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Why We Can’t Collect From A Defunct Company

posted on 2014-03-05 by Dean Kaplan

 

The chances of col­lect­ing on an invoice due from a com­pany that has ceased oper­at­ing are very slim. If the busi­ness was orga­nized as a cor­po­ra­tion or LLC (lim­ited lia­bil­ity com­pany) then only the busi­ness entity itself is liable for out­stand­ing invoices. If there are no assets remain­ing in the entity then the entity has no way to gen­er­ate cash to pay cred­i­tors. We call these enti­ties “defunct.”

It fre­quently requires sig­nif­i­cant effort to prove a com­pany is defunct. Web­sites can be active for a year or more after a com­pany ceases busi­nesses, as the web­site host­ing com­pany may not be aggres­sive in shut­ting down delin­quent cus­tomers. The company’s phone may be work­ing with voice mail for many months after oper­a­tions cease. Own­ers keep the phone ser­vice so they can get mes­sages they want but ignore ones that don’t ben­e­fit them, such as col­lec­tion calls and cus­tomer ser­vice requests. So just because the phone and web­site are still work­ing does not mean the com­pany is still operating.

At our col­lec­tion agency, we’ll do exten­sive research and field work to try to prove a com­pany is defunct before we give up on a claim. We look for alter­na­tive phone num­bers, addresses, and web addresses for the busi­ness and its own­ers. We call neigh­bor­ing busi­nesses and ask if they know if the tar­get busi­ness is still open. Usu­ally they con­firm our worst fears that it is closed, but occa­sion­ally we learn the busi­ness is still open. Then it is clear the phone is not answered and mes­sages are not returned when the topic is a past due amount. At that point we know we need to take an alter­na­tive approach in the debt col­lec­tion process.

If the company's phone is no longer in ser­vice, that usu­ally is a very bad sign. It is almost impos­si­ble to keep a busi­ness going if cus­tomers can­not reach a com­pany. If we con­firm a com­pany is closed it is usu­ally cost pro­hib­i­tive to con­firm that there are no assets remain­ing. Busi­ness own­ers are not oblig­ated to pro­vide finan­cial infor­ma­tion and rarely even respond to cred­i­tors after clos­ing their com­pany – they are focused on find­ing a new source of income. The only way to force the owner to pro­vide the infor­ma­tion is to file a law­suit, get a judg­ment, and con­duct a debtor exam. Given the cost of the legal process and the low like­li­hood of recov­ery, the return on invest­ment poten­tial is not high and our clients rarely can jus­tify this investment.

A com­pany that goes out of busi­ness is not oblig­ated to file bank­ruptcy. It typ­i­cally costs about $3,000 to hire an attor­ney to file bank­ruptcy. Most small busi­ness own­ers right­fully choose to not spend money just to offi­cially bank­rupt a com­pany as they don’t get any value for this expen­di­ture. In most cases we see, bank­ruptcy is only filed if the owner is also fil­ing for per­sonal bank­ruptcy pro­tec­tion or to deal with per­sonal lia­bil­ity related to tax penal­ties and interest.

For our col­lec­tion agency, well over half the claims we close with­out col­lect­ing are invoices due from defunct com­pa­nies. In 95% of these cases, the invoices were very old before they were turned over to us. Had third-party debt col­lec­tion started sooner there would been a much bet­ter chance of get­ting some recovery.

As explained in prior arti­cles on per­sonal lia­bil­ity and pierc­ing the cor­po­rate veil, there is a chance of col­lect­ing when the com­pany is defunct if an indi­vid­ual is legally liable. How­ever, in most cases where the busi­ness was the owner’s pri­mary source of income, their per­sonal finan­cial con­di­tion is prob­a­bly very poor. We often find it can take a cou­ple years before they bounce back finan­cially and we can then col­lect on their per­sonal oblig­a­tion. Thus, get­ting a per­sonal guar­anty can have value. But, the best way to avoid not get­ting paid by a defunct com­pany is to esca­late the col­lec­tion process sooner and get to them before they go out of business.




Piercing The Corporate Veil

posted on 2014-02-20 by Dean Kaplan

We frequently get asked by new clients about piercing the corporate veil on owner-operated companies that go out of business owing money. Everyone's heard about someone else piercing the veil to create personal liability for business debts and getting paid. These 'stories' make it sound simple and a highly effective method for debt collection.

 

Unfortunately, this is more myth than reality. The truth is that it is so expensive and uncertain to pierce the corporate veil that our clients rarely try.

 

 One of the main reasons small business owners incorporate or form an LLC (limited liability company) is to protect their personal assets from the liabilities that their companies create. This legal structure creates an entity separate from the individual. However, if the owner co-mingles their personal financial transactions with their company transactions, then you can argue that the company is not truly separate from the individual. If you prevail in court with this argument, you have pierced the corporate veil and the owner is now personally liable for the money the business owes creditors.

