Archive for September, 2014

Recovering Interest And Attorney’s Fees In South Carolina

Many people assume that if a person owes you money, they also owe you interest and attorney’s fees if you have to hire a lawyer to collect what is owed to you. This is not true.

In South Carolina, there are only two situations when you are entitled to recover interest and/or attorney’s fees in addition to the principal amount you are owed on a debt. The first situation is when you have a written contract with the other party; in other words, you cannot recover interest or attorney’s fees on an oral contract. If you want to recover interest, the contract must state that if payments are not made on time, interest at a specific rate will be charged on the unpaid balance. If you want to recover attorney’s fees, the contract must state specifically that if you have to hire a lawyer to collect the debt, the other party must pay your reasonable attorney’s fees. What are reasonable attorney’s fees is up to the court.

The second situation is where a statute allows attorney’s fees to the successful party in a lawsuit. One such statute is the Mechanic’s Lien statute (Section 29 – 5 – 10, et seq., SC Code), which allows parties who furnished labor or materials for the improvement of real estate to put a lien on the real estate if they are not paid.

Even if you have loaned a large amount of money to another person and have a written note from that person promising to repay the debt, unless the written note contains language specifically allowing you to recover interest and/or attorney’s fees, you cannot recover them.


South Carolina Is A Great Place To Be A Debtor

Different states have different rules when it comes to debt collections. Some states allow creditors to garnish a debtor’s wages to recover on judgments for things like credit card debt. In South Carolina, your wages can only be garnished for taxes and child support.

Also in our state, if you own and occupy a home, at present the first $56,000 of equity (per owner!) Is exempt from judgment creditors. In other words, if you and your spouse own a home that is worth $400,000 and you owe $300,000 to the bank on your mortgage, your home is protected from your creditors, because you and your wife have another $112,000 in exemptions on top of the amount you owe to the bank.

Some states allow creditors to assert a lien against a debtor’s bank account by serving a levy on the bank, without having to give notice to the debtor. Whatever the debtor has in the bank would be frozen and the creditor would be able to have that money paid over to it to apply toward the debt. Such is not the case in South Carolina. Before a creditor can get access to a bank account, a hearing (with advance notice to the debtor) must be held and a court order obtained to have the money paid toward the debt. Obviously, most debtors, once they receive notice that a hearing is coming, will clean out their bank accounts prior to the date of the hearing, so there will be nothing there for the creditor to get.

A judgment in South Carolina is only good for 10 years – after that it goes away. Some states allow creditors to renew judgments.

A judgment is still a good thing to have, but it does not guarantee that the creditor will get paid.


Who Is This LLC And Why Won’t He Pay My Bill? Or, Why You Should Try To Get A Personal Guarantee In Your Contracts.

Any business just starting out is wise to incorporate. There are many different forms of corporations, mostly distinguished by the particular tax advantages each form offers to the incorporators. One of the most common forms of incorporation for small businesses is the LLC or Limited Liability Company.

One advantage that all forms of incorporation share is that they normally shield the individuals who form the corporation from personal liability for the debts of the corporation. In other words, if Billy Joe and Bobbie Sue decide to go into business, they may form a small corporation, known as Take The Money And Run, LLC (hereafter, TTMR, LLC). If you are a vendor who sells goods or services to TTMR, (Let’s say your company’s name is Bobby Mac, Inc.), they will be more than happy to sign your credit application on behalf of the LLC. That way, if they should fail to pay you, your only recourse is against TTMR, LLC which, if Billy Joe and Bobbie Sue are smart, will have no assets. In other words, they (figuratively) run off to Mexico and you are stuck.

Understanding that we who are in business have the main goal of making sales of our services or products, we cannot always be sure that the new customers we are dealing with will be reliable in making payments. It is also impossible to be paid in advance in all circumstances. One way to try to protect yourself as a supplier is to require the owners of the corporation to personally guarantee the payment of the contract.

In our example above, it would be a matter of requiring Billy Joe and Bobbie Sue to personally guarantee (in writing) that you will be paid. That way, even if the LLC has no assets, you can pursue the owners to try to get paid – assuming of course that they have any assets from which you can recover. This is not always practical – no customer wants to sign a personal guarantee, and if you are in a competitive business and are desperate to make sales, you may have to accept some risk by accepting a signature on behalf of the LLC only.

The other key would be to observe your own credit limits – if your contract provides that TTMR has a $2000 credit limit, abide by it. Don’t let them get into you for $4000 or $5000 before you realize you aren’t getting paid.