Limited Liability Company or S Corp?

Most business owners recognize the value in setting up their business as a corporation or limited liability company. The main value of either form of entity is the potential protection from personal liability for the debts and liabilities of the company. This can be a huge advantage. Along with adequate insurance, this is the obvious and easiest way to limit your personal liability as a business owner.

But small business owners are often confused by the choice between a limited liability company or an S corporation.

The trend in Texas for the small business owner is towards using the limited liability company. Limited liability companies are more flexible in who can be an owner and can be easier to operate. There are a few less forms to fill out.

But one size does not fit all. In some instances, the S corporation still offers a tax advantage that makes it a better choice.

I don't give advice on this issue until after I have carefully interviewed a client to determine which form of entity is going to be the best fit and have the best tax advantages. Which form is best for you depends on your facts and circumstances.

But in general, for a small family owned and operated business, with no outside investors, I still favor the S corporation because of the potential savings in payroll taxes on the owner's salaries. In contrast, if there will be outside investors or owners who do not work for the company, I favor the limited liability company.

Speaking of investors, quite a number of small business people don't realize that offering to sell investors an interest in your company may get you in trouble for violating securities laws if it is not done correctly. This is where a lawyer's advice and guidance is important.

There are lots of do-it-yourself websites that will sell you some forms for incorporation, but none of them are going to help you with securities law or offer you any legal advice on how to properly maintain your corporation or limited liability company.

These on-line incorporation services charge too much for what little they offer. Finding and filling out the forms is the easy part. If all you want is forms, get them for free from the Texas Secretary of State's website. Don't waste your money paying some so-called legal website $149 for some forms you could have gotten for free.

It is the legal knowledge, experience, advice, professionalism and service that you are paying for when you hire a lawyer to help you start a business. You can't get that from an on-line incorporation service.

I offer a low, discounted flat fee to clients who hire me to help them start a corporation or limited liability company.

-Have you been sued (or threatened with suit) for an old credit card debt?

-Have you been sued by someone other than the original creditor?

-Sued by some company with an odd sounding name like AIS Services, CACH, Credigy, Commonwealth, Dodeka or Unifund?

-Is the debt past the statute of limitations?

-Did you already pay off or settle the debt and still they are suing you?

-Are they harassing you?

I have helped a lot of people with these cases. The usual outcome is that I get the case dismissed. Sometimes I can even recover your attorney's fees and damages.

Part One: About me

Civil litigation is a major part of my law practice. My clients tend to be small businesses, but I also represent individuals. I have been an attorney since 1995. I have successfully defended people against many credit card cases.

www.creditdefenselaw.com

Part Two: The Statute of Limitations Defense

There are time limits on filing a lawsuit. These are called "statute of limitations." Under Texas law, the statute of limitations on credit card debt is four years from when you breached your contractual obligation to pay the credit card bill. If more than four years have passed since your credit card became past due and you have not made a payment since then, the statute of limitations has probably run. If the credit card company did not file the lawsuit until after these four years, then you should be able to get the case dismissed.

Unfortunately, there are things you can do to reset the statute of limitations clock, like making a payment or signing an agreement with the credit card company.

The statute of limitations is an affirmative defense. This means you have to raise the defense in your answer to the lawsuit. You also have the burden of proof on this defense. This is something you should be able to prove by looking through your bank records and credit card records. At the very least, you need to be willing to testify under oath that the default was more than four years ago.

Part Three: Other Defenses: Standing To Bring the Lawsuit

Often times, the companies who purchased these debts from the credit card companies don't have sufficient records to prove that they actually own the debt. They try to fake it, but their so called "business records" often are inadmissible if you know how to challenge them. If they can't prove they own the debt, I can get the case dismissed.

Part Four: The Fair Debt Collection Practices Act

If a debt collector sues you (or even threatens to sue you) for a debt that it knew (or should have known) was past the statute of limitations, that is a violation of the Federal Fair Debt Collection Practices Act (FDCPA). If you can prove they violated the FDCPA, you can sue them for actual damages, statutory damages of $1,000, and attorney's fees.

Other violations of the FDCPA include making threats to put a lien on your homestead, threats to have you arrested, misrepresenting themselves as law enforcement or a government agency, calling you at odd hours, refusing to verify the debt, and so on. There is a whole list of bad behavior that violates the FDCPA. If you hire me, I will go through the facts of your case with you to see if you have a FDCPA claim.

Filing a countersuit for violation of the FDCPA can be a very effective strategy, and it is the main method by which you can recover attorney's fees and damages in these cases.

Part Five: Settlement

Sometimes, the plaintiffs do manage to prove the debt, there is no statute of limitations defense, and the violations of the FDCPA, if any, add up to less than what you are being sued for. In those cases, it is not likely that the case will get dismissed, but I can try to negotiate a favorable settlement.

Part Six: Contacting Me

You are probably wondering what it will cost to hire me. After you and I have discussed your case, I will be glad to explain my fees to you. I won't charge you anything to call or email me to discuss whether or not I am willing to take your case. I won't charge you anything to discuss my fee arrangements. The first call is free.

If you are thinking of hiring me, don't delay. The deadline to answer a lawsuit is pretty short, and it is really short in the small claims and justice of the peace courts.

Part Seven: Information I Need

If you email me or call me, please have the following information ready:

-your name, address and telephone number;

-the geographic location of the court and the name of the court;

-the date on which you were served with the lawsuit;

-the last date on which you paid the credit card;

-the date the lawsuit was filed (look up in the top right corner of the first page of the petition for a date stamp);

-the amount you are being sued for;

-the name of the lawfirm or lawyer who is suing you; and

-the name of the plaintiff who is suing you.

Part Eight: Past Outcomes

Past outcomes or results are no guarantee or prediction of your results. Each case is unique and the outcome depends on the facts and other factors.

Having said that, people nevertheless want to know what kind of results I have obtained in these cases.

The most common result is that I get the case dismissed without my client paying any money to the debt collector. While my clients do have to pay my legal fee, my legal fee have always been far less than what they were being sued for and less than what the debt collector would have been willing to settle for.

In some cases, I also am able to recover damages and attorney's fees. To get damages and attorney's fees takes a stronger case than those that just result in a dismissal. We have to be able to prove that the debt collector knowingly violated the FDCPA or otherwise acted carelesssly or in bad faith. If I recover a sufficient amount of attorney's fees on the counterclaim, then my representation ends up being free for my client, and any damages collected are paid directly to my clients.

please visit my other website devoted exclusively to credit card lawsuits: www.creditdefenselaw.com

If you wish to contact me about your case, please send me an email. Please do not submit a comment to this blog for that purpose. You can email me at info@simmonspc.com