You can sue. The question is not whether you have the right. The question is whether the facts, the law, and the economics of your situation make litigation the most effective path to relief.

Business owners in MCA disputes often assume they are defendants — that the funder holds the initiative, and the business owner’s only role is to respond. That assumption is incorrect. A business owner can file an affirmative lawsuit against an MCA company. The lawsuit can seek declaratory relief — a court order declaring the agreement void or unenforceable. It can seek damages for fraud, deceptive practices, illegal collection conduct, or breach of the agreement’s own terms. It can seek injunctive relief — a court order stopping the funder from collecting, debiting accounts, or enforcing a confession of judgment. The business owner is not limited to playing defense.

When Litigation Makes Sense

Litigation makes sense when the agreement is void as a matter of law. If the MCA is recharacterized as a loan and the effective interest rate exceeds the state’s usury threshold, the agreement is void. A lawsuit seeking a declaratory judgment of voidness extinguishes the obligation entirely. The business owner does not negotiate a reduction. The business owner eliminates the debt. When the math supports voidness, litigation is not merely viable — it is the most powerful option available.

Litigation makes sense when the funder’s conduct created independent claims. If the funder engaged in fraud, deceptive practices, illegal collection, unauthorized debits, or other actionable misconduct, those claims have value independent of the MCA agreement. The business owner is not just defending against the funder’s demand for payment. The business owner is asserting affirmative claims that may result in damages, penalties, and attorney’s fees paid by the funder.

Litigation makes sense when negotiation has failed or is impossible. Some funders do not negotiate in good faith. Some funders do not negotiate at all. Some funders respond to settlement overtures by accelerating collection — filing confessions of judgment, freezing accounts, engaging aggressive collectors. When the funder’s response to negotiation is escalation, litigation is the mechanism that levels the field. A lawsuit creates obligations for the funder: the obligation to respond, the obligation to produce documents in discovery, the obligation to appear before a court that has the power to compel compliance.

Litigation makes sense when the stakes justify the cost. MCA obligations can range from tens of thousands to hundreds of thousands of dollars. A $200,000 MCA obligation that is void under usury law represents $200,000 in savings if the litigation succeeds. The cost of litigation, while significant, is a fraction of the obligation it eliminates.

When Litigation Does Not Make Sense

Litigation does not make sense when the agreement is enforceable and the balance is small enough that the cost of litigation exceeds the potential recovery. If the MCA is a genuine purchase of receivables with a functioning reconciliation clause, a reasonable factor rate, and no actionable misconduct by the funder, the legal basis for a lawsuit may be insufficient.

Litigation does not make sense when the arbitration clause is enforceable and the dispute must proceed in arbitration. In that case, the strategic analysis shifts from litigation to arbitration, but the substantive claims remain the same. The forum changes. The arguments do not.

Litigation does not make sense as a delay tactic. Filing a lawsuit to buy time without a genuine legal basis exposes the business owner to sanctions, adverse judgments, and the destruction of credibility with the court. Litigation is a tool. Used properly, it resolves disputes and eliminates void obligations. Used improperly, it creates new problems.

The Preemptive Lawsuit

One of the most effective litigation strategies in the MCA context is the preemptive lawsuit — filing before the funder acts. If you know a default is imminent or has occurred, and you know the funder will file a confession of judgment or commence collection, filing your own lawsuit first changes the dynamics of the dispute entirely.

The preemptive lawsuit puts you in the position of plaintiff. The court where you file is likely in your home jurisdiction, not the funder’s preferred forum. The lawsuit frames the dispute on your terms — usury, fraud, deceptive practices — rather than on the funder’s terms of breach and collection. Discovery proceeds on your schedule. The funder must respond to your complaint, not the other way around.

The preemptive lawsuit can also include a request for a temporary restraining order or preliminary injunction preventing the funder from filing a confession of judgment, freezing accounts, or taking other enforcement action pending the resolution of the case. If granted, the injunction preserves the status quo while the merits of the dispute are adjudicated.

DEFENSE TEAM SPOTLIGHT

Todd Spodek

Lead Attorney & Founder

Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.

NY Bar Admitted
Multi-State Licensed
Federal Courts

Meet the Full Team

For more on this topic, see Key MCA Lawsuits and Court Decisions Every Business Owner Should Know.

Choosing Your Attorney

MCA litigation is a specialized practice. The attorney should understand MCA contract structures, the recharacterization case law, usury statutes in the relevant jurisdictions, the confession of judgment process, UCC lien filings, and the regulatory landscape. General commercial litigation experience is necessary but not sufficient. The MCA industry has specific patterns, specific players, and specific legal vulnerabilities. An attorney who knows the industry can identify those vulnerabilities and exploit them efficiently.

The initial consultation should produce a clear assessment: what claims are available, what defenses exist, what the likely outcome is, and what the cost-benefit analysis looks like. The decision to litigate should be informed, strategic, and based on the specific facts of your case — not on frustration alone.

For more on this topic, see Is Your MCA Actually a Loan? Why the Legal Distinction Matters.