FINANCIAL STATEMENTS: HOW AND WHY THEY ARE IMPORTANT

A. The value of a financial statement


A financial statement is the financial picture of a company at a particular point in time. It is exactly the same as taking a picture of your children. Within a few weeks, they changed, didn’t they? Within a month or so, there are generally significant changes, right? Within a year or two, your kids don’t look anything like they did a year ago. Well, financial statements are exactly the same. A current financial statement is the only good financial statement. An audited financial statement is better than an unaudited one. What am I talking about: a financial statement is the picture of assets and liabilities. An operating statement is the sales and profit/loss. Both are dated. For example, a financial statement may be dated December 31, 2006. That statement might be valuable to determine credit transactions for several months. An operating statement is over a span of time such as January 1, 2006 through December 31, 2006. Sales and profits for a year are posted. Again, audited financial statements are better than unaudited ones. Simply put, the audit carries the reputation of the certified public accounting firm that prepared it. Why aren’t all financial statements audited? Simply put, they are expensive.


B. The “useful” components of a financial statement when extending credit or assessing collectability.


For extending credit, a couple of ratios come to the forefront. First, the current ratio. The current ratio is current assets divided by current liabilities. If current liabilities exceed current assets, watch out. The ideal is current assets substantially in excess of current liabilities. What this means to you: the company has sufficient assets to cover its debts. Also, examine:


Quick ratio, which is quick assets divided by current liabilities. Quick assets are assets that are quick to liquidate such as cash, accounts receivables, certificates of deposit. Current assets which would not be included as quick assets would be slow moving inventory. Hopefully, quick assets are sufficient to cover current liabilities. What this means to you: the company has sufficient cash and receivables to cover its current liabilities which are all of its short term debt (debt which is less than a year old). Even here, there are problems. What if the accounts receivable are no longer collectible? Oh No.


Net working capital ratio is net working capital divided by total assets. The net working capital of a company is its current assets minus its current liabilities.


Don’t get carried away with these ratios. There are whole courses on studying financial statements such as that found at www.investopedia.com. There is a printable 74 page advanced financial statement analysis form available free, absolutely free, at that cite. Topics include Whose in Charge?, The System, Cash Flow, Earnings, Revenue, Working Capital, etc.


C. Popular Terms


If you looked up the phrase Cash Flow, you would get a thousand different definitions if you searched a thousand different web sites. Commonly speaking, cash flow is something that debtors say they don’t have enough of. The first step in generating cash flow is to create sales. Sales put the product out the door. Accounts receivable bring the money back in the door.


If the company is not generating sales, they can’t generate cash flow. If the company doesn’t collect its receivables, there is no cash flow either. Example: I have run into a number of construction companies which has done work for the Katrina Hurricane Relief in New Orleans. None of them have been paid a dime, according to their managers, and they thought they were working for the federal government (FEMA) and thought they would be paid right away. If you don’t collect your receivables, you might as well not sell your product.


Working capital is another popular phrase. Working capital is the money used to pay short term obligations, such as paying vendor bills. In that sense, it is just like cash flow: debtors always claim they don’t have enough working capital. Businesses which have heavily invested in fixed assets, long term debt, and inventory build up have a hard time generating a good level of working capital. Once again, we look at the quick asset ratio; they don’t have enough cash, receivables, certificates of deposits and other assets quickly liquid in order to satisfy debt which becomes due in 30 days such as vendor obligations.


Tons of Tips on Credit and Collections: THE book, Credit and Collections Kit

Real Stuff - No Fluff...

All my postings in this blog have been on topics of credit and collections, mostly collections.

Until this posting.

I just wanted to say "thank you" for your positive feedback...compliments.

Now back to your regularly scheduled programming!

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Steve Harms

Collection Law: Tips for an enforceable personal guaranty

Is there a personal guarantee in a situation where a corporate officer has signed it as agent of the corporation?


Consider a case where a document signed by the guarantor titled “GUARANTEE OF LEASE,”which identifies the signor as a “Guarantor” and it provides, in part: “IN CONSIDERATION of the making of the above lease by the Lessor….the undersigned….as a direct and primary obligation, guarantees, to the Lessor and any assignee….the prompt payment of rent.” It allows the creditor to proceed directly against the guarantor without first pursing the corporation.


The catch is that he signed it with his name followed by the word, “President”. This, argued the signor, created ambiguity and removes any personal liability (that is, he claims he was acting as “president” or an agent of his company which means he is NOT personally liable for payment of the document.)


This is actually a good argument under the Uniform Commercial Code. Our office has cautioned our clients for years not to allow a guarantor to sign in any capacity other than individually. In other words, don’t allow a personal guarantor to sign his name, then insert a comma and the word “president” or “vice president” or any such title which would tend to show he is acting as an agent rather than in his individual capacity.


The trial court, however, found in favor of the creditor by denying the agreement was at all ambiguous. The court found the word “president” appeared to be no more than a descriptive word of who the defendant was….and stated “Indeed, a corporate guarantee would have been meaningless, given that AFG was already bound as principal….Although a court may reform a contract to reflect the parties’ actual intent where the evidence clearly shows a meeting of the minds that was not properly expressed in the instrument...the trial court here properly enforced the contract as written, in accordance with its clear and unambiguous terms.”


