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A business loan is in default. Does Ga have a time constraint to act upon this default legally?

Atlanta, GA |

A substantial business loan is in default 3 months, allowing debtor an additional 3 months to raise $. I feel it necessary to place a lien first and secure any large sums that may be received before they are spent which has already happened. It is apparent that other things are taking priority than paying me back. I am aware that other debts to this debtor will occur in the near future. I am afraid that time may be a factor. What is my legal course of action?

Attorney Answers 4

  1. Most states have statutes of limitations on civil legal actions. The exact time varies by state and normally is from two or more years from the date that the breach occurred. I am not sure of Georgia specifically so you need to look that up or ask a local attorney. Your question states that you may want to file a lien. It is not likely as simple as you may perceive. Unless you have a security agreement (which you should have requested) or you file suit and win, as a general rule you do not have some lien on a debt. A lien is a matter of statute and pre-suit is normally limited to mutual agreement or to specified situations, such as mechanic liens.

    I would strongly recommend that you contact a local civil litigator to discuss your particular circumstances and to advise you on the best way to proceed. .

    DISCLAIMER—This answer is for informational purposes only and discusses general legal principles, trends, and considerations and is not intended as specific legal advice regarding your question. This answer does not establish an attorney client relationship. For legal advice, you should retain legal counsel regarding your specific circumstances.

  2. If you are concerned, you should sue as soon as possible. The contract and/or promissory note will determine if you sue the owner and/or the business. (Licensed in Georgia --- Family and Business Law Attorney)

  3. I think your primary question is whether you can place a lien on your debtor's property for being in default of a business loan agreement. Generally, the answer is "no" under Georgia law-- you can't place a lien on a person's or business's property unless it is a judgment lien; i.e., you sue, win your case, and obtain a judgment for a sum certain against someone. (There are limited exceptions-- mechanic's and materialman's liens for example; but they don't seem relevant here).

    Depending on how the loan was collateralized, you might have certain notices on the public record (UCCs or deeds to secure debt). If that is the case, you have some limited protection against buyers of any of those assets, because they would be on notice of your secured claim. In the absence of anything like that, however, then probably what you need to do is file suit as quickly as possible in order to get your judgment.

    Disclaimer: This is not legal advice because I do not know the specifics of your situation and have made a number of assumptions, and we also do not have an attorney-client relatonship.

    Best of luck!

  4. Yes, Georgia does have a time constraint. Generally, you have 4 years to pursue the breach of an oral contract, 6 years to pursue the breach of a written contract, and 20 years to pursue the breach of a written contract executed under seal. It would be foolish to wait this long, however, as (i) sometimes witnesses become unavailable and documents are lost over time and (ii) there are other claims in additiona to breach of contract that have much shorter time limitations, some of which may be available to you if you act fast enough. To identify these, you should consult with a good attorney.

    FYI -- I'm not your attorney, and this isn't legal advice. This is merely general information intended to assist you in understanding some of the law that may apply to your situation and allow you to find an attorney qualified to assist you.

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