Protecting Your Receivables

Here is something I wrote after the residential housing bubble burst in order to help my clients protect themselves.  Over the last few months we have seen a size able up-tick in commercial clients having trouble getting paid, so I thought I would re-post it here.  Even though the Dallas local economy is “good” compared to other parts of the country I think right now you can’t be too cautious in protecting your business.

1) Require a Credit Application

Whether your clients are other businesses or individuals, if your client has an open account with you in which you are supplying a good or service prior to getting paid, you must first require a completed credit application. The credit application should include:

* Full legal name   
* Address   
* Social Security or Tax Identification Number

If your client fails to pay their account, your costs in collecting will be much lower if you have adequate information.

2) Require a Personal Guarantee

If you enter into contracts with other companies, you should always require a personal guarantee from the person acting as principle of the company. If your client fails to pay on the account, or otherwise breaches your contract, the principle is personally responsible to you as well as their company.

3) Receivable Turn-Around

Re-structure your companies billing cycle to issue invoices immediately or, at the very least, monthly. Also, shorten the due-date. Your companies accounting will operate much more smoothly without a 45 – 60 day lag in receivables. You will also be able to more accurately estimate your income for operating.  This also helps companies that can use Mechanic’s liens to recover money owed by being able to notify and file within the deadlines of the statutes.

Retainage Claims

*** UPDATE See Law Changes: http://www.kmdalegal.com/construction-law/law-changes-lien-waivers-and-retainage-notices/

Did you know that if you are having any retainage withheld from your draws that you are required to send an additional Retainage Notice?  This is generally ONE notice that gets sent out towards the beginning of the project that protects your rights to lien the retainage later down the line if the Owner or General Contractor fails to pay it.

Like the other Mechanic’s Lien laws, there are specific deadlines you must follow:

  • First Tier-Notice to the Owner by the 15th day of the second month following FIRST MONTH of delivery / work
  • Second and Below Tiers-Notice to the Owner and the General Contractor by the 15th day of the second month following FIRST MONTH of delivery / work.

It seems like lately, and in this declining economy, contractors are “writing off their retainage” more and more frequently.  They are having a harder time getting paid the retainage amounts.  If, you do not want to lose the right to your retainage (which, a lot of times, are quite large amounts), you have to follow the retainage statute.  If you are having any retainage withheld and are not sending a Retainage Notice letter at the beginning of the project, as set forth above, you are not protecting your rights to this money!

A lot of people don’t understand this portion of the mechanic’s lien law.  The best way I can explain it is that the “typical” mechanic’s lien notice letters are not practical for retainage funds that are withheld.  Because most contractors submit multiple payment applications, instead of sending a notice letter every month (because you won’t get paid on the retainage until the completion of the job which is past all bond or lien deadlines), the code allows you to simply send one letter at the beginning of the project to cover all the monies withheld for retainage.  Then, if for some reason you are not paid upon final completion, you can make a bond or mechanic’s lien claim for the retainage amounts AND you have already fulfilled your “notice letter” requirements pursuant to the Texas Property Code.

Without following these rules, you have basically given the GC your retainage. As a matter of fact, I know GCs in Lewisville that count on the fact that you aren’t going to get this right when you contract with them. This is how they are able to underbid city jobs time and time again. Does this sound familiar?

December Mechanic’s Lien Reminder

December Mechanic’s Lien Deadlines

Commercial Projects

1st Tiered Claimant:

Your notice letters are timely for work done any time after September 1, 2009.
Your mechanic’s liens are timely for work done any time after August 1, 2009.

2nd Tiered Claimant:
Your notice letters are timely for work done any time after October 1, 2009.
Your mechanic’s liens are timely for work done any time after September 1, 2009.

Residential Projects

For all Claimants:

Your notice letters are timely for work done any time after October 1, 2009.
Your mechanic’s liens are timely for work done any time after September 1, 2009.