This post is the second part of a two part series examining defenses to enforcement of personal guaranties in Florida. Part one identified successful defense to enforcement of a guaranty and can be found here. Part two seeks to analyze defenses that have been unsuccessfully asserted in defense of personal guaranty enforcement.
A personal guaranty is a contract signed by an individual wherein the guarantor affirms his or her personal obligation on a loan or some other debt obligation, such that if the original debtor becomes unable to pay the debt, the guarantor is personally liable for that debt and is legally responsible for its repayment. In a typical case, a President, CEO, or other officer signs a personal guaranty for the debts of his or her business and becomes personally liable for the debt if the business doesn’t pay it off. Florida case law demonstrates that a simple, but well-drafted personal guaranty that specifically enumerates the personal nature of the debt assurance is adequate to form a legal, binding personal guaranty. This Blog post seeks to identify successful defenses utilized in Florida case law to consider when drafting or seeking to enforce personal guarantees.
We are often asked, what, if any, existing legal right in collection does an aggrieved victim have against a defendant who was ordered to pay restitution in a preceding criminal action? In short, an aggrieved party that is either the State or named as a victim in a resulting criminal Restitution Order has an enforceable right to restitution identical to a judgment holder. Being the named victim in the Restitution Order directs the offender to pay restitution for this person’s benefit and the victim is allowed to enforce that right through the civil collection process. To perfect that right, a victim may do many things, including filing a Civil Restitution Lien to attach to property acquired by the offender after the Restitution Order is issued. This Lien lasts for twenty (20) years.
When a company enters into Chapter 11 bankruptcy, the purpose is to reorganize the business so it can manage existing debts and hopefully come out a healthier business. But operations do not stop the day bankruptcy is filed. The business keeps on running, which means expenses continue to accrue after […]
On September 25, 2013, Florida’s Second District Court of Appeal issued an opinion regarding a very familiar topic in Florida – a plaintiff’s standing to file and maintain a foreclosure action. In Focht vs. Wells Fargo Bank, the Second DCA upheld the long-established precedent that a plaintiff in a foreclosure action must prove that it had standing at the time it filed the foreclosure complaint in order to maintain the action. 2013 WL 5338048 (Fla. 2d DCA 2013). If plaintiff lacks standing at inception, the defendant can have the case dismissed via summary judgment proceedings. Id.
This Blog is Part X in a series of Blogs designed to provide business owners with a high-level overview of the legal process for collecting on past-due accounts receivables. Specifically, Part X focuses on the utilization of proceedings supplementary as a tool for satisfying the outstanding judgment balance owed by a judgment debtor.
This Blog is Part IX in a series of Blogs designed to provide business owners with a high-level overview of the legal process for collecting on past-due accounts receivables. Specifically, Part IX focuses on the ability of creditors to obtain a receiver over the debtor’s business and/or property as a method for satisfying the outstanding judgment balance.
Often times a creditor will find it difficult to collect on its judgment against the debtor, even when the creditor discovers that the debtor owns a business interest or owns other personal property
On August 14, 2013, Florida’s Second District Court of Appeal issued an opinion in the case of Regions Bank v. MDG Frank Helmerich, LLC, et al., that is of great benefit to Florida’s judgment creditors. In its opinion, the Second District held that a judgment creditor is entitled to post-judgment discovery on the judgment debtor’s assets held jointly with a spouse. Regions Bank v. MDG Frank Helmerich, LLC, et al., 2013 WL 4081005, 2 (Fla. 2d DCA 2013). That holding provides creditors with a greater net to cast in the hopes of locating assets that are nonexempt and can be used to satisfy the judgment balance.
This Blog is Part VIII in a series of Blogs designed to provide business owners with a high-level overview of the legal process for collecting on past-due accounts receivables. Specifically, Part VIII focuses on executing and levying on a debtor’s personal property as a method for creditors to satisfy an […]
When a person or business loans money to another person or business, it is usually the case that the creditor will require a security interest in the assets of the debtor. Often times, especially these days given the state of the economy in the past five years, the debtor will default on the loan, usually by failing to repay the funds in accordance with the terms of the agreement. Since the creditor has a security interest in debtor’s personal property, the creditor can simply walk in one day and take everything to satisfy the loan right? Not quite…