So, we won that one for our client…but, to be honest, it could have gone the other way very easily! So, again, the lesson to be learned here is: don’t allow your personal guarantor to use a title after his name!










Tons more practical tips on CREDIT and COLLECTIONS!

Entering into Contracts: Make them complete and clear!

Business contracts are always the subject of much litigation. It seems that there is no such thing as a “bullet proof” contract or a contract which just can’t be interpreted more than one way.


So, when is this a problem? Well, to start with, any ambiguity in a contract is generally held to be the fault of the drafter (author) of that contract. Simply put, if there is a vague term in a contract, the courts will side against whoever wrote it!


That having been said, we can’t always adopt a philosophy of letting the “other guy” write up the business agreements we enter into for the simple reason he won’t include many of the terms or conditions we think are essential! So, we write contracts as best we can.


A recent Michigan case involved a contract between a manufacturer’s representative and the company he represented. The company made steel wheels for the automobile industry. Interestingly enough, the parties entered into a written contract which left out a very important term: how much commission the representative would earn on sales of the wheels!


After obtaining several lucrative contracts with Ford and Chrysler, the rep and the company couldn’t agree on a commission rate, and a law suit was started to establish one. Although the court did not leave the rep without a remedy, it did admonish both parties that this was really “an agreement to make an agreement” and therefore there was no contract!


The court did award damages in favor of the representative on other theories, but we are once again reminded to make sure our contracts are clear, easy to interpret, and contain the important terms!



One good thing the Uniform Commercial Code (UCC) does for us, is to fill in some essential terms such as delivery terms, and even a price term. Why wasn’t the UCC used by plaintiff manufacturer’s rep in the case cited above? Simple. The UCC only applies to the sale and leasing of goods, and a representative’s contract is really a service contract between a manufacturer and a representative.

Webinar on the Legal Process (collecting accounts through law suits)

Just a quick note: I'm presenting a webinar on May 4th for 90 minutes (copy available for download if you can't join us live), sponsored by the International Association of Commercial Collectors, at web site:
http://www.commercialcollector.com/scriptcontent/index.cfm

Why do attorneys request an affidavit to file suit?

Good question!  Attorneys ask for an affidavit to support the account when we file a collection suit in order to establish a case.  Simply put, the case requires the defendant (your debtor or former customer) to come forward with facts and a counter affidavit as part of his or her answer if they truly dispute the account and want to establish a valid defense to your collection law suit.prima facie prima facie

Essentially, the affidavit and the account ledger go together hand-in-hand to establish our case in court.  In fact , the combination of the affidavit and the account ledger is referred to as an , which legally means the defendant so far has not objected to the amount sued for.  While the burden of proof is always on the party bringing the suit (the plaintiff), the account stated case does present a strong case, and helps us test the debtor’s (the defendant) defenses.account stated

Can I go after the officers of a corporation that owes me or my company money?

Honestly, these are low percentage claims. Only in a very extreme or clear violation of law is a court going to give you a judgment against individual corporate officers through piercing the corporate veil, for example.

Client's often turn over claims against corporations to attorneys with expectations that the corporate officers will be held personally accountable for some "fraud" committed due to under capitalization or some perceived wrong doing. To some clients, ordinary non-payment of a debt is a wrong doing or "fraud".
 
Michigan courts basically follow the principal that only extraordinary circumstances justify a disregarding of the corporate entity.
Even if extraordinary circumstances exist, there are three requirements to pierce a corporate veil, 1) the corporation must be a mere instrumentality of another entity or individual; 2) the corporate entity must be used to commit fraud; 3) the plaintiff must have suffered some unjust loss or injury. Generally when you are talking piercing the corporate veil, you are looking at something like 1) corporation under capitalized; 2) separate books maintained; 3) separation between the individual and corporate finances; 4) corporation used to support fraud or illegality; 5) corporate formalities have been ignored and the company is a sham.
 
All of these elements are very difficult to prove to a court's satisfaction...for example, extensive financial information would have to be provided, which is usually not available for any number of reasons including a debtor's desire that the financial details somehow got lost!
 
When a corporation sells its assets to another corporation, the purchasing corporation is generally not liable for the debts and other liabilities of the seller. Although Michigan case law on successor liability is not extensive, a number of exceptions to the general rule have been recognized. A purchasing corporation is liable for the debts and liabilities of the seller where (1) the two corporations consolidate or merge to form a new corporation without making provision for the obligations of the selling corporation; (2) the purchasing corporation expressly or impliedly agrees to pay the debts of the selling corporation; (3) the new corporation merely continues the selling corporation; or (4) the sale is fraudulent and the property of the selling corporation can be followed to the purchasing corporation.

To determine actual intent for fraud, the court looks at certain badges such as 1) transfer of obligation to an insider; 2) debtor retained possession or control of property which was transferred after the transfer allegedly took place; 3) the transfer or obligation was disclosed or concealed; 4) before the transfer was made, the debtor had been sued or threatened with suit; 5) the transfer was of all the assets; 6) debtor absconded; 7) debtor removed or concealed assets.

