Legal Aspects of Horse Management

 

LESSON FOUR

 

 

 

 

Collections, Dispute Resolution and Attorneys

 

 

 

Preventing Collection Problems

 

 

          The key to preventing collection problems is simple:  Run your business like a business!

 

 

The Importance of Invoices

 

          For many equine businesses, sending out bills is a hassle that seems like more trouble than it is worth.  The last thing a tired trainer wants to do after wrestling with problem horses all day is come home at night and log on to the computer.

         However, sending out invoices on a regular basis is well worth the time and effort.

         Primarily, invoices serve as a helpful reminder to your clients that they need to pay you.  In addition, in the event that you need to hire a collection agency or take your client to court to get paid, invoices also serve as a valuable record of what your client owed you and when.      Finally, professional-looking invoices that are promptly sent and free from errors enhance your business image.

         To save time and assist you with keeping good records, consider investing in bookkeeping software, such as Intuit’s QuickBooks, to help automate your recordkeeping and billing.  You may also want to consider hiring a small bookkeeping firm to provide this service for you at a reasonable price.

 

 

Make It Easy to Pay You

 

          A few small steps will help make it easy for your clients to pay you, and pay you on time.

         When sending out invoices, don’t forget to include the address for payment.  Even better, enclose a self-addressed stamped envelope – for less than a dollar per client per month, you can greatly increase your chances of being paid on time.  After all, which payment do you think your client will mail first – the one that goes in the convenient postage-paid envelope or the one where the client has to hunt around for an envelope and a stamp? 

          Horse people are notoriously cash-poor, so consider accepting credit cards.  For a relatively small monthly fee and small percentage of your payments received via credit card, you can make it convenient for your clients to pay you.  It is not necessary to invest in an expensive card-reading machine, as you may be able to enter and clear transactions online.  Check with your bank or see your bookkeeping software for details.

 

Bank on Getting Paid

 

          As you receive payments, deposit those payments immediately.   Allowing checks to languish uncashed in your desk drawer can result in nasty surprises when you go to cash those checks - in a matter of days, your client can close his account or allow funds to dwindle.

         If you are concerned that your client’s check may not clear, go directly to the bank upon which the check was written.  U.S. banks must honor a check presented for payment if the check was drawn on an account at that bank, even if the person presenting the check for payment does not have an account at that bank.  By going directly to the bank where the check was written, not only will you receive your funds more quickly from good checks, you will also find out immediately (and without service fees from your bank) if checks will bounce.  This practice is also useful if your client has given you a check that has already bounced – you can avoid the additional service charges that you would incur if you simply tried to re-deposit the check at your own bank.

         A note about bounced checks – you are NOT required to re-present any check for payment, no matter what your client might tell you.  Once a check has bounced, it has the same legal effect as your client not paying you at all.

 

         Example:  Big Thang requires each of his training clients to pay him the first and last month’s training and board up front.  Because of some negative experiences he has had with deadbeat clients, he makes a practice of immediately cashing these payment checks.  A fellow trainer warned him that Ruth Less, a well-known Quarter horse amateur owner competitor, was also well-known for the rubber quality of her checks.

         Ruth brings two colts in to Big for training and presents him with a large check written on Ruth’s Bank of America account.  Before Big does any work on the colts, he proceeds to the nearest Bank of America branch and tries to cash the check.  Sure enough, the clerk informs Big that there are insufficient funds in Ruth’s account.  Big calls Ruth and informs her that her check has bounced, and she begs him to present it again in a few days.  Being the savvy guy he is, Big refuses and instead insists that Ruth send him a cashier’s check via Fed Ex.  When the Fed Ex doesn’t arrive, he calls Ruth and tells her to send her shipper to pick up the horses.

         By taking Ruth’s check directly to her bank to be cashed, Big saved himself banking fees as well as weeks of providing training without being paid.

 

 

 

Why Equine Businesses Should Be More Like Landlords

 

 

         If you rent an apartment, you have to fill out an application, provide references and put down a deposit.  In contrast, boarding and training barns typically don’t require an application, credit check, references or deposit.  Consequently, equine businesses have no real idea of their clients’ creditworthiness, and they don’t have as many resources to draw upon when their clients don’t pay. 

