Question-consumer/business?

[elyse449]

Hi folks,

Sorry I haven't been around in awhile. Baby boo has kept me running and I had a trip to Texas recently for a wedding (uck, long story) AND I'm now babysitting someones baby for extra bill and savings cash.

ANYWAY--I have a question and will appreciate ANY input you folks may have. I had tried to bring my sister here last night but for some reason couldn't find the site.

My sister had purchased a flower business-..she bought a business and signed an "assigning of lease" in order to be able to remain in the leased space that the shop was in. There were existing structures within. Within the suite there were two structures-one was an office (walls connected to main structure) and another was another office that looked as though it'd been turned into a walk-in cooler. When my sister was preparing to vacate she wrote a letter 4 mon in advance to her landlord requesting that he inform her in writing what all needed to be taken out of the suite--his only response (after further prodding mind you--he didn't even respond initially) was a short and terse, "refer to your lease." When she did-- it reiterated that she needed to get all changes to the suite approved of in writing by the landlord--so she did not remove the two offices in question since she didn't have permission and now they're trying to not only bill her for the removal of the structures (probably 4-6 walls in actuality) but they've also trumped up other erroneous charges such as last months rent (which was already paid for by the "primary tenant) and other trumped up "repairs" which include carpet replacement and blah, blah blah...and they've already sent this to collections and she's barely been out one month.

We were wondering what rights she has IF any and we also wanted to know if the "primary tenants" aren't whose actually legally liable since my sister was only a sub leaser and the main lease specifically indicates that the primary leaser remains legally liable.

The collection agent has called her despite her C&D (since it's re; the business does the FCRA, FDCPA not apply?) and he has claimed that this will "harm her credit and her and her spouse will pay a lot more..." (her spouses name is NOWHERE on the business.) There is a lot more to this--but that's the overall thing...if anyone has the time I'd be happy to go into further detail.

Thanks in advance and I've sure missed you all!! By the way--DH got a Chevron card!

Elyse

[willingtocope]

Okay, I'm confused. But let me start with what I know first, and then work backwards. First, FCRA and FDCPA do not, in general, apply to business credit...unless the business is unincorporated (sole prop) and/or the individual "personally guranteed" the credit. If it is true business credit, then their threat to have it affect your sister personal CR is bogus...but, because the laws don't apply to business credit, those statues don't really apply.

However, I have had some minor success in using FCRA and FDCPA against CA's who claim it will affect my personal credit...the reason I used was, okay, if you say its now personal than FDCPA applies...play nice.

What I am confused about is...your sister bought the business...I got that. But, is she moving in or moving out of the leased space?

[elyse449]

Hi folks,

Yah-sorry for the confusion. She bought the flower shop that was operating within a leased space (didn't own the bldg or space, leased space) and now she has moved from that space (still is sole proprietor of a flower arranging business though) the debt in question resulted from the leased space. The landlord is saying she owes x amount of dollars and it's all bogus stuff--one of the other store keepers has checked her old shop suite and NOTHING has been done to it as far as the repairs and things they're claiming they had to do.

Some other things to add--it is ALLIED CREDIT she is dealing with She just got her letter from them about a week ago and she's now received a 2nd one and they have NOW added her dh's name to the bill even though his name was nowhere on the lease and nowhere on the business...and yes, this nut job is saying it'll affect her credit, her personal credit and that of her spouses.

Thoughts??

E~

[willingtocope]

Okay...clear now.

Hopefully, we'll get some other folks to jump in here, but...

Since it was a sole prop...and she probably signed her name to the paperwork...it probably IS a personal debt. If true, then that's a good news / bad news thing...she can use the FDCPA to make the CA play nice...but...it probably would wind up on her personal CR and if its a community property state, her DH might get dragged into it.

Sounds like she needs to talk with a lawyer....

[anti-something]

i would suggest she get some photos of the space, showing that nothing has been moved, rearranged, rebuilt or whatever their contention is.

definitely running with willingtocopes suggestion about if 'you are going to treat this as a personal debt, then FDCPA applies'

apart from that, go thru the lease with a fine tooth comb, look at their arguement as to why they think she should pay, and see what the lease says to rebut their claim. get her CRs and see if its reporting too.

[elyse449]

Thank you folks so much for the replies so far!! I do have one question--is it perfectly legal to just add her dh's name like that though? They've added her dh's name to the billing already (thankfully I don't think they have his SSN though).

ONE tid-bit...I've gone over the original lease and it does say that the "primary tenant" retains responsibility REGARDLESS of ANY sub-lease situation. SOOO wouldn't that mean that the folks who originally signed the lease would be liable???? Also, the structures in question were existing (already there) when she took over so I would think again--that they couldn't say much. They weren't willing to tell her in writing what had to be removed (per the lease) so she simply didn't remove it because it looked like it was part of the dwelling--we'll see. I think she should see an attorney to, these folks are criminals.

Elyse

[willingtocope]

Definitely consult an attorney. This is all beyond me...

As for putting DH's name on the collection effort, I would guess that's what might happen in a community property state to a sole prop...

But again...talk with a lawyer...

[Recovering Attorney]

I assume she did not have counsel when she bought the business.

I am confused. You said she signed an assignment of lease, then you said she subleased. If she subleased, the landlord can go after both her and the leasee. If she took a straight assignment, she might be on the hook: it depends what the assignment and the lease says, and if the landlord released the seller.

At any rate, you have to look at the lease and whatever it is she signed, to see what the tenant's obligations are. I have never heard of a tenant having to demolish walls and such, but in a commercial lease, almost anything goes.

She should see a real estate lawyer pronto.

[elyse449]

To clarify she signed what was called an, "assignment." In one paragraph of this assignment it tried to say that the "primary tenant-IE the previous owners of the flower shop" weren't liable yet a paragraph on the ACTUAL lease says that REGARDLESS of any assignments, sub-leases, etc they ARE still primarily liable. I think she may have them on a few other things to but I'm hoping she is able to locate an attorney.

As far as adding spouses names to bills--this is new. Our state IS a community property state but I've only RECENTLY seen them just adding peoples names to bills. I had a power company do it and I wasn't even married to my dh yet. So I am thinking it's a bit fraudulent...don't get me wrong, I know they want their money but I think it's just plain wrong to indescriminately add peoples names to bills REGARDLESS of community status. It really opens up the can of worms--We'll see--any other responses will be vastly appreciated....thanks. Perhaps I should request this to be moved to "Is there a lawyer in the house?" Whaddya think?

Elyse