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Re: Legal stuff I will never understand - Preferred Payment Claim

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This does not make any sense. Hopefully, some of the experts in this list could try to explain it.
 
Farzin S. Rahbar, SE
Vice President
David C. Weiss Structural Engineer & Associates, Inc.
(818) 227-8040 Ex. 13 Fax: (818) 227-8041


-----Original Message-----
From: Ralph Tavares <ralph(--nospam--at)rstavares.com>
To: seaint(--nospam--at)seaint.org
Sent: Thu, May 27, 2010 2:28 pm
Subject: Legal stuff I will never understand - Preferred Payment Claim

I thought I could share this with the group, and I appreciate any input that you may have about this situation.
 
Here is my problem in a nut shell:
In 2008 a good client of mine filed for bankruptcy.
We wrote off their debt, and went ahead with them COD, until they finally closed their doors.
At the beginning of this year we received a claim for  “Preferred payment”…
Because we received payments 90 days before their bankruptcy filing, the creditors who did not receive anything can sue us to give the money back.
It is up to us to prove that what we received was under “normal course of business”
 
Now the facts are:
We were demanding on receiving our late payments from them so they would get current on their past due invoices.
We have in our contract, as well as any AIA standard contract, the clause if the client is late we can stop performing services.
So we would stop servicing them and they actually paid us on their old invoices to get us going.
Our attorneys are telling me that this is not good for our cause because we basically forced them to pay us, and other creditors did not have this same condition.
Well, my point is… if we have a contract stating they need to be current on payments, we covered our interest well. I cannot speak for the others that did not have the same pull.
My argument does not seem to work, I have been told that I have to settle or spend 3 times more to go to court.
 
It seems to me that this “preferred payment” is an attorney’s dream  (let’s say a trap) and a design professional’s nightmare.
Is there any former case establishing jurisprudence on this situation?
ASCE does not provide any attorney support in this situation to their members, so I am reaching out to our list to feel what you know.
If anyone out there can provide me an insight of their experience or hearsay, it would be deeply appreciated.
Thank you.
  
Ralph Tavares, PE
R&S Tavares  Associates, Inc.
9815 Carroll Canyon Road, suite 206
San Diego, CA, 92131
T: (858) 444-3344