In trying economic times, keeping abreast of your accounts receivable can be even more problematic than usual.  Since a young age, we are all taught to be patient, but how patient should you be when it comes to your receivables.

 

There are two issues which are worth exploring.  The first is to determine whether there is any realistic chance of voluntary payment from your debtor.  There is no magic number, but statistically your chances of being paid diminish the older the debt becomes.  You can turn to a good partner like RTTP to help with your receivables problem.  Our collection department is adept at helping you manage your accounts receivable problems in today's challenging environment.

 

The other issue has to do with when you get paid.  Understanding your customer and his/her financial situation is very important.  Not only should you be concerned about being paid, but when you get paid as well.  Suppliers who are not paid in the ordinary course of business can sometimes be subject to a Preference Action in Bankruptcy Court.  If you get paid on an irregular basis, watch out.  If your customer is on the brink and pays you because of loyalty or pressure, but not in the ordinary course of business and later files for bankruptcy, your payment can be subject to recovery by the debtor in possession or trustee in Bankruptcy court.  There is a presumption that any payments made 90 days or more prior to the debtor filing for bankruptcy protection are preferences and therefore, payable back to the bankruptcy estate.

 

If you would like additional information, please contact Steve Taitz.

 

It may sound silly, but it is always a good idea to check your will.

 

Recently, this office had to probate a will where the estate did not name an alternate beneficiary.  The testator (the person who passed away) left everything to his wife.  Unfortunately, the will made no mention of what was to happen if the wife predeceased the husband, (which in this case is exactly what happened).  Rather than stating that in the event that my wife predeceases me, I leave my assets to (someone), the will was silent.

 

Accordingly, the testator's assets will now pass to his next of kin as if he had no will, according to New York State law. 

 

To review your Will, please contact Pete Roe.

 

Automatic renewal provisions of service, maintenance or repair contracts are almost invariably silent as to renewal notice provisions or requirements. Often the language is similar to the following:

 

 "Contract terms shall be automatically renewed for annual terms unless cancelled at end of contract, with sixty day prior written notice."

Such provisions have been under attack in many jurisdictions throughout the United States. In some States restrictions have been in place for many years. In others, only recently have local Legislatures given the same attention.

New York has had a mandatory notification requirement for many years. It is the obligation of the provider of the service contracted for to give notice to the party with whom it contracts that the agreement will automatically renew unless notice of termination is provided within the requirements of the contract. Failure to cancel will not result in automatic renewal unless notification of the right to cancel is provided in accordance with the statutory provision.

Section 5-903 of the New York General Obligations Law, enacted in 1961, renders applicable service, maintenance or repair contracts unenforceable as to automatic renewal:

"...unless the person furnishing the service, maintenance or repair, at least fifteen days and not more than thirty days previous to the time specified for serving such notice upon him, shall give to the person receiving the service, maintenance or repair written notice, served personally or by certified mail, calling the attention of that person to the existence of such provision in the contract."

 

Statutory notice provisions from consumer-oriented laws are now being applied to commercial contracts by the Judiciary. In the past, the courts have found unenforceable automatic renewal contracts involving numerous commercially-oriented services, where it was determined that notice of renewal was not provided in accordance with statute. The result, of course, may well be elimination of the potential for recovery.

One New York Judge wrote that Section 5-903 of the General Obligations Law was enacted to protect "small businessmen who unwittingly find themselves 'married' to self-renewing maintenance or service type contracts".

Statutory language and notice requirements vary from State to State. Conflict of laws issues and forum selection provisions give rise to other variables affecting the ability to recover.

 

Suffice it to say that the "Automatic Renewal" clause in many contracts may not be so automatic. Credit grantors would be well advised to bear that in mind. The prudent businessperson might include notice provisions in their agreements and provide appropriate, timely notice of renewal to fortify their position in the event litigation is needed to enforce such contracts.

© 2009 International Association of Commercial Collectors, Inc. (IACC).
All Rights Reserved. Reprinted with express permission of IACC.

Leslie Gore & Ronnie Spector

October 10, 2009

 

October 31, 2009

 

2009-2010 Season

starts November 20

 

If you have suffered an injury, contact Steve Taitz or Paula Wetstein to discuss your right of recovery.

Suppose you signed your Will many years ago. You left the original of your Will with the attorney who prepared it. You learn that the attorney has died and that the witnesses to the Will have died or cannot be located. At the time you signed your Will, there was no Witness Attestation Affidavit attached to the Will. Is your Will valid?

The answer is YES. However, to admit the Will to Probate as an "ancient document", three things must be proved:

First, the Will must be at least 20 years old;

Second, the Will must be taken from "a natural place of custody"; and

Third, the Will itself must be of "an unsuspicious nature".

So, to avoid unnecessary expense, you should review your Will, determine where the original Will is located, and determine whether it has been properly executed. In addition to the signature of the testator, two witnesses must sign, there must be an Attestation Clause, and there must be an Affidavit of Attesting Witnesses. The fact that there is an Attestation Clause gives great weight to the admission of the Will to probate. If your documents do not have these formalities, it is time to review and revise your Will. Many laws have changed and you should consult your attorney now.

Please remember to ask about the new New York State Power of Attorney form which became effective September 1, 2009. It is a complex document and needs to be reviewed carefully with your attorney.

Please contact Pete Roe for help with this issue.