Crosby Marine Transportation, LLC v. Meged Funding Group Corp et al

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF LOUISIANA
IN RE:
CROSBY MARINE TRANSPORTATION,
LLC,
DEBTORS.1
§ CASE NO. 26-10678
§ (JOINTLY ADMINISTERED)
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§ CHAPTER 11
§ COMPLEX CASE
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CROSBY TUGS, L.L.C., CROSBY DREDGING,
LLC, CROSBY MARINE TRANSPORTATION,
LLC, AND BERTUCCI CONTRACTING
COMPANY, L.L.C.,
PLAINTIFFS,
V.
MEGED FUNDING GROUP A/K/A MEGED
FUNDING GROUP CORP,
ALLIANCE ENERGY SERVICES, LLC,
ARENA OFFSHORE,
CANTRELLE SERVICES LLC,
CANTIUM LLC,
CAJUN INDUSTRIES LLC,
CHAMPAGNE ENERGY & ENVIRONMENTAL
SOLUTIONS,
CHEVRON PRODUCTION CO.,
CURTIN MARITIME,
ECOSERV, LLC,
ECOSERV ENVIRONMENTAL SERVICES,
LLC,
GAC NORTH AMERICA,
INGRAM MARINE GROUP,
JOHN W STONE OIL DISTRIBUTOR LLC,
KENOSIS OPERATING COMPANY,
KEVIN GROS CONSULTING,
LOOP LLC,
LUHR CROSBY LLC,
MODERN AMERICAN RECYCLING,
MARSHLAND EQUIPMENT RENTALS,
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§ ADV. NO. 26-1018
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1 The Court entered an Order directing joint administration of the Chapter 11 bankruptcy case of
Crosby Marine Transportation, LLC [No. 26-10678], as lead case, with the Chapter 11 bankruptcy cases of
(i) Crosby Tugs, L.L.C. [No. 26-10679], (ii) Crosby Dredging, LLC [No. 26-10680], and (iii) Bertucci
Contracting Company, L.L.C. [No. 26-10681], on March 24, 2026, [No. 26-10678, ECF Doc. 9; No. 26-
10679, ECF Doc. 4; No. 26-10680, ECF Doc. 4, No. 26-10681, ECF Doc. 4].
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MCDONOUGH MARINE SERVICE,
MORRISON OFFSHORE LLC,
PATRIOT MARINE SERVICES,
PORT OF IBERIA DISTRICT BOARD OF
COMMISSIONERS,
ROSE CAY MARITIME LLC,
SABINE NECHES NAVIGATION DISTRICT,
SPACE EXPLORATION TECHNOLOGIES,
TALA ENVIRONMENTAL LLC,
THOM-SEA BOAT BUILDERS,
TK TOWING INC.,
TPC GROUP LLC,
TRITON DIVING SERVICES LLC,
T&T MARINE SALVAGE INC.,
VENTURE GLOBAL CALCASIEU PASS LLC,
WALTER OIL & GAS,
WHITE FLEET DRILLING,
HEEREMA MARINE CONTRACTORS
NEDERLAND, S.E.,
AQUA CAPITAL LLC.,
BREEZE FUNDING,
CELTIC ADVANCE,
EN OD CAPITAL,
ALO ADVANCE,
CEDAR ADVANCE LLC,
CLEARFUND SOLUTIONS, LLC,
COLDWATER CAPITAL, LLC,
COOPER INVESTMENTS, LLC,
DEPENDENCE PLATINUM,
FOREVER FUNDING LLC,
FREEDOM FUNDING LLC,
GALT FUNDING CO,
INSIGHT CAPITAL LLC,
LIBERTAS FUNDING, LLC,
MOBY CAPITAL LLC D/B/A MOBYCAP,
MYNT GOLD, LLC A/K/A MYNT ADVANCE,
NOVAC EQUITIES LLC,
ODK CAPITAL, LLC D/B/A ON DECK,
ORACAP LLC,
OVERTIME CAPITAL,
PARKVIEW ADVANCE LLC,
PINNACLE BUSINESS FUNDING LLC,
RELIANCE FINANCIAL FL, LLC,
ROCKET CAPITAL NY, LLC.
SQ ADVANCE,
SURGE FUNDING LLC,
TRUE BUSINESS FUNDING LLC,
WEB BANK C/O LIBERTAS FUNDING LLC, &
WYNWOOD CAPITAL GROUP, LLC,
DEFENDANTS.
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MEMORANDUM OPINION AND ORDER
On April 3, 2026, shortly after commencing these jointly administered cases, Crosby
Marine Transportation, LLC (“Crosby Marine”), Crosby Tugs, L.L.C. (“Crosby Tugs”), Crosby
Dredging, LLC (“Crosby Dredging”), and Bertucci Contracting Company, L.L.C. as debtors and
debtors-in-possession (together, the “Debtors”), commenced the above-captioned adversary
proceeding by filing a complaint against certain of their Customers2 as well as numerous MCA
Defendants (the “Complaint”). [ECF Doc. 1]. Through the Complaint, the Debtors seek (i) a
declaration that Crosby Accounts Receivable are property of the estate under 11 U.S.C. § 541
(Count 1); (ii) turnover of cash owed from Customers to Crosby Tugs and Crosby Dredging
pursuant to accounts receivable under 11 U.S.C. § 542 (Count 2); (iii) injunctive relief enjoining
the MCA Defendants from seeking payment of the Debtors’ accounts receivable directly from
Customers (Count 3); (iv) a declaration recharacterizing the MCA Agreements as disguised loans
(Count 4); and (v) a declaration that Interested Parties are adequately protected from any
diminution of the Debtors’ use of cash collateral stemming from the Debtors’ post-petition
receivables (Count 5). See id.
