This article is Part Five in a seven-part series on how to structure sales and what to do when your customer fails to pay. You can find previous articles in this series here: Structuring Sales to Ensure Payment; Signs of Trouble Before Payment Default; Default by a Customer; Knowledge is Power and What to Consider When Non-Payment Leads to Litigation. Please subscribe to this blog by entering your email in the box on the left, or check back weekly for additional articles in the series.
You have obtained money judgment against your debtor, thus turning you into a "judgment creditor" and them into a "judgment debtor", and now it's time to convert that important piece of paper called a "certificate of judgment" into cash or something that can be reduced to cash. First, determine what assets are available to pay your judgment, then determine how to access them.
Analyze the Debtor's Assets
There are a number of sources of information about your judgment debtor's assets and financial situation, including the following:
• Examine financial statements that the judgment debtor provided during the course of your business relationship to identify available assets.
• If you subscribe to Dun and Bradstreet, obtain a Dun and Bradstreet report.
• Determine whether there are any legal actions pending against the judgment debtor, which may mean you will be in a race to recover assets, or whether the judgment debtor is suing someone, which may provide you a source of recovery. Most court clerks' records are available on line and are searchable by name. If you are concerned that your judgment debtor has filed for bankruptcy protection, contact the Bankruptcy Court clerk for the district where your business judgment debtor was incorporated or formed or has its principal place of business.
• If the debtor is a corporation it may be possible to pierce the corporate veil and recover against assets of stockholders.
• Determine if there has been a preferential transfer or a fraudulent transfer in violation of the governing state's law.
• Once you are a judgment creditor, you may also ask the court that issued your judgment to schedule a judgment debtor examination of the judgment debtor or a third party. This is an examination under oath with a court reporter at which a judgment creditor may ask the judgment creditor questions about their assets, liabilities, cash flow and expenses.
• Keep your ear to the ground. Competitors, clients, customers, neighboring businesses and co-defendants of the judgment debtor may be sources of information regarding who the debtor does business with, what accounts receivable are available or whether the judgment debtor is still in business or has formed a new business.