 

Many (or most?) small business owners will pay some personal expenses from the corporate account since they are using pre-tax dollars and the expense reduces their tax burden. Meals, memberships, family cell phones and gasoline purchases, and subscriptions are common deductions. Others get more aggressive, paying home utilities, credit card bills, and other home improvement expenses from the business banking accounts. This may be by design to lower tax liabilities, or simply sloppiness where the owner treats the business checking account as if it was their personal money.

 

 The problem in piercing the corporate veil is we don't know to what extent this co-mingling has occurred without getting to review all of the company's financial transactions.  As described in this article by attorney Paul Porvaznik, we usually cannot know if there are grounds to pierce the corporate veil until after we have a judgment and it may even require a separate lawsuit. After getting a judgment, a debtor examination can be scheduled where we look for evidence of co-mingling.  This can be easy if the debtor’s check register is available and the payees on checks are indicative of personal expenses.

 

But, it is rarely this simple.  Individuals have to be personally served to appear at debtor exams.  This can be difficult, requiring multiple postponements and sometime expensive stakeouts.  They frequently miss the exams so they have to be rescheduled multiple times, each one requiring personal service to notify of the examination time.  They do not always bring all the documentation, requiring more rescheduling and appearances.  (See our 5 minute video on the judgment collection process for more information).

 

If the check register does not clearly show co-mingling transactions, further investigation is required.  All the company’s financial records need to be obtained.  A professional needs to be hired to review the information and identify violating transactions. This could cost as little as $2,000 or more than $25,000 for larger owner-operated businesses.  All too often this process is stymied by the debtor claiming the records no longer exist.

 

If we are successful in getting evidence of co-mingling, we need to get back in front of the judge.  The case needs to be made that the co-mingling is sufficient to pierce the veil and create personal liability.  This means more court fees, hearings, and attorney time.  And even if we are successful, we still do not know if the business owner has personal assets available to pay off the judgment.  If the business was their primary source of income, they may be under severe financial distress for many years and therefore your judgment will not get collected.

 

Many debt collection litigation attorneys will not want to take cases like this on a pure contingency basis unless there is strong evidence of eventual success.  They know a lot of time and effort will be required and only a very small percentage of cases will result in piercing the veil AND finding personal assets that can be seized to pay the judgment.

 

At our commercial collection agency, we advise clients that if they want to try to pierce the corporate veil on marginal or difficult cases, they should be ready to spend a minimum of $10,000 and it could easily run $25,000 to $75,000 in complex cases where the debtor clearly has other personal and business interests that they are trying to protect.  And there is no guaranty of success in piercing the veil and/or ultimately collecting any money. Thus, this investment can only be justified when very large amounts are owed, the individual has personal assets available to pay the debt, and we have strong anecdotal suspicion of significant co-mingling. Since all of these conditions are rarely met when we are asked about piercing the veil, our clients rarely attempt it.

 

Recently I wrote about a simple personal guaranty that has frequently saved our client from significant losses. Despite all you may have heard about piercing the corporate veil, if you don't get a personal guaranty in advance, you probably won’t attempt to pierce the veil due to the cost and uncertainty.  If you want the business owner’s personal assets as a secondary source of repayment, get a personal guaranty.




What Do The CFPB, Wild West, And House Of Representatives Have In Common?

posted on 2014-02-13 by Martin Sher

There just might be a new Deputy in town! This past November, the House Financial Services Committee approved 6 bills that could possibly add sorely needed oversight and accountability to the Consumer Financial Protection Bureau (CFPB).

To date, it has been pretty much like the Wild West of regulation. The CFPB and its posse of 100s have been running roughshod from California to Florida to Maine, resembling a lynch mob looking for any culprit just happening to be in the financial services industry.

I’d say that they’ve found a culprit or 2 that needed to be lynched, but at what expense? How many people have been unnecessarily shot and wounded?  And, before the lynching, wouldn’t justice have been better served with a judge and/or a jury of some kind?

Well that may be a little facetious of a description, but maybe not.  Honestly, I feel certain that 98% of the people in the CFPB likely do a good job and try to do the right thing. That’s quite a coincidence, because 98% of the financial industry is also made up of good people that do a good job and try to do the right thing.

So thank goodness for consumers,  there is now a serious move to lasso some of the power from the CFPB and make sure it has appropriate oversight and accountability.

Out of the six bills passed, these three might be the most workable:

  1. The Responsible Consumer Financial Protection Regulation Act of 2013. This bill would establish a five person decision making commission.
  2. The Bureau of Consumer Financial Protection Accountability and Transparency Act of 2013. This bill would bring the responsibility of funding to Congress and away from the Federal Reserve.
  3. The Consumer Financial Protection Safety and Soundness Improvement Act of 2013. This bill would allow The Financial Stability Oversight Council to overrule the CFPB with a majority vote.

My hope is that the CFPB will handcuff the financial industry culprits, dispense the posse to go back to herding cattle, and set up a structure where the financial services industry can wake up all of the sleepy towns in the Wild West, and all of America.

