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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.