Before the Court is the Debtors’ Motion for Partial Summary Judgment Against MCA
Defendants (the “MPSJ”), [ECF Doc. 202]. The Debtors seek summary judgment against Rocket
Capital NY LLC (“Rocket”) on Counts 1–4 of their Complaint. The Debtors submitted a statement
of uncontested facts, [ECF Doc. 202-1], and Rocket filed an opposition to the MPSJ, [ECF Doc.
287], and a counterstatement of material facts, [ECF Doc. 283].3 The Debtors filed a reply brief
2 Capitalized terms not otherwise defined herein are defined as described in the Complaint and
exhibits attached to the Complaint.
3 MCA Defendants Mynt Gold, LLC and EN OD Capital, LLC joined in Rocket’s opposition. The
Court has issued a separate Memorandum Opinion and Order as to each defendant.
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in support of the MPSJ. [ECF Doc. 292]. In short: The Debtors assert that the text of the MCA
Agreement executed among Crosby entities and Rocket is unambiguous and reveals that the
agreements are disguised loans as a matter of law. [ECF Doc. 202 & 292, ¶ 5]. Rocket joins in
the arguments made by other MCA Defendants and asserts that the text of the MCA Agreement is
unambiguous and that the agreement is by its terms a true sale. [ECF Doc. 287]. Rocket also joins
in the arguments made by other MCA Defendants that summary judgment is premature because it
has not been given adequate time to conduct discovery to make a complete summary judgment
record. See id. In their reply, the Debtors repeat the standard contract-interpretation principle that
where the language of an agreement is unambiguous, a court must look only at the “four corners”
of the agreement (and not to any extrinsic evidence) to interpret the contract as a matter of law,
which precludes the need for further discovery here. [ECF Doc. 292, ¶ 6]. For the reasons set
forth below, the Court GRANTS IN PART and DENIES IN PART the Debtors’ MPSJ.
JURISDICTION AND VENUE
This Court has jurisdiction to grant the relief provided for herein pursuant to 28 U.S.C.
§ 1334. The matters presently before the Court constitute core proceedings that this Court may
hear and determine on a final basis under 28 U.S.C. § 157(b)(2)(B). Venue is proper pursuant to
28 U.S.C. §§ 1408 and 1409.
UNDISPUTED FACTS
The following material facts are either uncontested, not the subject of a genuine dispute, or
are subject to judicial notice by this Court:
The Debtors and their affiliates are in the marine transportation industry. [ECF Docs. 202-
47, ¶ 8 & 202-48]. The Debtors and their non-debtor affiliates have a fleet of more than 200 vessels
and marine equipment, with Crosby Marine owning approximately 80% of the fleet. [ECF Doc.
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202-47, ¶¶ 23 & 28]. Crosby Tugs assists small freighters, container ships, aircraft carriers, very
large crude carriers, and other vessels into and out of births; escorts oil tankers quickly and safely
through shipping channels and environmentally sensitive waters; and tows ships, semisubmersible
rigs, landing platforms, and other vessels. [ECF Doc. 202-47, ¶ 23]. Crosby Dredging deploys a
variety of equipment to complete dredging work and coastal-restoration projects for a variety of
governmental and private businesses. See id.
By providing those services to their Customers, Crosby Tugs and Crosby Dredging
generate substantial accounts receivable (the “Crosby Accounts Receivable”). [ECF Doc. 202-1,
¶ 9; ECF Doc. 274-1]. Attached to the Complaint as Exhibit B is a schedule of uncollected past-
due and owing Crosby Accounts Receivable as of the filing of the Adversary Complaint. [ECF
Doc. 202-1, ¶ 10; ECF Doc. 274-1]. As of the date of the Complaint, Crosby Tugs had total
accounts receivable in the amount of $10,840,638.45,4 consisting of current accounts receivable
in the amount of $5,755,785.29,5 and past-due accounts receivable in the amount of
$5,084,853.16,6 while Crosby Dredging had total accounts receivable in the amount of
$7,874,046.37,7 consisting of current accounts receivable in the amount of $602,297.63,8 and past-
due accounts receivable in the amount of $7,271,748.74.9 [ECF Doc. 202-1, ¶ 11; ECF Doc. 274-
1].
4 See Complaint, Ex. B, Crosby Tugs, Column G.
5 See Complaint, Ex. B, Crosby Tugs, Column D.
6 See Complaint, Ex. B, Crosby Tugs, Column F.
7 See Complaint, Ex. B, Crosby Dredging, Column G.
8 See Complaint, Ex. B, Crosby Dredging, Column D.
9 See Complaint, Ex. B, Crosby Dredging, Column F.
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Between February 20, 2025, and February 13, 2026, the Debtors and individual MCA
Defendants executed the following prepetition MCA Agreements:
Ex.