####

Martin Sher, Co-CEO of AmSher Collection Agency and a past president of ACA International, is the author of the Collector’s Pledge. Hundreds of thousands of collectors all over the world have signed this unique document committing to treat people with dignity and respect. AmSher is known as the collection agency that collects with compassion.




KING CORDRAY OF CFPB–DON’T RESTRICT CREDIT TO PEOPLE WHO NEED IT MOST

posted on 2014-02-07 by Martin Sher

This morning I watched the 4 hour semi-annual Consumer Financial Protection Bureau (CFPB) report to the House Financial Services Committee. The CFPB is by far the most powerful and least accountable federal agency in the history of the United States. The CFPB’s only responsibility is to give a report twice a year to the committee.  However, the Committee has no real power over the CFPB. Absolutely none!

Representative Jeb Hensarling is the residing chair of the House Financial Services Committee.  In his opening remarks, Rep. Hensarling insinuated that Richard Cordray, Director of the CFPB, is not accountable to anyone.  He’s not accountable to the President of the United States, unless there’s just cause.  He’s not accountable to Congress because Congress doesn’t appropriate funds to the CFPB.  And the CFPB’s not accountable to the court system because of wording in the Dodd-Frank Act that created this powerful bureau.

Chairman Hensarling highlighted the fact that the rules that Richard Cordray makes will be the rules of a ruler, not rules of law. I have not met Richard Cordray.  I am sure he’s a fine, well-intentioned human being and will be a great ruler. But do we really want to have an agency with the power of a king?

I’m particularly concerned about the availability and extension of credit to honest, well-intentioned, hard-working Americans with low to medium incomes. Who’s looking out for them?  They need cars for transportation to work, suitable places to live such as manufactured housing, basic kitchen appliances like refrigerators and washing machines, furniture, and the necessities of life. This well-meaning group of people many times isn’t blessed with any savings. They often run into a problem and need a short-term loan to survive and pay critical bills.

I hope and pray that the CFPB, by its actions and rules, do not impede this group of worthy Americans access to credit.  I spent a good bit of my adult life servicing this group of people in a family furniture business.  Our target market was people with a lack of or damaged credit.  We extended them credit when no one else would.  We counseled with them, encouraged them, and helped them establish or reestablish their credit.

This improved their credit scores and opened up more credit alternatives for them.  It also helped them raise their standard of living. Who’s going to watch out and service this very large segment of the US population? Will Richard Cordray and his bureau overreact from the past financial fiasco and make it impossible for millions of Americans to have access to credit?  I hope not.

Rep. Hensarling set up a place on his website where people can go to share their negative experiences with the actions of the CFPB. I am very appreciative of this.

Unfortunately, the low or moderate income individuals and families who have or will be denied credit won’t be aware of why their credit is being denied. And most likely, they won’t be aware of this website.  That’s very unfortunate.

I encourage you to have your voice heard on how the CFPB has affected you or your business and visit The Committee of Financial Services website here to share your story.

####

Martin Sher, Co-CEO of AmSher Collection Agency and a past president of ACA International, is the author of the Collector’s Pledge. Hundreds of thousands of collectors all over the world have signed this unique document committing to treat people with dignity and respect. AmSher is known as the collection agency that collects with compassion.




Most Business Owners Are Not Personally Liable for a Company’s Debts

posted on 2013-12-30 by Dean Kaplan

If a business is organized as a corporation, limited liability company (LLC), or other type of separate legal entity, the owner is not liable for the debts of the business unless other conditions exist. For small businesses, the primary reason the owner took the time and expense to set up the separate legal entity was to prevent being personally liable for business debts.

Historically, when an individual started a business, such as a cobbler, blacksmith, or street vendor, the business and the person were one and the same.  These businesses are known as proprietorships, and in these cases, the owner is personally liable for all of the business's obligations.

As we all know, it takes money to start, grow and run a business.  The concept of corporations came out of the need to raise larger amounts of capital to fund larger businesses, which meant the need for multiple investors.  Since most investors were not actually involved in running the business, they wanted to limit their liability to the amount they invested.  When you buy a share of stock in Apple or IBM, the most you can lose is what you paid for the stock, regardless of how much money the corporation might owe to vendors and lenders.  The corporation is a stand-alone entity completely separate from the owners, managers, and employees, and therefore the owner is not liable for the business debt absent other circumstances. ,

There is some chance you can pierce the corporate veil to create personal liability as we explained in an earlier article.  Given that this can be an expensive and difficult process with uncertain results, it is not a great alternative in most cases.   

An individual is liable for a corporation's or LLC's debt if they provide a personal guaranty to the lender or vender.  This needs to be a written document specifically stating the individual is guaranteeing the obligation and then signed by the guarantor as an individual and not as an owner or officer of the company.  A personal guaranty can easily be included in a credit application.  An email or letter where the individual 'promises' you will get paid is not a valid personal guaranty and does not create personal liability. 

As a commercial collection agency specializing in large claims, we always prefer to have a personal guaranty.  It gives us more leverage to make our client’s invoices a higher priority regardless of the company’s financial situation.





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