         Requiring an application, whether for training, boarding or other services, provides a number of benefits to the equine business owner.   First and foremost, an application provides the business owner with contact information for prospective clients, such as their full names, addresses and phone numbers.  An application can also provide the consent and information necessary to run a credit check and call references, as well as data that can help you pursue a nonpaying client in the future. 

         At a minimum, an application should include the applicant’s full name, home and work addresses, home and work telephone numbers, cell phone and pager numbers, the horse’s name, age and breed, and a signature blank with date.  The beginning of a client relationship is the single best time to gather information – once you have entered into the relationship, the client no longer has as much incentive to provide you with the information you may need later.  If you plan to run a credit check, the application should include places to enter Social Security number and driver’s license number and state as well as a notation that the applicant consents to a credit check with a place for the applicant’s signature and date. 

         For references, ask for the name and telephone number of the last two facilities where the prospective client has boarded or trained.  A current facility may be inclined say anything to get rid of a problem client, but the previous facility has no such incentive and may be brutally honest.  You can also see if the prospective client has frequently changed barns or trainers – if they haven’t been happy anywhere else, they probably won’t be happy at your facility, and unhappy clients are bad for business.  Having vet and farrier references is also useful – if your client doesn’t have a regular farrier or vet, consider that a red flag.

In reviewing the application, note whether the addresses given by the prospective client are complete, and whether they match the address on the driver’s license.  If you do not plan to run a credit check, you can check a prospective client’s addresses for accuracy by using the Internet.   The website whitepages.com is especially helpful – you can find an address with a telephone number, a person’s name or a business name.

         Many deadbeat clients move a lot – they don’t pay their landlords any more reliably than they pay their trainers and boarding barns.   Consider multiple address changes within the past few years with no reasonable explanation to be a red flag.

         Credit checks can be invaluable tools well worth the modest processing fee.  If a prospective client hasn’t been paying their utility or phone bills, it is highly likely that they will not pay their board or training bills, so don’t be afraid to turn away prospective clients with bad credit.  Do not allow yourself to be swayed by pitiful explanations – you will hear similar heart-wrenching excuses when it comes time to collect your own bills.

         Deposits are among the very best tools you can use to ensure timely payment.  Not only do they encourage clients to provide you with the required notice before leaving your facility, they also serve as an easy remedy for nonpayment or contract breaches.  To avoid misunderstandings, make sure that your contract with your clients clearly specifies when deposits are refundable and when you get to keep the clients’ deposits.  To simplify your accounting and avoid any appearance of impropriety, open a separate business checking account and use it only for clients’ deposits.  When you withdraw a client deposit, keep a record of what you withdrew, when and why, then provide your client with a written, itemized record of the applicable charges.

         Equine businesses are often fearful that requiring protective measures such as credit checks and references will insult their clients and drive business away.  However, most of your clients are businesspeople themselves and will understand that these types of business practices are a necessity of the modern age.

         Your business requirements can even be part of a successful marketing plan.  For example, you can explain that you are requiring references to help ensure that your boarders will be happy with your facility and to screen out potential boarders who would not be a good fit with your existing clientele.  Similarly, you can explain that talking to your prospective training client’s previous trainer(s) is part of your process to help ensure their success in your program.  Applications, deposits and credit checks help ensure that prospective clients are committed to your training program, and that your boarding facility maintains a certain class of clientele. 

 

 

 

Late Fees and the Bottom Line

 

          If there are no consequences for paying late, all but the most honest and responsible clients will pay late.  Don’t hesitate to institute and enforce late payment policies. Most non-equine businesses impose a fixed fee for late payments and/or interest on past due balances – why should equine businesses be any different?  Credit card companies are aggressive about imposing late payment fees and interest for a reason – it’s just good business.  Not only does it encourage clients to pay on time, it also compensates the business for the delay in payment.

 

 

 

When Clients Don’t Pay

 

         Even if you follow all of these steps, you will still encounter some non-paying clients.  When you do not receive payment on time, acting quickly and following a routine process can help you collect.