No. Agreement Name MCA Counterparty Debtor
Counterparty Date of
Execution
1 Sale of Future Receipts
Agreement ALO Advance Crosby Tugs,
Crosby Dredging 12/18/2025
2 Revenue Purchase Agreement Aqua Capital LLC Crosby Tugs 2/13/2026
3 Sale of Future Receipts
Agreement Breeze Funding Crosby Dredging 12/1/2025
4 Sale of Future Receipts
Agreement Breeze Funding Crosby Dredging 10/10/2025
5 Standard Merchant Cash
Advance Agreement Cedar Advance LLC Crosby Tugs,
Crosby Dredging 3/11/2025
6 Standard Merchant Cash
Advance
Agreement
Celtic Advance LLC Crosby Tugs,
Crosby Dredging 12/18/2025
7 Standard Merchant Cash
Advance Agreement Celtic Advance LLC Crosby Tugs,
Crosby Dredging 2/13/2026
8 Sale of Future Receipts
Agreement Coldwater Capital Crosby Dredging 5/28/2025
9 Revenue Purchase Agreement Cooper Investments LLC Crosby Tugs,
Crosby Dredging 12/26/2025
10 Revenue Purchase Agreement Cooper Investments LLC Crosby Tugs,
Crosby Dredging 1/22/2026
11 Sale of Future Receipts
Agreement
Dependance Platinum
FL LLC
Tugs, Crosby
Dredging 5/28/2025
12 Standard Merchant Cash
Advance
Agreement
EN OD Capital Crosby Dredging 6/16/2025
13 Standard Merchant Cash
Advance Agreement Forever Funding LLC Crosby Tugs 6/30/2025
14 Revenue Purchase Agreement Freedom Funding LLC Crosby Tugs 12/18/2025
15 Revenue Purchase Agreement Freedom Funding LLC Crosby Tugs 2/13/2026
16 Revenue Purchase Agreement Galt Funding Co. Crosby Tugs 11/25/2025
17 Revenue Purchase Agreement Galt Funding Co. Crosby Tugs,
Crosby Dredging 12/26/2025
18 Standard Merchant Cash
Advance
Agreement
Insight Capital LLC Crosby Dredging 8/21/2025
19 Standard Merchant Cash
Advance Agreement Insight Capital LLC Crosby Dredging 12/2/2025
20 Standard Merchant Cash
Advance Agreement Meged Funding Group
Crosby Tugs,
Crosby Dredging,
Crosby Marine 4/22/2025
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21 Standard Merchant Cash
Advance Agreement Meged Funding Group
Crosby Tugs,
Crosby Dredging,
Tugs, Crosby
Marine
4/22/2025
22 Standard Merchant Cash
Advance Agreement Meged Funding Group
Crosby Tugs,
Crosby Dredging,
Crosby Marine 5/12/2025
23 Agreement of Sale of
Future Receipts Moby Capital, LLC
Crosby Tugs,
Crosby Dredging,
Crosby Marine,
Bertucci
5/12/2025
24 Sale of Future Receipts
Agreement Mynt Advance Crosby Tugs,
Crosby Dredging 11/12/2025
25 Sale of Future Receipts
Agreement Mynt Advance Crosby Tugs,
Crosby Dredging 2/13/2026
26 Revenue Purchase Agreement Novac Equities LLC Crosby Tugs,
Crosby Dredging 12/18/2025
27 Revenue Purchase Agreement Novac Equities LLC Crosby Tugs,
Crosby Dredging 12/26/2025
28 Revenue Purchase Agreement
($100,000.00 Purchase Price) Novac Equities LLC Crosby Tugs,
Crosby Dredging 1/22/2026
29 Revenue Purchase Agreement
($200,000.00 Purchase Price) Novac Equities LLC Crosby Tugs,
Crosby Dredging 1/22/2026
30 Business Loan and
Security Agreement
OnDeck | ODK Capital
LLC Crosby Dredging Undated
31 Agreement of Sale of
Future Receipts Orcacap, LLC Crosby Dredging 4/10/2025
32 Agreement of Sale of
Future Receipts Orcacap, LLC Crosby Dredging 7/11/2025
33 Agreement of Sale of
Future Receipts Orcacap, LLC Crosby Dredging 9/5/2025
34 Sale of Future Receipts
Agreement Overtime Capital Crosby Dredging 6/24/2025
35 Standard Merchant Cash
Advance Agreement Parkview Advance Crosby Tugs 11/12/2025
36 Standard Merchant Cash
Advance Agreement
Pinnacle Business
Funding LLC
Crosby Tugs,
Crosby Dredging 11/12/2025
37 Standard Merchant Cash
Advance Agreement
Pinnacle Business
Funding LLC
Crosby Tugs,
Crosby Dredging 12/26/2025
38 Sale of Future Receipts
Agreement
Reliance Financial FL
LLC
Crosby Tugs,
Crosby Dredging 12/9/2025
39 Agreement for the
Purchase and Sale of
Future Receipts
Rocket Capital NY LLC Crosby Dredging 4/25/2025
40 Merchant Cash Advance SQ Advance
Crosby Tugs,
Crosby Dredging,
Crosby Marine,
Bertucci
6/11/2025
41 Revenue Purchase Agreement Surge Funding LLC Crosby Tugs 11/25/2025
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42 Revenue Purchase Agreement Surge Funding LLC Crosby Tugs 12/26/2025
43 Revenue Purchase Agreement Surge Funding LLC Crosby Tugs 1/22/2026
44 Standard Merchant Cash
Advance Agreement Wynwood Capital Group Crosby Dredging 2/20/2025
45 Standard Merchant Cash
Advance Agreement Wynwood Capital Group Crosby Dredging 3/11/2025
[ECF Doc. 202-1, ¶ 24 & 202-2 to -46; ECF Doc. 274-1]. The Debtors and Rocket do not dispute
that on April 25, 2025, they entered into the agreement attached as Exhibits 39 to the Debtors’
MPSJ and that those agreements are true and correct copies. [ECF Docs. 202-40; ECF Doc. 202-
1, ¶ 24; ECF Doc. 283]. The basic terms of the agreements are:
• On April 25, 2025, Kurt J. Crosby, on behalf of “Crosby Dredging, LLC,”
as well as several affiliated and non-affiliated business entities listed in
Addendum A/Exhibit A of the agreement, and as Guarantor, entered into an
“Agreement for the Purchase and Sale of Future Receipts” with Rocket for
the “purchase” of the Debtor’s “Future Receipts” in the amount of $2.76
million for and “in consideration for” receiving the “Purchase Price” of $2
million (the “Rocket MCA Agreement”). [ECF Doc. 202-40, at 6–7, 16,
19–20].
