Tuesday, October 27, 2009

The Magic Tool of Swift and Successful Debt Collection
by Robert J. Allan and Edythe Huang

In our blog on September 25, Don't Chi Ku If You Don't Have To, we discussed the reoccurrence of Chinese sellers unable to collect accounts receivable from American buyers based on excuses of timeliness or non-conforming goods. In our story there is usually an American businessperson or entity taking advantage of the poor Chinese seller because of the seller’s cultural inclinations. The American buyer knows the Chinese seller is unfamiliar with the United States legal system and is culturally resistant to seeking the advice of legal counsel (although this is changing). The American buyer takes advantage of the Chinese seller by accepting goods but never paying on the premise the Chinese seller will not do anything about it.

We have already suggested seeking the advice of legal counsel; but there's more.

What can Counsel for the Chinese seller of goods do about the American buyer’s failure to pay for the goods?

The most powerful tool in our collections arsenal is the Prejudgment Writ of Attachment. In our experience, once a Right to Attach Order has been issued based on a Prejudgment Writ of Attachment, the debtor always wants to settle and is willing, if able, to pay at least a substantial portion of the outstanding debt.

In California, where Allan Law Group, our United States founding member is based, a Prejudgment Writ of Attachment allows commercial creditors with debts owed greater than US$500 to create commercial liens on the debtors' property before a Court issues a judgment. Typically, a Prejudgment Writ of Attachment is proper when the defendant may attempt to hide assets from the Court to prevent a debtor from transferring, encumbering, dissipating, or concealing assets available to satisfy the judgment. In order to obtain a Prejudgment Writ of Attachment, there must be an express or implied contract and a fixed or readily ascertainable amount which the creditor can and must show with "probable validity" the corporate debtor owes the creditor.

Ascertaining with certainty the amount owing is the most important fact and the most time consuming feature of the process. Although the statute seems somewhat vague when referring to a "fixed or readily ascertainable" amount it is not. The Court will only issue a Prejudgment Writ of Attachment if the amount claimed to be owing can be ascertained with certainty. Being off by a “penny” can prevent the Right to Attach Order from being issued. Remember, the Court is placing a lien on another "person's" property based on a claim, not a judgment and will not do so unless it is established to the Court’s satisfaction that a “sum certain” is probably due to the creditor by the debtor.

In order to obtain a Right to Attach Order, the creditor must first file a complaint, which is served by the usual means, on the debtor. Notice of the hearing on the Application for the Pre-judgment Writ of Attachment must be served with supporting declarations and supporting documents. At the hearing on the Application the creditor has the burden of proving the creditor’s right to attach general or specific property, that the creditor will likely prevail in the action with probable validity, and that the attachment is not sought for any other purpose but to secure the claim.

Before the Court orders a Right to Attach, the creditor must file a Bond or Undertaking, typically through an admitted surety insurer. This is done to protect the debtor in case the creditor does not win the suit.

The Court will issue a Right to Attach Order if the creditor has met its burden of proof. Once issued by the clerk of the Court, the order will allow the County Sheriffs or the United States Marshals Service to seize property of the debtor which is located in the jurisdiction of the Court. The property will be held until the trial is completed.

The Problem -- Most businesses cannot wait a year or longer to collect accounts receivable and survive.

The Solution -- Once a Right to Attach is ordered by the Court, the creditor's attorney should expect a call from the debtor's attorney. It is now time to settle.

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