 

Don’t Wait - Contact the Client

 

          If you don’t receive payment within two weeks of the payment due date, you should not hesitate to call your client.  Be polite and pleasant, merely state that you haven’t received payment and are calling to make sure that the client is happy with their service.  This early contact serves two purposes – it gives the client an opportunity to tell you if they are unhappy, and it also puts the client on notice that you expect them to pay on time.  Calling can be more effective than sending a letter, as it reminds the client that an actual person is impacted by their failure to pay.  However, if you cannot reach a client by phone, send a reminder notice by mail. 

 

Follow Up Promptly

 

          If your client tells you that the check is in the mail, and it doesn’t arrive, call back.  Keep a written record of your efforts to contact your client, as you may need those records later if you are forced to sue your client.

 

 

 

Resolving Disputes Outside of the Legal System

 

 

          If you are in the horse business, sooner or later, you will have a dispute, whether it is over unpaid board or a horse that didn’t turn out to be as advertised.  What should you do before you sue?

 

 

1.       Call the person or meet with them in person and try to work out the problem.  Calmly explain your perspective and focus on the facts, keeping your temper in check and avoiding accusations.  Come armed with some creative compromises and be prepared to negotiate instead of adopting a “my way or the highway approach.”

 

         Example:  Clara Clueless purchased an Arabian yearling over the Internet from Fly by Night Arabians.  The colt was advertised as a “stallion prospect” and he had bloodlines that Clara wanted to add to her herd.  Fly by Night sent Clara a video and the colt had a gorgeous stride.  She was in a hurry to get the colt so that she could start showing him, so she opted against a vet check and wired the money to Fly by Night.

The colt arrived and Clara had her vet examine him.  The vet exam revealed that only one of the colt’s testicles had descended – he would not be suitable for breeding and would have to be gelded.

         Clara was furious!  She dashed off an email to Fly by Night and accused them of cheating her.  Fly by Night responded that they had no idea about the colt’s problem and that Clara should have gotten a vet check before she bought the colt.  Two days later, Clara had calmed down, so she decided to call Fly by Night and try to work things out.  She really liked the colt, even if he needed to be a gelding, but she had paid for a stallion prospect.  After Clara outlined her position politely, Fly by Night agreed to pay for the colt to be gelded and agreed to refund a portion of the purchase price upon receipt of a statement from Clara’s veterinarian attesting that the colt had been gelded.

 

 

2.       If you are able to reach a compromise on the phone or in person, put the terms of that compromise in writing and send a copy to the other party immediately with a note saying that unless you hear from them by a certain date, you will assume that they have no issue with the compromise as you have stated it.  If you have extended what you believe to be a reasonable offer to the other party and they refuse your offer, consider outlining that offer in writing and sending it to them to give them another chance to think it over.  Include a deadline by which they must respond so that you are not left wondering whether they plan to take you up on your offer.  Be sure to send any written communications via a method that provides proof of delivery, such as Federal Express.

 

 

3.       If you are still unable to reach a compromise, consider hiring an attorney.  Your attorney can write the other party a letter outlining your position and give them a final opportunity to settle the dispute before legal proceedings begin.  This step may seem repetitive of your efforts, but it lets the other side know that you are serious enough about the matter to have hired an attorney.  Note that hiring an attorney does not require that you actually plan to sue anyone.  It can be very cost-effective to have an attorney spend a few hours negotiating on your behalf to reach an out-of-court settlement. Later in this lesson we will review guidelines on hiring an attorney.

 

 

 

Small Claims Court

 

 

          Contrary to popular opinion, small claims court can be an excellent and inexpensive tool to obtain payment from deadbeat clients.   However, be aware that the wheels of justice turn very slowly – it can take weeks or even months from the date you file your claim until your court hearing date- so do not wait to file your claim.

         Typically, you can file your claim where the client lives or where the contract was made (which is usually where you conduct your business).   As we discussed in Lesson Five, to avoid any disputes about where you can file suit, it is extremely convenient to have your contract specify what state’s law will apply to the contract and where any suits arising from the contract must be brought. 