DISCUSSION
A. Summary Judgment Standard
A court grants summary judgment when the pleadings, discovery responses, and affidavits
show no genuine dispute as to any material fact and the evidence entitles the movant to judgment
as a matter of law. See FED. R. CIV. P. 56(a); FED R. BANKR. P. 7056; Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). No genuine dispute exists when “a rational trier of fact could not find
for the [nonmovant] based upon the record evidence before the court.” James by James v. Sadler,
909 F.2d 834, 837 (5th Cir. 1990) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)). In deciding a motion for summary judgment, “the judge’s function is not
[herself] to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In
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so doing, the Court views the facts and evidence in the light most favorable to the non-moving
party at all times. See Campo v. Allstate Ins. Co., 562 F.3d 751, 754 (5th Cir. 2009). “The
interpretation and enforcement of a contract are questions of law, not fact, and so are appropriately
dealt with at summary judgment.” Anadarko Petroleum Corp. v. Alt. Env’t Solutions, Inc., 169
F.4th 542, 548 (5th Cir. 2026) (citations omitted); see also Tekelec, Inc. v. Verint Sys., Inc., 708
F.3d 658, 664 (5th Cir. 2013) (“The interpretation of an unambiguous contract is a legal question
that can be properly decided on summary judgment.”).10
A party moving for summary judgment bears the initial burden of demonstrating the
absence of a genuine dispute of material fact. See Celotex, 477 U.S. at 317. Where the moving
party also bears the burden of proof at trial, it must “come forward with evidence which would
entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v.
Rally’s Inc., 939 F.2d 1257, 1264–65 (5th Cir. 1991) (internal quotations omitted). Where the
nonmoving party has the burden of proof at trial for a claim or defense, the moving party can show
that it is entitled to summary judgment by pointing to the absence of evidence supporting the
nonmoving party’s case. See Celotex, 477 U.S. at 325.
10 Rocket argues that the Debtors’ MPSJ is premature because it needs to conduct discovery on “the
actions of the Debtors in connection with confection, execution and prepetition performance under the MCA
agreements generally,” [ECF Doc. 287 & 268, at 5], but Rocket has not pointed to any ambiguous language
in the Rocket MCA Agreement that would require the consideration of extrinsic evidence here. Indeed,
“[u]nder New York law, when contract language is clear and unambiguous, contracts should be interpreted
based on the plain, non-technical meaning of the language of the agreement itself.” Musket Corp. v. Suncor
Energy (U.S.A.) Mkt’g, Inc., 759 F. App’x 280 290 (5th Cir. 2019) (citing New York cases). “Courts must
not consider extrinsic evidence to determine the parties’ intentions when contract language is clear.” Id.
(citation omitted). “Where a court can determine the parties’ intent from the face of the contract,
interpretation is a matter of law and the case is ripe for summary judgment.” Id. at 291 (internal quotations
and citation omitted). The Court finds that the language in the Rocket MCA Agreement is unambiguous;
therefore, any extrinsic evidence that Rocket would obtain through discovery would necessarily be an
immaterial fact with respect to the Debtors’ MPSJ, and thus would not defeat the Debtors’ MPSJ under Rule
56.
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B. Standards for Determining Whether a Purported Sale of Receivables Is a True
Sale or a Disguised Loan
Bankruptcy Courts have been tasked with classifying merchant cash advance agreements
as either true sales or disguised loans in a variety of contexts. See, e.g., Greenwich Retail Grp.
LLC v. Moby Capital, LLC (In re Greenwich Retail Grp. LLC), 677 B.R. 473 (Bankr. S.D.N.Y.
2026) (classifying MCA agreements in evaluating application of state usury law); Bircher v.
Funding Metrics, LLC (In re A Goodnight Sleepstore, Inc.), No. 17-03274, 2019 WL 342577, at
*3 (Bankr. E.D.N.C. Jan. 25, 2019) (classifying MCA agreements in evaluating application of
avoidance actions under 11 U.S.C. § 547 & 548); see also generally Kara J. Bruce, The Murky
Process of Characterizing Merchant Cash Advance Agreements, 42 BANKR. L. LETT. 4 (2022).
The parties here ask this Court to determine whether the Rocket MCA Agreement is a true sale as
it is identified on the face of the agreement, or whether the Court should recharacterize the
purported sale as a disguised loan based on the substance of the agreement for purposes of
determining whether the Crosby Accounts Receivable are property of the estate under 11 U.S.C.
§ 541(a).11
Property of the estate consists of “all legal or equitable interests of the debtor as of the
commencement of the case.” 11 U.S.C. § 541(a)(1). The parties executed the Rocket MCA
Agreement prepetition. If the Rocket MCA Agreement is a true sale of certain of the Crosby
Accounts Receivable, then the Debtors transferred their interests in those receivables prepetition
and did not have a “legal or equitable” interest in them as of the commencement of the case. In
11 Rocket asserts that the Court does not have the authority to issue a declaration on the Debtors’
recharacterization count because New York law does not recognize “affirmative, stand-alone claims for
recharacterization.” [ECF Doc. 268, at 8 (citing cases dealing with recharacterization in the context of New
York’s criminal usuary statute)]. The Court disagrees. The Court exercises here its subject-matter
jurisdiction to determine property of the estate under § 541 of the Bankruptcy Code which requires it to
characterize the Rocket MCA Agreement as either a true sale or a disguised loan.