Tips for Going to Court or Alternative Dispute Resolution (ADR) Hearings

If you plan on going to court on your case, either with a lawyer or on your own, these tips may help you prepare.  These tips apply to both formal court hearings and informal alternative dispute hearings.

* Gather your evidence:

          * Gather all documents that relate to the matter.

          * Gather written statements from witnesses familiar with the matter. If your ADR permits or requires live witness testimony, see if they’re available to testify.

*  Know your case:

          * Prepare a summary of your case. Stress the three or four major points of your case. Don’t read the summary at a hearing. You should be prepared to discuss the issues extemporaneously.

          * Know your case backwards and forwards. Even though you may not enjoy it, that also means learning the other side’s case as well as your own. You should understand your debtor’s claims and defenses, itemize them, study them, and be prepared to discuss each and every one of them in detail.

               *  Be professional:

                     * Keep emotions out of it. Be humble, calm, factual, and believable. That’s not to say you should come across as a robot. Take a look at your favorite legal drama and note some good examples of how to use emotion, voice, and dramatic technique to present your argument while remaining calm, rational, and professional. Maintain good eye contact with the mediator or arbitrator.

                    * Dress and behave professionally. That means both in your actions and your dress. Body language counts, and so do the clothes that you wear. You want to send the message that you take the proceeding seriously. 

                    * Expect to be interrupted. You shouldn’t expect to be able to present a rehearsed speech. Sometimes a mediator or arbitrator takes a very active role, questioning you and interrupting you to require further facts or explanation of your opinion. If you anticipate interruption it’s less likely that you’ll become flustered and more likely that you’ll present a great answer that helps win your case.

                    * Anticipate technical questions. If your case involves technical issues, such as whether a product you sold was properly designed, be prepared to answer highly technical questions. You may need to bring along a witness who’s totally versed on the technical side of the case.

They say that patience is a virtue, and that’s very true in court or alternative dispute resolution (ADR).  Have a dollar figure in mind, but resist the temptation to get to the bottom line too quickly. Just like in settlement negotiations, you usually shoot higher than your bottom line at first so you have room to negotiate downward. ADR works best when both sides accept that there’s room for compromise. If you decide to hold fast to 100 percent recovery as your bottom line, with no negotiation at all, then I’m afraid you’ll probably be disappointed.

Whether you use a professional collection agent or not, it is a good idea to learn the ropes.  Start with a smaller, simpler case, where not too much money’s at stake and the issues are well-defined. Get your feet wet with a case where the stakes are low, and figure out your comfort level (or that of the employee you assign to handle the proceedings).

Although you can handle your own case, you certainly don’t always have to. At times you may decide that you want professional assistance. If you’re involved in a formal arbitration, just as if you were in court, you need a solid understanding of arbitration procedure and the rules of evidence. A professional collection agency or collection attorney can provide assistance by

                           *  Drafting written versions of any agreements that result from the dispute resolution.

                           *  Helping to negotiate from the standpoint of a third party, reducing the effect of personal feelings or animosity that would interfere with negotiations or reaching an agreement.

                           *  Advising you, and suggesting to both sides, what a judge is likely to do based on the facts and issues raised by the parties.

Problems with Bad Checks

Although you’re filled with joy (and maybe a tiny bit of skepticism) when you hear “the check is in the mail,” you know that checks don’t always clear the bank. You must be diligent and monitor the flow of checks through your business. Everybody receives a bad check now and then, but how you handle it can make a big difference in your cash flow and bottom line.

Receiving a bad check isn’t a small infraction. It’s a major breakdown of the financial relationship and in your ability to trust your customer. Because the extension of credit is based on trust, bouncing a check goes to the core of the business relationship.

Communicate with your customer immediately upon receipt of a bounced check. Hang on the phone for 20 minutes if you have to or go knock on his door. Express in no uncertain terms that the check has to be replaced with real money within 24 hours or further action will be taken.

If your customer admits the check isn’t going to clear, even if you deposit it a second time, tell him, “I’ll have someone at your door this afternoon to pick up replacement cash or a cashier’s check. What time will it be ready?” Then contact an overnight courier and instruct it to pick up the cash or cashier’s check at the appointed time. When you employ a courier, a cashier’s check is preferable to cash.

Make sure you put out the word to your staff about the change in the customer’s credit status: Anybody who interacts with the offending customer, both at the sales desk and in the credit department, must know that the customer is on cash or its equivalent only.

When a customer makes good on a bad check, you may choose to be forgiving, but only the first time. A repeat offender should be notified that its checks will no longer be accepted. Restrict repeat offenders to cash, money orders, or cashier’s checks.

Stay tuned to this Blog for more detailed information in the future on handling different types of bad checks, including NSF, stop payment, closed account checks (or, if you need the information now, tune into the chapter on bad checks in Credit and Collections Kit for Dummies by clicking on the book cover at the bottom of this blog).