Legal Question in Real Estate Law in California
Went out of business and defaulted on equipment lease. CIT was to take possession of equip., but has not yet taken possession ( I believe they never will). Now I have collections demanding payment of the balance. What do I do?
2 Answers from Attorneys
Negotiate a settlement or probably get sued, or file BK if appropriate.
Answering the question accurately and helpfully would really require more information, including whether this was a corporation, LLC, partnership or proprietorship; whether any distributions of money or property have been made to insiders (shareholders, partners, directors, officers, etc.), who has possession or custody of the equipment; the type of lease (finance vs. "operating"), the portability and versatility of the equipment; whether the equipment was installed in your business premises so that it might become fixtures; what other assets you have, whether the lease or your other obligations were personally guaranteed, and much more.
The most important caution is to avoid making any distributions of money or property to insiders before all the creditors are paid. Another high-ranking concern is personal liability for business debts, whether through guarantees, use of a general partnership, or opportunities for creditors to assert the alter-ego theory and pierce the corporate veil.
You'd probably have mentioned bankruptcy if the business had filed - and if it has not, doing so is worth considering. Also, consider dissolving the business entity through an appropriate filing with the Secretary of State in the jurisdiction of its organization. File final tax returns. Close accounts. Inform your insurance company.
Finally, CIT is an experienced and highly professional leasing and financial services company that has been doing this for 100 years. Certainly, there is a responsible individual with whom you can establish communications and work out the repatriation of the leased equipment, and I believe you need to have a paper trail showing them your efforts to communicate the fact that (a) the company is no longer in business, (b) it will not be making any more lease payments (if that's true, and true because the company has no money), and (c) if you don't come and get it soon, it ain't gonna be our fault if you can't get it later.
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