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that case, those receivables are not property of the estate. If the Rocket MCA Agreement is a
disguised loan, however, the Debtors retained their interests in the receivables, making them
property of the estate under § 541(a)(1) of the Bankruptcy Code.
Generally, bankruptcy courts look to state law to determine the extent of a party’s interest
in property. See Butner v. United States, 440 U.S. 48, 54–55 (1979). The parties do not dispute
that their respective interests in certain of the Crosby Accounts Receivable under the Rocket MCA
Agreement are governed by New York law pursuant to choice-of-law provisions in the contract.
[ECF Docs. 201 & 283]. New York’s general rule of contract interpretation is that “agreements
are construed in accord with the parties’ intent and the best evidence of what parties to a written
agreement intend is what they say in their writing.” Donohue v. Cuomo, 38 N.Y.3d 1, 12 (2022)
(internal quotations and citation omitted). Indeed, “[w]here the terms of a contract are clear and
unambiguous, the intent of the parties must be found within the four corners of the contract, giving
a practical interpretation to the language employed and reading the contract as a whole.” Ellington
v. EMI Music, Inc., 21 N.E.3d 1000, 1003 (N.Y. 2014) (citations omitted).
When determining whether a contract evidences a sale or a loan, New York law requires
courts look to substance over form. See Adar Bays, LLC v. GeneSYS ID, Inc., 37 N.Y.3d 320, 334
(2021) (“When determining whether a transaction is a loan, substance—not form—controls.”
(citation omitted)); see also Butler Trucking LLC v. CashFloit, LLC (In re Butler Trucking LLC),
No. 25-3004, 2025 WL 1934205, at *5 (Bankr. N.D. Ohio July 14, 2025) (under New York law,
“courts do not rely solely on the form or labels used by the parties; rather, they scrutinize whether
the economic risk of ownership truly transferred to the purported buyer” (citing cases)).12 Courts
12 It is true that the plain language of the Rocket MCA Agreement describes the transaction as a “sale”:
• Paragraph 1. of the agreement entitled “SALE OF FUTURE RECEIPTS” states: “Seller,
identified above, in addition to any Seller attached to this agreement in Addendum A, hereby
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applying New York law have identified various non-exclusive hallmarks to evaluate whether a
purported sale of receivables is, in substance, a loan. In the context of evaluating a transaction
under usury law, one court found that “[u]nless a principal sum advanced is repayable absolutely,
the transaction is not a loan” and weighed three factors to determine 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 v. United Senior Props. of Olathe, LLC, 181 A.D.3d 664, 666
(N.Y. App. Div. 2d Dept. 2020) (citing cases). But those “three factors provide only a guide to
analysis.” Fleetwood Servs., LLC v. Ram Capital Funding, LLC, No. 20-CV-5120, 2022 WL
1997207, at *9 (S.D.N.Y. June 6, 2022). “They do not dictate the conclusion, and a court need not
find the presence of all three factors in concluding that a transaction is a loan.” Id. (citations
omitted). Similarly, to determine property of a debtor’s estate under § 541, another court weighed
eight other characteristics to decide whether a purported sale of receivables is actually a loan:
(1) Language of the documents and conduct of the parties;
(2) Recourse to the seller;
(3) Seller’s retention of servicing and commingling of proceeds;
(4) Purchaser’s failure to investigate the credit of the account debtor;
sells, assigns and transfers to RC, the Specified Percentage of its present and future accounts
receivable and proceeds . . . . [ECF 202-40, ¶ 1 ].
• Paragraph 2 of the agreement entitled “THIS AGREEMENT IS NOT A LOAN” states: “RC
and each Seller (together the “Parties”) intend and agree that the purchase and sale of the Future
Receipts by Seller is not, nor interpreted to be, a loan.” [ECF Doc. 202-40, ¶ 2].
But this Court is not bound by the language in the Rocket MCA Agreements labeling the transactions as
sales because under New York law, the characterization of a transaction as a true sale or a disguised loan
turns of the substance of the transaction rather than its form. See Adar Bays, LLC v. GeneSYS ID, Inc., 37
N.Y.3d 320, 334 (2021).
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(5) Seller’s right to excess collections;
(6) Purchaser’s right to alter pricing terms;
(7) Seller’s retention of right to alter or compromise unilaterally the terms of
the transferred assets; and
(8) Seller’s retention of right to repurchase assets.
In re R&J Pizza Corp., No. 14-43066, 2014 WL 12973408, at *3 (Bankr. E.D.N.Y. Oct. 14, 2014)
(citing Robert D. Aicher & William J. Fellerhoff, Characterization of a Transfer of Receivables as
a Sale or a Secured Loan Upon Bankruptcy of the Transferor, 65 AM. BANKR. L. J. 181, 186–94
(1991)); see also Cap Call, LLC v. Foster (In re Shoot the Moon, LLC), 635 B.R. 797, 813 (Bankr.
D. Mont. 2021) (weighing those hallmarks to determine whether a transaction was a true sale or
disguised loan under usury law and to resolve an avoidance action).
But courts have increasingly backed away from the mechanical application of any one set
of factors in favor of a flexible, totality-of-the-circumstances approach. As explained by Judge
Wiles:
[I]t ought to be clear (though sometimes it appears to be overlooked) that when a
court is asked to determine whether, in substance, a transaction was actually a sale
or a loan, the court should not begin and end its inquiry by considering only whether
the transaction has all of the ordinary characteristics of a loan. In deciding what
the substance of [a] transaction really is, a court must also consider whether the
transaction has the features one would expect to see in a sale. A court that does not
do so has only examined half of the relevant question.
