Credit Applications - Part III
FRAMINGHAM.........A couple hire an attorney to negotiate a work out with the Internal Revenue Service. The Attorney convinces the IRS not to seize his client's wages but to accept a reasonable settlement. The happy clients then rewarded the attorney by stiffing him.
While crying poverty, the deadbeats purchase a new home for more than double the cost of their existing home.
Shortly after being retained by the attorney and after investigating the location of the deadbeats' new house, I brought suit. I obtained an ex parte bank attachment and after notice, obtained a real estate attachment.
The defendants answered disputing the amount of the debt. I then filed for summary judgment (a procedure of winning the case without the need for a trial). I won the case, obtained the execution and had the sheriff levy and suspend the sale of the deadbeats' house.
I rejected forcing a sheriff's sale because of the amount of mortgages ahead of my client's attachment. Instead, I filed a new complaint seeking to attach Mr. Deadbeat's wages.
Facing possible humiliation at work, the deadbeats agreed to pay the entire principal amount due with all accrued interest and court costs.
FRAMINGHAM.........A doctor hires a lawyer to help him buy a high tech company. Although promising to pay the attorney's bill, the doctor makes only sporadic payments. Before long, the good doctor became Dr. Deadbeat to the tune of $80,000.00.
The Attorney hired me to collect his money. I immediately sued. The District Court allowed my ex parte motion to attach Dr. Deadbeat's bank account and real estate. Although the bank attachment only caught a few hundred dollars, I attached Dr. Deadbeat's house that he owned with his wife as tenants by the entirety. Because of the tenancy by the entirety, I could attach, but could not sell the property.
One day after Dr. Deadbeat failed to file his answer within the time provided by court rules, I appeared in District Court and obtained a default and default judgment.
Knowing that I could not sell Dr. Deadbeat's house, I filed a Complaint on the Judgment in the Superior Court. I sought and obtained an injunction preventing Dr. Dead beat from receiving any money from his practice. The Court ordered him to pay all monies that he received from any source directly into escrow.
Dr. Deadbeat now worked for the sole benefit of my client. Two months went by without receiving any of the court ordered payments. I scheduled the deposition of the person most knowledgeable about Dr. Deadbeat's practice - - his former secretary.
She told me that Dr. Deadbeat had been putting monies that he received from his practice directly into his wife's account, violating the Court's order. The bank's records confirmed that he had put almost $15,000.00 into his wife's account.
Dr. Deadbeat filed for bankruptcy in a last ditch attempt to stiff my client. My tactics worked. Due to a little known provision of the Bankruptcy Code, the Bankruptcy Trustee could sell Dr. and Mrs. Deadbeat's home and apply Dr. Deadbeat's share to pay his creditors.
Trapped, Dr. Deadbeat's lawyer offered $10,000.00 now and another $10,000.00 paid over five years. We rejected the offer. Because of my aggressive negotiations, Dr. Deadbeat finally agreed to cough up almost $70,000.00 within sixty days, proving the old adage you can run but you can't hide!
Now this does not always happen, but it could happen for you. Armed with solid paperwork, an aggressive competent collection attorney who knows how to collect debts is a valuable ally in the battle for control of your money.
Credit Applications - Part III Part Three of a three part series on how to write a credit application with teeth
Before selling your goods to a customer or providing them with your services, you should take all steps possible to make sure that you will get paid. A signed credit application is essential. It could request, among other things, the following information:
- Name of Entity.
- Type of Entity
- Address of Entity.
- Whether it Owns or Rents the Premises.
- Name of Landlord.
- Banking Information with Account Numbers and Designation of Type of Accounts.
- Name and Address of Principal(s), Their Social Security Number and Date of Birth.
- Tax Identification Number of Entity.
- Whether the Principal's Own or Rent
- List of Authorized Personnel.
- Trade References.
- Rate of Interest.
- Payment of Attorneys Fees and Amount of Attorney's Fees.
- Forum/Venue Selection (Where suit must or can be brought).
- Personal Guarantee.
- Right to Investigate Accuracy of Data and Credit Information.
Which of these or other criteria that you require depends on both credit and sales assessment of risk. Use the credit application to help control your money. It is your first and may be your last chance before making the sale to control the terms and conditions of your commercial relationship.
Inclusion of these and other items may help you to sink your teeth into your customer before he takes a bite out of your bottom line. Attorney Cohen can review your credit application and personal guaranty to make sure that you have properly included these items and others in your credit application and personal guaranty. You can call him at 508 620-6900 or email him at amc.law@verizon.net.
In the world of debt collection litigation, the essence of the battle is control. At some point, some debtors either fail or neglect to pay. Some debtors do not pay because they are using you for creditor financing (using your money to purchase and pay for other materials from your competition).
Others do not pay because they simply want to spite you. Still others claim that they have no money. Fortunately, several statutes and court rules exist to help you collect from the Can Not Pays ("CANOPS") and the Will Not Pays ("WILLNOPS") of this world.
In your battle to regain control from your CANOPS and WILLNOPS, several weapons exist in your legal arsenal. These include, but are not limited to, bank attachments (discussed in Part One of this Newsletter), real estate attachments (discussed in Part Two), personal property attachments, keeper attachments and injunctions.
Injuctions
Injunctions are useful when a third party owes your debtor money. These are called reach and apply actions. In essence, the injunction requires the third party to pay you directly, thereby cutting the debtor out of the loop. However, obtaining an injunction is not easy and it always requires that you do not have any other ability to receive payment from the debtor.
In the Deadbeat Newswire story about Dr. Deadbeat, I successfully used a reach and apply injunction to prevent insurance companies from directly paying Dr. Deadbeat.
It is important to remember that just because you obtained an injunction, does not automatically entitle you to keep the asset you secured. Like any other prejudgment security, it merely evens the playing field. As with bank and real estate attachments, the role of prejudgment security is to help ensure that after you have won the battle, you win the war and now control your own money.
Shouldn't you use an attorney that other attorneys rely upon to collect their delinquent debts?