         The dollar amount of claims that you can bring in small claims court varies from state to state, so check with your local small claims court to determine how much you can ask for as part of your case.  This limit is yet another reason not to waste any time in filing your claim – you don’t want the amount that your client owes you to exceed the small claims court limit.  Because regular civil court is far more costly than going to small claims court, it may make sense for you to file a small claims court claim even if the amount you are owed is more than the small claims limit.  You can ask only for the small claims limit rather than the full amount you are owed. 

          Note that although an attorney cannot actually speak for you in small claims court, you can hire an attorney to assist you in preparing your case.  Often, this is money well spent, because your attorney can make sure that you are following the court’s procedural requirements and that your case will make sense to the judge.  Most small claims courts have free advice services - ask them how to request reimbursement for attorneys’ fees and court costs. 

          At a minimum, here is what you will need to file a small claims court case. 

 

 

1.       The right forms.  Many courts post forms and other self-help information on the Internet, and you can also find these forms at the courthouse where small claims court is held.

 

 

2.       Contact information for the opposing party. The small claims court will require you to serve a copy of the complaint on the opposing party.   Ask the small claims court advice service about your options for proper service.  If you do not properly serve the opposing party, it can compromise your case.  Do not wait to start the process of serving the opposing party, because it may take weeks to locate and properly serve them.  Many small claims courts allow you to serve the complaint via certified mail, so if you have a valid mailing address for the opposing party, this method of service may work, and it is certainly much less expensive than hiring a process server.  However, many deadbeats are well aware that no good news ever arrives via certified mail, and consequently, they may avoid signing for a certified mail package.  If the opposing party does not sign for the letter, you will have to find another way to serve them with the complaint.  Ask the small claims advice service for a referral to a process server.  The process server will need to know where he or she can find the opposing party, so it is helpful to find as many potential addresses for the defendant as possible, such as a work address or a barn address.  Knowing the opposing party’s typical schedule is also helpful for the process server.

 

 

3.       A good description of your claim.  Your good recordkeeping practices will pay off in small claims court.  Your records can help prove when a contract was entered into, what services were provided and when, and the client’s payment record.  When describing your claim in the complaint, keep it simple and factual and assume that the person who will be reading your complaint knows absolutely nothing about horses.  Your complaint should read like a newspaper story and tell the who, when, what, where and why in chronological order.  Make copies of all relevant documents and emails, and check with the small claims court advice service to find out how to file them as part of your case.   Also check with the small claims court advice service about witnesses – whom you can call as a witness, and what procedure must be followed.

 

 

What to Expect in Small Claims

 

          After you file your complaint and serve the opposing party with the complaint, the small claims court will assign you a hearing date.  Once you have a hearing date, do everything possible to not change that date, because if you have to postpone the date, it will significantly delay your hearing.  The court will notify the opposing party of the hearing date. 

          Before you attend the hearing, gather all of your documents (see above re: filing them with the court) and prepare what you plan to say in court.  Practice your statement with your attorney, and if you do not have an attorney, practice with your family and friends and ask for their honest feedback.  Have your witnesses prepare their remarks and practice them, too.

          On the day of the hearing, plan plenty of time into your schedule to wait around for your case to be heard.  Don’t assume it will only take an hour and that you’ll be back at work by the afternoon.  Hearing times are often affected by what is happening in other cases being heard that day.   You will be far more relaxed if you have allowed plenty of time and are not in a hurry to be anywhere.  Make sure that your witnesses allow plenty of time as well, and remember that they are doing you a favor – compensate them for their time and gas mileage, and take them to lunch.    As previously discussed, your attorney will not be able to speak for you in court, but they can accompany you to the courthouse. 

         If the opposing party does not show up for the hearing, the court may enter a default judgment in your favor.  Be aware, however, that the opposing party can petition the court to set aside that judgment, so a default judgment does not always mean you have won your case.

