Most business and real estate attorneys assume that the statute of limitations on an oral contract is two years, and on a written contract is 4 years. These are boilerplate assumptions that can trap a businessperson or a landlord; they do not always hold true once we delve into the specifics of a case.
We recently represented a borrower in a foreclosure action brought by the lender bank where no payments had been made on the loan for over 4 years, without any remedial or collection action initiated by the lender. The loan had been bundled, sold and assigned several times and with no lender follow up for some unknown reason. The assumption on the part of the borrower was that passing the four-year mark changed the nature of the dispute. So we took a closer look to confirm whether the statute of limitations could serve as a possible defense. We found that not to be the case. The limitations period on a promissory note is 6 years rather than 4:
Pursuant to California Commercial Code Section 3118(a), an action to enforce an obligation of a party to pay a note payable at a definite time must be commenced within 6 years after the due date or dates stated in the note or, if a due date is accelerated, within 6 years after the accelerated due date.
This is another example of the trap waiting for both experienced and new attorneys faced with a statute of limitations issue, which can often be more complicated than realized at first glance. And this trap is contained not only in the California Code of Civil Procedure but in other statutes as well. This loan was a leftover from the days of the Great Recession when loans were bundled, sold and assigned to unsuspecting investors without proper due diligence by the investors and rating agencies, and were serviced by loan servicers with less than diligent follow up. We find it incredible that we continue to see cases involving these types of loans 11 years after the Great Recession hit in 2008.
As we start work in 2019 in earnest, the commercial leasing market remains very active. We find ourselves representing a number of commercial landlords and tenants in connection with long-term commercial leases. One area in which we are adding great value is in the examination of “boilerplate language” within a proposed agreement that actually needs customization to protect our clients’ interests.
Great Commercial Lease Agreements Contain No Boilerplate
Most recently we represented a well-established auto body shop that sold its business to a national auto body and collision repair chain. As part of that transaction, the new owners leased the building that our client, the seller, owned to become the client’s tenant. Continue reading →
We are often asked by credit managers in California if there are any additional credit approval criteria to consider when a proposed customer and credit applicant is an out-of-state (“foreign”) corporation. While each case is fact-specific, there are some general factors for credit managers to consider that uniquely apply to extending open account credit terms to foreign corporations doing business in California.
Co-ownership of properties is a very common financial arrangement in real estate. With two or more persons involved in a purchase, their combined buying power can expand the number of properties that they can pursue. One party involved may also provide a higher credit score or more substantial assets that could win better loan terms.
Co-ownership lowers the business risk for both partners because it becomes a shared risk, rather than one which must be borne by a single person. However, these are long-term business relationships (even those between family members), and time can change the motivations of the people involved. Indeed, one partner may decide they wish to exit, and has the legal right to do so (more on that below.) Much can go wrong in a co-ownership partnership, if the possibility of these future issues arising is not accounted for in the initial partnership agreement.
One of the most frustrating areas of maintaining a successful business is collecting on receivables. It has been said that “a sale to a customer is no more than a gift, until the payment for it has been collected and gets deposited in the bank.” Many businesses learn this truth the hard way, generating great sales and revenue, but suffering from terrible cash flow because payments due are not forthcoming in a timely manner.
Many businesses rely on a credit application for the terms and conditions of its sales to its customers. Often the credit application is the only document that the customer actually signs. Relying on invoices, purchase orders, bills of lading, delivery tickets and the like that are not signed by the customer in the ordinary course of business will not support an award of attorneys fees in the event of a collection action and judgment. This is true even though these documents may contain a prevailing party attorneys fees clause. Because the credit application is usually signed by the customer, however, the creditor/seller often successfully relies on the prevailing party attorneys fees clause in the signed credit application for an award of attorneys fees in the event of collection litigation and judgment.Continue reading →
It’s usually easier to buy an existing business than to start up your own. This is because everything is already in place, including a customer base. However, there are some things to look for when you buy a fully-operational business. Follow the tips listed below to give yourself a fair chance of success at converting someone else’s business into your own. Continue reading →
Signing a commercial lease is a significant commitment for most businesses. Whether negotiating or renewing a commercial lease, it can be difficult to determine the best lease term for your business. Many companies settle for a “standard” 5-year term, which may be appropriate. But there are factors to consider that could make a shorter or longer term more advantageous for your particular business. The information in this discussion may be useful helping you arrive at an appropriate lease term. However, if you’re still not sure, the best approach might be to consult with commercial leasing attorneys to advise you. Continue reading →
We live in a highly competitive business environment, which pits people against firms, and major corporations against small businesses. When negotiating transactions, individuals and companies must prevent unauthorized disclosure of their trade secrets and proprietary information, which is so vitally important in such a competitive business environment. One of the ways for professionals and firms to protect trade secrets and proprietary information when negotiating transactions is through a properly drafted Non-Disclosure Agreement (NDA). With an NDA, the parties to a transaction are prohibited from sharing with third parties trade secrets and proprietary information that is disclosed to them in connection with the negotiating and due diligence of a proposed transaction. Continue reading →
In the recent case of Wells Fargo Bank, National Association v. Weinberg, the Court set an important precedent that applies to the amendment of judgments to add individual debtors as alter egos of the corporation:
“The doctrine of res judicata1 did not bar the amendment of a judgment to add an alter ego2 as a judgment debtor, even if the issue of alter ego could have been raised earlier, as long as alter ego liability is a separate and distinct claim from the underlying action.”