Author Archives: collectionario

Improperly Executed Documents are Creditors Biggest Impediment

Improperly Executed Documents are the Biggest Impediment to Holding Someone Responsible for a Debt.

Occasionally commercial companies will place a debt with me to sue a company debtor and its individual guarantor where the personal guarantee is not properly executed.

The most common way that a personal guarantee is not properly executed (other than no signature), is when the personal guarantor puts a corporate title next to their name. For example, personal guarantors will sign a personal guarantee on the line for the signature for the individual as, for example, “Tommy Signature, President.” While the document that Tommy Signature signed might say that it is a personal guarantee all over the document and in fact make clear that it is a personal guarantee, in the vast experience of Cellai Law Offices, P.C. in the Court system, Judges typically view the inclusion of the word “President” to mean that the person did not intend to personally guarantee the debt.

While one can debate the issue and argue it in Court (and it is always worth arguing because there are some cases that support your position), most Judges look at the inclusion of a corporate title as an intent on the part of the personal guarantor not to be a personal guarantee.

Companies having their account debtors execute a personal guarantee should be very diligent about having an account debtor sign the personal guarantee in their individual capacity without a title.

No Written Contract? No problem. Usually.

No written contract but you still claim a debt is due? I am frequently asked about whether someone can sue for money owed even if they do not have a written contract.

My response is typically, yes, there is no impediment to suing for a breach of contract when there is no written contract provided the circumstances show an intent to contract. In fact, in a very large percentage of the cases that Cellai Law Offices, P.C. pursues for individuals, there is no written contract outlining all or sometimes any of the terms and conditions of the parties agreement. Sometimes, there is as little as a cancelled check with the word “loan” written on it.

As long as the parties have an agreement to enter into a contract (which can even be verbal) and there has been some conduct in furtherance of executing or conduct which furthers the contract in such a manner that the intent would be to enter into a contract, usually this is sufficient to form a contract for which you can bring a claim for breach of contract.

It is always worth inquiring about whether you have an enforceable contract.

International Debt Collection

Issues Enforcing Out of State and Out of Country Judgments

Cellai Law Offices, P.C. has experience with some of the biggest issues enforcing out of state and out of country collection judgments. We very often asked to enforce out of state Judgments and Judgments from other countries.

In our vast experience enforcing out of state Judgments (and out of country Judgments), the biggest issues that arise are whether (a) the defendant was properly served with the legal process and (b) whether the originating Court had jurisdiction over the defendant.  Typically, jurisdiction over the defendant is something that is not pushed very hard.  Whether the debtor knew about the process is always a big issue.

As a result, Cellai Law Offices, P.C. seeks documents from the out of state litigation which shows service on the debtor/defendant and that they knew about the underlying litigation.  If you provide these document to the court upfront to show the court that the debtor/defendant was properly served, Judges usually agree to lien the bank accounts and real estate of a debtor without their knowledge or consent.

Debt-Reach and Apply

Debts owed to Your Debtor can be Reached in Satisfaction of a Debt-Reach and Apply

I am frequently asked whether a third party can be sued for a debt or part of a debt when money has been provided to the third party as part of another transaction.  My answer is sometimes, yes.  In a recent case litigated by Cellai Law Offices, P.C. for a multinational corporation, we were enforcing a promissory note in the Superior Court for the multinational corporation.  The debtor had filed a lawsuit in another Massachusetts Superior Court where he was seeking money from a third party.  Cellai Law Offices, P.C. obtained an order from the Court which provided that should the debtor recover on his lawsuit, the first funds earmarked for the debtor were to be paid to the multinational corporation.  Recently, the debtor won his case and the monies are available to satisfy the debt.

Debt Money Had and Delivered

Collecting Debts owed to Your Debtor

Debts owed to Your Debtor can be Reached in Satisfaction of a Debt – Money Had and Delivered

I am frequently asked whether a third party can be sued for a debt or part of a debt when money has been provided to the third party as part of another transaction.  My answer is sometimes, yes.  In a recent case litigated by Cellai Law Offices, P.C. we were enforcing a Judgment from the Federal District Court, District of New Hampshire against an individual defendant.  In looking at the documents of the underlying transaction (just to be thorough even though there was already a Judgment and because the underlying matter that was handled by a different attorney), it became clear that monies were paid to different third parties (in this case family members).  According to the client, the main contracting debtor claimed that she needed the money sent to her relatives because she did not have access to her bank accounts.  Cellai Law Offices, P.C. sued the additional parties who received the funds under the theory of “money had and received.”  Under the theory of money had and received, if you receive money gratuitously, or which you were not supposed to receive, you are obligated to pay it back.  The Norfolk County Superior Court entered judgment against all of the various family members that received money on the money had and received claims.