          In small claims court, you will have a hearing before a judge in which you present your case and the opposing party presents his or her case.  In contrast to what you see on TV, the judge will not usually render his decision right away.  Instead, you will typically receive notice of the judge’s decision by mail a few weeks after the hearing.  If you win your case, the opposing party will generally have a deadline by which they must pay the judgment amount to you.  Depending upon the local rules of your small claims court, you and/or the opposing party may be able to appeal the judgment.

 

 

 

Collecting on Small Claims Court Judgments

 

 

         Before you even file your claim, check with the small claims court advice service to see what your options are for collecting on a judgment.   If you have something of value that belongs to the opposing party in your possession, such as a horse trailer, horses or tack, you may want to ask the court for an order allowing you to sell those items.  Check with the small claims advice service about when you can request such an order – sometimes, you can ask for that order as part of your initial case.

         If the opposing party doesn’t pay a court judgment, it is extremely helpful to have additional data, such as their bank account information, the address where they work and the address where they keep their horses (if they are not still on your property).  With the opposing party’s work address, you can typically garnish the opposing party’s wages.  Garnishment is typically an extremely effective method of collecting your judgment. It is embarrassing to have your employer receive a notice that you haven’t complied with a court order, and employers are legally required to comply with a garnishment order, so it is very likely that you will receive payment unless the opposing party’s employment is terminated.

 

 

 

Liens and Abandoned Property

 

 

          One of the most common misconceptions about the horse business is that boarding stables and other equine service providers automatically have a lien on the horses and property in their possession.  The reality is that each state has its own laws regarding what are commonly known as “stablemen’s liens” or “agisters’ liens.”  Some states provide for an automatic lien and some do not, so you will need to determine the law of the state where you conduct your business.  Because misconceptions about liens are so common, you should not rely on your fellow horsemen’s opinions.  This area is one where it makes sense to either look up the law yourself or consult an equine attorney in your state.   Many attorneys give free initial consultations, and they may be willing to answer this simple question for you at no charge. 

         Note that you should find out what liens you might have BEFORE you need to use those liens!  This step is important not only for your own knowledge about whether you have a lien or not, but also because some state lien laws may require you to take steps to perfect your lien.  For example, many states provide that equine service providers only have a lien on the animals in their possession.  This distinction is important, because you may need to take steps, such as locking gates, to prevent horses or other property from leaving your facility until you are paid.   Knowing your lien rights is also essential to drafting a good contract for your services – see Lesson Five. 

         Knowing your state’s lien laws is also helpful when horses and other property are abandoned at your facility.  How do you determine when property has been abandoned?  How long can you wait until you sell or give away the horses or items left at your place?  Again, most states have laws regarding abandoned property than answer these questions.  If you sell or give away property before the law permits you to do so, the property owner can sue you for what is known as “conversion” – treating property left in your care as though it were your own property.   This turn of events may seem really unfair, especially if the property owner has left you with a large outstanding bill, but the laws are designed to protect property owners from unscrupulous service providers.

 

 

 

Alternative Dispute Resolution

 

 

          Because of the cost and waiting time associated with modern litigation, the popularity of alternative dispute resolution (ADR) has increased greatly.  ADR includes mediation, where a neutral third party, usually an attorney, will mediate the dispute between the parties and coach them to negotiating a settlement.

         ADR also includes arbitration, in which the parties select a neutral third party, often a retired judge, to hear the facts of the case and render a decision.  Mediation is typically non-binding and does not prevent the parties from filing a lawsuit if they fail to reach an agreement.  In contrast, the parties can (but are not required to) contractually agree that an arbitration will be binding, meaning that they will lose their rights to bring suit in the matter.

 

 

 

When and How to Hire an Attorney

 

 

          You need to hire a lawyer as soon as possible if you are ever sued, arrested, or served with a notice from a government agency (such as a zoning violation).  In addition, you should strongly consider hiring an attorney to draft the form contracts for your business and customized contracts for any complex transactions that you enter into.  Finally, if you think you need to sue someone, you should contact an attorney rather than trying to handle the matter on your own.

          Now that you’ve decided to hire an attorney, how do you find the right attorney?  Attorneys are typically rather specialized and deal only with matters that relate to a certain subject matter area, such as criminal defense, personal injury, real estate, trusts and estates or medical malpractice.  Accordingly, consider what your case or matter is about before you start looking.  The attorney who can do the best and most cost-effective job for you is the one whose typical practice looks the most like your own matter.