Greenwich Retail Grp. LLC v. Moby Capital, LLC (In re Greenwich Retail Grp. LLC), 677 B.R.
473, 500 (Bankr. S.D.N.Y. 2026). “That said, a consideration that overlays and unites the factors
is how the parties allocated risk.” In re Shoot the Moon, LLC, 635 B.R. at 813. “A sale typically
occurs when the risk of loss from the purchased assets passes to the buyer—a gamble usually
reflected in the purchase price.” Id. at 813–14. “Conversely, in a disguised loan, the parties may
employ various methods to allocate risk—the putative seller typically remains exposed to the
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underlying receivables and may grant the putative buyer recourse to sources of recovery beyond
the receivables.” Id. at 814.
Thus, the root of the true-sale-versus-disguised-loan analysis is the transfer of risk. See
Haymount Urgent Care PC v. GoFund Advance, LLC, 609 F. Supp. 3d 237, 247 (S.D.N.Y. 2022).
But it is also important to distinguish the type of risk that is indicative of a true sale from the
ordinary credit risks that are borne by any lender. That the purported buyer is not guaranteed full
repayment under all conceivable circumstances is not sufficient to characterize a transaction as a
true sale because all loans come with at least some degree of risk that the lender will not receive
the benefit of the bargain. See In re Greenwich Retail Grp. LLC, 677 B.R. at 499 (“The risk that
a borrower might die or become insolvent, for example, is a risk that every lender takes . . . .”).
The relevant question is: Who is exposed to the direct risk of non-payment of the receivables?
“Where the lender has purchased the accounts receivable, the borrower’s debt is
extinguished and the lender’s risk with regard to the performance of the accounts
is direct, that is, the lender and not the borrower bears the risk of non-performance
by the account debtor.” However, where economic analysis reveals that “the
lender’s risk is derivative or secondary, that is, the borrower remains liable for the
debt and bears the risk of non-payment by the account debtor, while the lender only
bears the risk that the account debtor’s non-payment will leave the borrower unable
to [pay],” then there has not been a bona fide purchase of receivables and the
transaction is, in substance, a loan.
Haymount Urgent Care PC, 609 F. Supp. 3d at 247 (quoting Endico Potatoes, Inc. v. CIT
Grp./Factoring, Inc., 67 F. 3d 1063, 1069 (2d Cir. 1995)). Indeed, “parties who are not directly
exposed to market risk in the value of the underlying assets are likely to be lenders . . . .” Adar
Bays, LLC, 179 N.E.3d at 622 (citations omitted).
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C. Under New York Law, the Rocket MCA Agreement is a Disguised Loan.
1. The Debtors overwhelmingly bear the direct risk of non-payment of the
Crosby Accounts Receivables.
Several provisions in the Rocket MCA Agreement work together effectively to shield
Rocket from all risk that the purchased receivables may be uncollectible, placing that risk squarely
upon the Debtors. Under the Rocket MCA Agreement, Rocket purportedly purchased “Future
Receipts” generically identified as “present and future accounts receivable and proceeds therefrom
generated by Seller” [ECF Doc. 202-40, at 7]. Because the Rocket MCA Agreements identify no
particular revenue source, Rocket bore no actual risk of non-payment from any specific customer
of the Debtors. See Haymount Urgent Care PC v. GoFund Advance, LLC, 609 F. Supp. 3d 237,
249 (S.D.N.Y. 2022) (finding that non-specific receivables showed that purported risks of a buyer
did not actually exist). Indeed, the fact that no specific receivables are identified in the Rocket
MCA Agreement bears strongly on the question of risk because the Debtors’ obligation to repay
the purchase price is independent of the collectability of any particular receivable. Thus, the failure
to collect on any particular account never affects the amount Rocket is entitled to recover under
the Rocket MCA Agreement, so the direct risk of non-collectability remains with the Debtors.
Further, although ostensibly a sale of “Future Receipts,” Rocket’s collateral securing
performance is substantially broader than the receivables purchased. The Rocket MCA Agreement
provides:
As a security for the performance of all obligations, covenants and
agreements of Seller under this Agreement, Seller hereby pledges and grants
to RC priority security interest in and lien upon: (a) All accounts receivables
and receipts as defined in Article 9 of the Uniform Commercial Code (the
“UCC”), now or hereafter owned or acquired by Seller and (b) all proceeds
therefrom, as the term is defined in Article 9 of the UCC (together, the
“Collateral”). Seller agrees to execute any documents or take any action in
connection with this Agreement as RC deems necessary to perfect or maintain RC’s
security interest in the Collateral or to effectuate RC’s right of setoff. Seller hereby
authorizes RC to file any financing statements deemed necessary by RC to perfect
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or maintain RC’s security interest. Pursuant to Article 9 of the Uniform
Commercial Code, upon any Event of Default hereunder, RC has control over
and may direct the disposition of the Collateral, without further consent of
Seller. Upon any Event of Default hereunder, RC shall have the right, without
notice or demand of any kind, to notify account debtors of RC’s lien and collect
any amount owed to RC directly from the account debtors.
[ECF Doc. 202-40, at 11 (emphasis added)]. Although not as extensive as the security interests
discussed in In re Shoot The Moon and Fleetwood Services, LLC, Rocket’s security interest is still
substantially broader than the receivables purportedly purchased; the collateral description
includes “all accounts receivable and receipts,” which gives Rocket a security interest over
virtually all of the Debtors’ operating funds. “The fact that the documents contemplate a broad
security package for [Rocket] to generally collaterize payment obligations in indicative of a loan,
not a sale.” In re Shoot the Moon, LLC, 635 B.R. at 815.