Government Contract Kickback

Illegal Kickback Revealed in Government Contract

Kick Back in the Procurement of a Government Contract Disallows a Fee

Where a demolition subcontractor failed to pay a fee from a person who helped it obtain a subcontract from the general contractor, the suit was disallowed when the subcontractor sued the general contractor for the fee out of monies owed to the person who helped obtain the contract.

Carlo Cellai, Esq. represented the general contractor and took the position that the fee by the person who helped the demolition subcontractor obtain the contract was an illegal kick back in violation of the anti-kick back laws.

The Court agreed with the position put forth by Carlo Cellai, Esq. on behalf of the general contractor that the payment of any fee to the person who helped the subcontractor obtain the contract was an illegal kick back scheme for which no payment was due.

Massachusetts Lawyers Weekly

Child Support Order Collection

Judgement in 20 Year Old Statute Case

An Action by a Mother for a Decades Old Child Support Order was not Barred by the Statute of Limitations or Laches

Carlo Cellai, Esq. filed an action in 2002 to enforce an approximately twenty two year old child support order. The Defendant-Father-Obligor failed to pay anything under the child support order. 

The Court ruled that non payment of a child support order is not barred by the statute of limitations.  The father was ordered to pay the entire balance of the outstanding child support order plus all accrued interest.

Massachusetts Lawyers Weekly

Cellai Law Turns $20,000 into $175,000

Irrevocable Sale and Recovery Solution

Carlo Cellai, Esq. Represented a Lawyer Against His Client and After Judgment, Sold Her Summer House at Auction.  The Client Was Not Entitled to an Equitable Set Off for Amounts Above the Judgment

Carlo Cellai, Esq. represented a lawyer who obtained a $20,000 judgment against his client.  When the Judgment became final, Carlo Cellai, Esq. levied and sold the lawyer’s client’s interest in a summer home in Scituate, Massachusetts.  When the sale became irrevocable, Carlo Cellai, Esq. on behalf of the attorney filed a Petition to Partition the real estate.  At a trial on the partition action, the Court ruled that when the attorney’s interest in the house vested absolute, he became the owner of all of the client’s right title and interest in the house. Ultimately, the house was sold for $350,000.  The attorney received one half of the proceeds of $175,000 as his former client’s interest in the house.  Carlo Cellai, Esq. turned an approximately $20,000 judgment into a $175,000 recovery.

Massachusetts Lawyers Weekly

Insurance Company Pays Damages

Commercial Building in the Boston Financial District Ruled a Collapse, Insurance Company Must Pay Tenant Losses

Carlo Cellai, Esq. represented a Trust against an insurance company for damages when the insurance company refused to pay damages when the building that the Trust was a tenant in was in a state of collapse.  The insurance company took the position that since the building had not fully fallen to the ground but was only sagging, they did not have to pay the tenant’s damages.  Carlo Cellai, Esq. litigated the case before the Superior Court where the Superior Court ruled that since the building’s sagging appearance was both sudden and visible, the building collapsed and the insurance company is responsible for the Trust’s damages.

Massachusetts Lawyers Weekly

Passing NSF Checks Constitutes Fraud

Presenting and Passing Non Sufficient Funds Checks Constitutes Fraud

Carlo Cellai, Esq. represented a bank where a bank depositor and former lawyer deposited checks from a different bank into his bank account.  Before the checks had a chance to bounce, the depositor withdrew funds from the empty account, the checks bounced and caused the bank a loss.

In laying the groundwork for a fraud defense to dischargeability in bankruptcy, Carlo Cellai, Esq. prosecuted the case on behalf of the bank on the ground that the depositors conduct amount to fraud.

The Judge agreed with Attorney Cellai’s position on behalf of the bank and ruled that the depositor had perpetrated a fraud on the bank.  As a result of the creative legal theory, Attorney Cellai set the ground work for a dischargeability claim against the depositor had the depositor filed bankruptcy.

Massachusetts Lawyers Weekly