Creditors come in two basic types: secured and unsecured. Although the amount of the debt may be the same, the remedies available to the creditor are very different. Secured creditors have a claim against a specific asset, whereas unsecured creditors do not.
Creditors can be unsecured or secured. An unsecured, or general, creditor has a general claim against a debtor--this claim is not secured by any particular asset of the debtor. An unsecured creditor has the weakest claim, which may go unpaid in a bankruptcy proceeding. However, an unsecured creditor may become a secured creditor after a lawsuit and judgment. A secured creditor, who has an interest (referred to as a lien) on a particular asset, can use the court system to seize the asset and to satisfy the debt. This clearly presents a significant risk for the business owner.
Unless the debtor is prudent and has taken measures to safeguard his assets, there is a risk that the creditors can seize assets and take your wealth. In order to know if your assets are at risk, it is imperative that you have an understanding of the different types of liens you may encounter as a small business owner:
Once we discuss the different types of liens, we'll then examine how creditors might seek to get your assets through these types of liens, and what you can do, as an individual and as a small business owner, to maximize your protection against those creditors. The strategies outlined will address a broad spectrum of topics, from forms of property ownership to structuring debt to minimize exposure.
As the name implies, consensual liens are those to which you voluntarily consent, as a result of a loan or other advance of credit. The property purchased secures the buyer's obligation to pay for the property. One common example is the residential mortgage: a home buyer consents to a bank taking a security interest in the home when a mortgage is obtained. Similarly, a security interest also is created when a car dealer arranges for financing for a car buyer. There are two broad classes of consensual liens:
Both types of consensual liens are usually non-possessory. This means that the creditor does not take or retain possession of the property; rather, the debtor takes, or retains, possession of the property. However, it's possible for either type of consensual lien to be possessory. In that case, the creditor takes possession of the collateral. A loan from a pawnbroker, for example, usually would create a possessory, non-purchase-money security interest lien in the collateral.
While this seems very straightforward, the type of debt can have a large impact on the creditor's rights if a debtor defaults. The rules vary from state to state, but characteristics of a debt are critical to understand if assets are to be protected. Issues include:
The other common types of liens are statutory liens and judgment liens.
In addition to consensual liens, there are many different types of liens that creditors can use to get at your assets to satisfy a debt. In certain circumstances, creditors obtain security interests by the operation of state (or federal) laws. These liens include:
Of the three types of liens (consensual, statutory and judgment,) the judgment lien is the most dangerous form, but one which the informed business owner may be able to eliminate. A judicial lien is created when a court grants a creditor an interest in the debtor's property, after a court judgment. Judgment liens can arise in a wide variety of circumstances--basically, any incident that can land you in court can end up generating a judgment lien.
For example, if you are driving negligently and injure someone in an accident, the injured person may to sue for damages. To the extent that your insurance doesn't cover the judgment, a judicial lien may be placed against the your property to secure payment of the claim to the injured party. A plaintiff who obtains a monetary judgment is termed a "judgment creditor." The defendant becomes a "judgment debtor." The judgment in the lawsuit provides the basis for the lien. If the debt is not paid, the judgment creditor can then seek to enforce (or execute) the judgment. This can be accomplished by garnishing wages, seizing a bank account, or placing a lien against the debtor's property. The lien is the first step by the judgment creditor in a process that will culminate in a sale of the attached property, to satisfy the judgment debt.
Any lien placed on the defendant's assets as a result of a court judgment is known as a judgment lien. If a lien were placed on a home, the judgment creditor could then seek to foreclose on the property, in the same way a mortgage holder such as a bank could foreclose if it were not paid. In this section, the term "judgment lien" is used in its strictest sense: a lien attributed to a court judgment, where the court judgment itself is the basis for the lien.
An example would be a plaintiff who is awarded a monetary judgment against a defendant in a lawsuit based on negligence, and who then is granted an order of attachment against the debtor's property. In contrast, this definition excludes a judgment based on a pre-existing lien (i.e., a prior consensual lien or statutory lien). Thus, for example, this definition would exclude a judgment in a mortgage foreclosure. This distinction is critically important in discerning what types of liens against exempt property can be eliminated.
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