Thursday, September 10, 2009

Attachment Issues

In the last eight years or so, many of you obtained a commercial loan to expand your business and, in some instances, to start one. Sadly, one of the contingencies I've had to deal with lately is what happens when the borrower becomes unable to pay.

Well, chances are you signed something called a "security agreement" as part of the many loan documents you executed when you obtained the loan. In the security agreement, you pledged something as collateral against the loan (you didn't think they would give you the money without some form of security, did you?). You can bet that the security was something important to the business, too - the inventory, the accounts receivable, the bank accounts. If you were fortunate enough to own the building you worked out of, the bank probably also took a mortgage against that.

So, now that the borrower can't pay, the lender has to go get the stuff. The lender will sue to foreclose but the lender can also seek to attach the collateral. Attachment is a procedure whereby the lender asks the Court to allow it the right to come take your collateral right now, while the lawsuit is going on, and hold on to it until the judgment is rendered (at which time it will either be returned to you or sold to pay the judgment against you). To make sure that someone isn't just messing around with you, the lender has to post a bond with the court when it takes your stuff for twice the value of the collateral.

I can tell you from personal observation of the process, there are few things more disruptive than having a moving van back up to a business and, under the watchful eye of the police, directing movers to take a business' inventory and accounting records.

For what it's worth, lenders are aware that seizing the collateral while you are viable means that you will be put out of business and, for that reason, they do not favor that option. They also don't like posting the bond. But, if they think you are done or are about to skip town, they will promptly move to attach the collateral.


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