Hello, Helix,
Collecting an account receivable can be a tiresome and sometimes
difficult process. As an attorney that has handled a large number of
collection cases on behalf of creditors such as yourself, let me
please suggest that you consider, strongly consider, having an
attorney familiar with “creditor collection law” handle this matter.
There is a lot of money at stake and someone with the right experience
in this matter can turn that receivable into a money judgment by a
court of law, and that judgment into cash much more quickly than many
alternatives, including many collection agencies.
First, though, it appears that you have to figure out whether you
will be filing suit in Virginia or in New York. Since the company is
in New York, and particularly if the company is “incorporated” (a
corporation or limited liability company) then you might be limited to
New York. If the buyer is not incorporated then you might be best
served by suing the owner in Virginia – at least if that is where you
think his/her assets are.
One other consideration is whether you sue only the company, or
sue both the company and the owner, claiming that they are jointly and
severally liable for the account to you.
But here is the key information:
The usual routine in a matter like this is to file a civil
complaint that alleges (1) breach of contract (for either a written or
oral contract); and (2) unjust enrichment (in case a court finds no
contract); and (3) account stated.
The trick is the account stated. An account stated is an
agreement between seller and buyer based upon prior transactions
between them with respect to the correctness of the account items and
balance due.
Once the seller sends the buyer an “account” (read this as
“invoice”) and the buyer holds that account without paying for an
unreasonable period of time without objecting to the invoice amount,
then the account becomes stated and becomes VERY difficult to dispute
in the court.
Here, the buyer appears to have impliedly agreed to pay the
amount due as reflected in your invoice when buyer received and
retained it without rejecting it or objecting to it within a
reasonable period of time. Under these circumstances, buyer was bound
to examine the invoice and raise any objections, and its silence is
deemed acquiescence and warrants enforcement of the implied agreement
to pay.
You will probably have to present an affidavit that the amount is
legitimate and this makes out the “prima facie case.”
If the buyer fails to rebut your statements by giving evidence of
the circumstances in his favor, you win.
For a general definition, see here:
http://dictionary.law.com/definition2.asp?selected=2304&bold=%7C%7C%7C%7C
I would suppose that an attorney would charge in the neighborhood
of $1000 to handle a case such as this, which compared to certain
alternatives (e.g. a collection agency) taking as much as one-third of
the amount collected would be a bargain.
Again, I would ask the attorney if they routinely practice
“creditor collection law” and get a fee estimate up front. If you
experience a problem finding such an attorney, contact your local
credit bureau and ask for a referral. They would routinely use such
law firms. Another referral source is your local or state bar
association.
Please click on the “CLARIFICATION” button if you have ANY
further questions; I will be more than happy to answer any follow-up
question that you may have.
Best of luck getting your money!!
Weisstho-ga
Search Strategy:
://www.google.com/search?sourceid=navclient&q=account+stated
Jim-Mar Corporation v. Aquatic Construction, Ltd., 195 A.D.2d 868; 600
N.Y.S.2d 790 (N.Y. App. Div. 1993). |