The Rocket MCA Agreement also gives Rocket rights and recourse against property in
addition to its collateral. Indeed, the Rocket MCA Agreement gives Rocket direct access, control,
and authority to sweep funds from the Debtors’ bank account:
Seller shall deposit all of the Future [R]eceipts into the single business
banking account (the “Account”) acceptable to RC to obtain electronic fund transfer
services and/or “ACH” payments. Seller must instruct Seller’s credit card
processor, which must be approved by RC, “the “Processor”) to deposit all
payments card receipts of Seller into the Account. Seller shall provide RC
and/or its authorized agent with all of the information, authorizations, and
passwords necessary to verify each Seller’s receipts. Seller shall not change
any of the passwords without prior written consent from RC. Seller authorizes
RC to debit the Initial Remittance (or the Adjusted Initial Remittance amount,
if there was a Reconciliation, pursuant to Section A, Paragraph 3 above) from
the Account each business day/week/month by either electronic fund transfer
services and/or “ACH” payments.
[ECF Doc. 202-40, at 8–9 (emphasis added)]. The Rocket MCA Agreement also includes a
personal guarantee executed by Kurt J. Crosby, guaranteeing “the Seller’s performance of all the
covenants, representations and warranties made by the Seller to RC in the Agreement.” [ECF 202-
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40, at 17]. And upon the occurrence of an event of default,13 Rocket can choose from a host of
aggressive remedial provisions, including but not limited to those found in the section labeled
“Protections against Default” in the Rocket MCA Agreement:
The following protections may be invoked by RC immediately and without
notice to Seller if any Event of Default occurs.
(i) The full uncollected Purchase Amount plus all fees under section C (2)
and Section D (4) due under the Agreement.
(ii) RC may enforce the provisions of the Limited Personal Guaranty of
performance – Attached to this Agreement – against the Guarantor.
13 Under the Rocket MCA Agreement, an “Event of Default” occurs when:
(i) Seller or Guarantor violates any term, covenant, warranty, or condition in this
Agreement.
(ii) Seller intentionally with [sic] RC’s right to collect the Percentage Purchased;
(iii) Any representation or warranty by Seller in the Agreement shall prove to have been
incorrect, false or misleading in any material respect when made;
(iv) Seller notifies RC that it is unilaterally terminating the Agreement or Seller notifies
RC of Seller’s intent to breach the Agreement;
(v) Seller transfers or sells all or substantially all of its assets without the prior written
consent of RC. However, to be clear, (a) a bankruptcy filing or (b) if Seller goes out of
business in ordinary course, shall not be an event of default;
(vi) On five or more occasions, Seller fails to give RC advance notice that there will be
insufficient funds in the Account such that the ACH of the Estimate Payment will not be
honored by Seller’s bank, and has not requested a reconciliation in accordance with Section
A, Paragraph 3, and fails to reasonably respond to RC’s communications seeking to
ascertain the circumstances of the insufficient funds; and
(vii) Seller causes its account to stop allowing RC to withdraw the Initial Remittance from
the account and (a) Seller does not notify RC by email at info@rocketcapllc.com, within
two business days of a valid reason for causing the account to stop clearing payments, and
(b) Seller has not requested a Reconciliation (as defined in Section A, Paragraph 3).
(viii) Seller refuses to participate in a reconciliation to adjust the Adjusted Initial
Remittance pursuant to Section A paragraph 3.
(ix) Seller notifies RC that it is unable or unwilling to collect all or some of Seller’s receipts
that have been sold to RC pursuant to this Agreement and Seller Refuses to provide to RC
a list of Seller’s Account Debtors to intentionally hampers RC’s ability to Collect the
Percentage Purchased from the Account Debtors.
[ECF Doc. 202-40, 12-13].
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(iii) RC may enforce its security interest in the collateral under Section C
(1).
(iv) RC may proceed to protect and enforce its right and remedies by bringing a
legal action against Seller and Guarantor pursuant to the Agreement in
addition to any remedy available RC under the law or in equity. In said
action if judgment should be granted in favor for RC against Seller or
Guarantor, Seller and Guarantor shall be liable for RC’s costs of said action,
including but not limited to collection costs, reasonable attorneys’ fees, and
court costs.
(v) RC may debit Seller’s depository accounts wherever situated by means
of ACH debit or facsimile signature on a computer-generated check
drawn on Seller’s bank account or otherwise for all sums due to RC.
(vi) RC may notify Seller’s Account Debtors and request said Account Debtors
and to request said credit card processor to remit payments to RC for any
remaining balance under the Purchase Amount on behalf of seller.
[ECF Doc. 202-40, at 13 (emphasis added)].
A Debtor under a Rocket MCA Agreement could fail to fund one sweep of its account—
constituting an event of default, see supra note 13—and find itself subject to immediate
acceleration of the full amount of the transaction outstanding without notice. And if Rocket is
unable to recover its outstanding balance from the Debtors’ bank account, Rocket is entitled to
chase full repayment from Kurt Crosby as guarantor of the debt. Read in tandem, the provisions
of the Rocket MCA Agreement make it obvious that Rocket bore zero risk of a revenue shortfall
in the Debtors’ receivables; rather, the provisions are structured to ensure the Debtors’ absolute
payment obligation. “The repayment and remedy terms of the MCA agreements . . . operate in a
manner more akin to a standard, high interest-rate loan than to a genuine transfer of the risks
associated with specified receivables.” Haymount Urgent Care PC, 609 F. Supp.3d at 249.
