expedited discovery to obtain government records. SBA records disclosed the true amount owed was about $97,000. Moreover, because the Clients’ home had significant equity, they were not eligible for an Offer in Compromise or an immediate Release of Lien for Consideration, despite being incorrectly advised by non-attorney consulting companies that they were. Instead, our Firm Attorneys recommended a Workout of $97,000 spread over a lengthy term and a waiver of the applicable interest rate making the monthly payment affordable. After back and forth negotiations, SBA approved the Workout proposal, thereby saving the home from imminent foreclosure and reducing the Clients' liability by nearly $81,000 in incorrect principal balance, accrued interest, and statutory collection fees.
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