Credit Applications Are Important Legal Documents

The role of credit applications in the credit and collections process was explained in an NACM teleconference Sept. 11, 2006, entitled, “Credit Applications Are Important Documents.” The presenter was Lynnette Warman of the Dallas-based law firm of Jenkens & Gilchrist.

Warman said that the credit application might serve several functions such as gathering pertinent company information, establishing a security interest, securing personal of corporate guarantees and establishing credit terms. “It’s important to get all the information you need from your customer,” Warman added; and advised getting the credit application completed with all the information it requests.

Some of the critical information she mentioned that should be obtained in a credit application included the legal name of the customer, legal names of the owners and manager and the street address of the customer—not a post office box. Warman stressed the importance of making sure the information is completely accurate. She recounted a Kansas State Supreme Court decision in March, where a company lost a security interest in a priority dispute because the first name of a principal of the debtor company was incorrectly spelled.

The organizational structure of the customer must be properly identified, she noted: whether it’s a sole proprietorship, a partnership, or an LLC can affect what actions for non-payment might be taken against it. “Each type of company has ramifications if you are trying to sue them for non-payment,” she said. She pointed out, for example, that if there is no personal guarantee from a corporation, there might be no recourse for non-payment. She also mentioned that with a sole proprietorship, one is able to sue the individual—as well as the business—for unpaid bills.

The information presented by a customer on a credit application should be verified. Warman noted that with the advent of the Internet, finding and verifying company information is easier: many Secretaries of State are now charging for corporate information they once provided for free, but it is more easily obtainable over the Internet. She also advised making sure all appropriate signatures are included on the credit application and that it is legible.

Stating in the credit application what court should have jurisdiction over any disputes has become more recognized by the courts, Warman said, and that it is important to also include that it is the customer’s responsibility to alert the creditor about any changes in its ability to pay. Any change in credit terms from the credit application should be sent out in the form of a written notice to the customer—and the credit application itself should be reviewed every couple of years to make sure it conforms to the latest requirements of relevant laws relating to business credit.

For information on future NACM teleconference subjects, go to NACM’s website at www.nacm.org, and put your cursor over the "education" circle at the top of the page, then scroll down to "teleconferences."

Source: NACM and Lynnette Warman

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