The features of the Rocket MCA Agreement weigh in favor of finding the transactions to
be disguised loans. See In re Greenwich Retail Grp. LLC, 677 B.R. at 503–04; id. at 248–50. In
sum:
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Although none of these features is dispositive alone, their collective effect weighs
heavily in favor of characterizing the transactions as loans. As a whole, they
provide [Rocket] with at least conditional recourse and expanded legal rights
against [the Debtor] entities and the personal guarantors. Plus, they allocate great
risk to the [Debtor] counterparty while protecting [Rocket] with much more than
just the receivables. [Rocket’s] panoply of rights, remedies, and potential control
is highly unusual in the context of an asset sale. Such an overall arrangement is
consistent with a debtor-creditor relationship, not a seller-buyer relationship.
In re Shoot the Moon, 635 B.R. at 817.
2. On balance, other hallmarks of the Rocket MCA Agreements weigh in favor
of the Court’s conclusion that the agreements are disguised loans.
At first glance, the Rocket MCA Agreements appear to contain an indefinite term because
they require the Debtors to continue to pay regular, installment amounts until they have fully paid
the sum of “receivables” purportedly purchased. A contract with an indefinite term is suggestive
of a true sale. “A fixed term is typical of a loan, while an indefinite term of receiving a fixed
percentage of actual receipts may suggest that the lender has assumed the risk associated with the
receivables not being collected.” Lateral Recovery LLC v. Queen Funding, LLC, No. 21-9607,
2022 WL 2829913, at *6 (S.D.N.Y. July 20, 2022) (citing Fleetwood Servs., LLC v. Ram Capital
Funding, LLC, No. 20-CV-5120, 2022 WL 1997207, at *9 (S.D.N.Y. June 6, 2022)). But the
Rocket MCA Agreement has a de facto fixed term that can be calculated by dividing the amount
that the Debtors owe by the amount of daily payments. As discussed above, a failure to fund
Rocket’s sweeps of the Debtors’ account will not serve to indefinitely extend the term—it will only
result in an event of default and accelerate the term without notice. And as also made clear above,
Rocket assumes no risk for uncollected receivables. Thus, this factor weighs in favor of the Court
finding the Rocket MCA Agreements to be disguised loans.
Finally, Section A, Paragraph 3 of the Rocket MCA Agreement entitled “Reconciliation”
allows the Debtors to request Rocket to perform a reconciliation or accounting of sweeps taken
from the Debtors’ accounts with amounts owing under the agreement. [ECF Doc. 202-40, at 8
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(“To ensure that ROCKET CAPITAL has collected from Seller an amount that equals the
Percentage Purchased, Seller may give written notice to RC requesting that ROCKET CAPITAL
conduct a reconciliation to adjust the Initial Remittance amount to reflect the Seller’s actual past
and expected future receipts.”)]. Under the agreements, the Debtors may seek reconciliation an
unlimited number of times. See id. This reconciliation provision states that
“Seller shall provide RC with sufficient financial documentation and bank
statement so that RC can verify the actual receipts and complete the reconciliation.
RC shall complete each reconciliation within two business days after receipt of a
written or emailed request and accompanied by the documentation and information
required for it to calculate the accurate revenue amounts.”
Id.
Regardless of the outcome—as determined by Rocket—the amount owed by the Debtors
under the Rocket MCA Agreement is never reduced due to unforeseen adverse business
developments outside the Debtors’ control. Reconciliation may delay repayment (or accelerate it
if Rocket finds that the Debtors’ records are incorrect) but the reconciliation process does nothing
to shift the risk of uncollectible receivables from the Debtors.14 For that reason, the Court finds
that this particular reconciliation provision weighs in favor of a finding that the Rocket MCA
Agreements are not true sales, but rather disguised loans.
14 Arguably, the reconciliation process here is illusory; as discussed above, elsewhere in the Rocket
MCA Agreement, the failure to fund one sweep results in an irremediable infraction that would foreclose
any possibility of future reconciliation. Upon such an event of default, Rocket may employ any or all of
the “Protections Against Default” to ensure repayment under the Rocket MCA Agreements is accomplished.
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CONCLUSION
The Court thus concludes that the unambiguous terms of the Rocket MCA Agreement
substantively reveal the Debtors’ complete exposure to the direct risk of non-payment of Crosby
Accounts Receivables, making those agreements disguised loans under New York law. The Court
grants judgment as a matter of law in favor of the Debtors and against Rocket as to Counts I, III,
and IV of the Complaint.15 Accordingly,
IT IS ORDERED that the Debtors’ MPSJ is GRANTED IN PART as to Counts I, III,
and IV of the Complaint as against Rocket, and DENIED IN PART as to Count II of the Complaint
as against Rocket.
A separate judgment on the Complaint filed in the above-captioned Adversary Proceeding
consistent with this Memorandum Opinion and Order will be entered contemporaneously and in
accordance with Bankruptcy Rules 7054 and 9021.
New Orleans, Louisiana, June 18, 2026.
__________________________________________
MEREDITH S. GRABILL
UNITED STATES BANKRUPTCY JUDGE
15 The Debtors’ MPSJ seeks summary judgment on Counts I through IV of the Complaint “as against
those MCA Defendants identified in the Adversary Complaint,” [ECF Doc. 202], but Count II seeks relief
solely against the Defendants identified as “Customers” of the Debtors.
Because the Court finds the Rocket MCA Agreement to be a disguised loan, it need not address the
Debtors’ alternative argument that, even if the Rocket MCA Agreement is a true sale, the Debtors retain
residual and reversionary interests in the Crosby Accounts Receivable because the agreements only purport
to vest Rocket with a capped or fractional interest in those accounts receivable. [ECF Doc. 202, at 44].
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