          The single best source for finding a good attorney is often friends who have had similar matters.  If you operate a boarding stable and need legal advice to evict a troublesome boarder, ask around among your contacts who also run boarding stables.  Another good source is a broad Internet search – you can type in the key words about your matter and see what attorneys’ web sites pop up.  For example, if you need a boarding contract, you might search for “boarding contract” and “attorney.”  There are numerous online attorney directories, but one of the most comprehensive is Martindale-Hubbell (www.martindale.com), where you can search by attorney name, location, law firm, specialty and other criteria.  Finally, your local bar association may have a referral service that you can call.  If your matter is horse-related, finding an attorney familiar with horses will be helpful to you.

          How do you screen potential attorneys?  The first step is to make sure that they are licensed to practice in your state.  Most states now have their bar association membership directory posted on the Internet and you can conduct a name search to see whether your attorney is listed and whether they have had any disciplinary actions filed against them.  Once you have determined that the attorney is licensed in your state and has a clean disciplinary record, you can interview them a bit – ask them where they went to school, how long they have been practicing and how many years they have been practicing in this field.  You can also ask them what experience they have that is directly relevant to your case – perhaps they represent numerous boarding stables and/or are horse owners themselves.  Trust your instincts – if your attorney seems somewhat evasive or irritated at your questions, you should choose another attorney.  Definitely choose another attorney if you can’t get the attorney to talk with you briefly about your case before you make a decision to hire them.  Finally, don’t be afraid to “Google” them by searching their name online – it can yield a wealth of interesting information.

          Once you have found an attorney you would like to hire, ask them for a cost estimate.  Most attorneys charge a fixed hourly rate and expect prompt reimbursement for expenses such as copying, long-distance telephone calls and court filing fees.  Some attorneys also offer certain services at fixed prices.   A few attorneys will take cases on a contingency basis, which means that they are paid a percentage of your proceeds if you win your case.  Regardless of your attorney’s billing practices, make sure that you understand how much you can expect to pay before you hire the attorney.

          Before beginning work, attorneys typically ask their clients to sign what is commonly called an engagement letter, which is essentially your contract with your attorney.  The engagement letter will describe generally what services your attorney will provide and what rates you can expect to pay.  If you don’t understand any portions of the engagement letter, do not be afraid to ask your attorney to explain them.

          Most attorneys who work on an hourly basis will require you to pay them a retainer.  There are two types of retainers – one type is essentially a deposit that will be applied to your invoices as they come due, and the other type of retainer is a non-refundable fee that you pay to have the attorney take you on as a client.  Accordingly, make sure you understand which type of retainer is required.

 

 

 

How to Minimize Your Legal Bills

 

          In addition to determining at the outset what you can expect to pay your attorney, there are certain other key steps that you can take to reduce your legal bills.  For starters, organize all of your records pertaining to your case before you send them to your attorney.  If you have a dispute, prepare a chronological timeline for the attorney that shows what happened when and attach documents that are relevant to those events.  You should pay for your attorney to read the evidence that you have gathered, not to assemble it and organize it. 

          You can also keep your communications organized, short and to the point.  Many clients feel the need to pick up the phone, but often email communication is more efficient, because you can figure out what you want to say without your attorney’s time clock running, and you can avoid paying your attorney for chit-chat.  Busy attorneys are frequently on the phone all day, so often an email will receive a quicker response.   Not only that, you will have a record of what you discussed with your attorney, so if you need to refresh your memory later, you can refer back to the emails.  If you need to call your attorney, the best times are often right before his or her office opens, at lunchtime and after their office closes.  At those times, office staff is frequently not around and attorneys may answer their own phones.

          Finally, don’t be afraid to ask your attorney what you can do to make his or her job easier and keep your costs down.  Perhaps there are records you can pull and send to him, or addresses that you can look up on your own.  Save your legal budget for the things that you really need an attorney to do, such as drafting pleadings or contracts.

 

 

Click here to take the Quiz