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Tips for Making Remote Pitches to Potential Startup Investors

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Seemingly out of nowhere, the COVID-19 pandemic swept across the world and sent most of us to our homes to work, full-time, where many of us still find ourselves today. If you are a startup founder in need of investors, you might be wondering how you will find funding if you can no longer meet with potential investors face-to-face. Luckily, as fast as the world changed and shifted to working from home, the world has adapted, and remote pitching has become commonplace among startups and investors.

While many of the tactics you used for in-person pitches remain the same for remote pitches, there are some tips that you should know to make the most out of your remote pitches. Read on for our top tips that will give you the best chance of success when pitching a potential investor.

Prepare Well in Advance

Prepare for the call well in advance by educating yourself on the potential investors.

First, you should know exactly to whom you are pitching. Are there specific types of startups in which they invest? What are their specific industries of focus? How much capital do they generally invest? Consider factors that will give you insight into whether you might be a good fit for them and to show you where you might have a weakness that you will need to overcome to receive their backing.

Second, once you have prepared your presentation materials, share the deck with the investors ahead of time. Ask them to take a look and let you know if there are any specific topics for which they would like more information or how they would prefer you focus the presentation. If you involve them in advance and tailor the presentation to what they are looking for, they will be more likely to be engaged during your pitch.

Lastly, set a clear agenda for the pitch. This way, you will have enough time to cover everything you need to cover during the remote meeting.

Prepare Questions and Ask for Questions

During your pitch, you should ask questions to make sure the potential investors are a good fit for your company. While you might think an influx of cash to your company is a good thing, you want to be sure that the investor is aligned with your vision for the company, too. Prepare a few questions to ask during the remote pitch to determine whether the investor will truly add value to your company – beyond the initial influx of capital.

Likewise, investors will probably have many questions for you, the founder. In addition to asking for questions at the end of the presentation, if you share your deck with the investors well in advance, you can encourage them to send you questions ahead of time so you can either cover those questions during the presentation or be prepared to answer them at the end.

Check (and Double Check) Your Technology and Practice Your Pitch

The last thing you want during a remote pitch is for something to go wrong with your technology. While you can never be 100% certain that your technology will not fail you during a remote call, by preparing well and checking all of your technology ahead of time, you will cut the chances of error down considerably.

Some things to look out for include:

  • Ask to use your own conferencing platform, as opposed to the investor’s, so that you know you are comfortable with it.
  • Do a few test pitches to make sure you can share your screen, click through your deck, and use all of the functions correctly.
  • Check your wifi’s speed and bandwidth to make sure it can support a video call.
  • Set up your desk to minimize distractions and make sure your space looks professional and neat.
  • Position your camera and computer so that your shoulders-up are showing to simulate an in-person meeting.

Know Your Story and Articulate It Well in Your Slides

The story you tell about your company’s mission, as outlined in your pitch deck, will be the most important part of your presentation. If you cannot capture the investor’s attention with your story, you are unlikely to land the funding.

Once you sketch the story you want to convey, take the time to set it out in a compelling way in your pitch deck. You want each slide to elicit a certain response from the audience (your potential investor), so make sure each slide does just that. This is even more important in remote settings, as it is harder to capture an audience through a screen. Do not be afraid to make your visuals catchy and eye-popping, so long as they tell the story you want to tell. You want to be someone that investors remember, not just another face they saw across the screen.

Post-Call Best Practices

End your remote pitch with a clear call to action so that everyone understands what the next steps will be. Do not be shy to ask for what you want – if it is funding you are pitching the investors about, ask for it. They may offer you just that, or they may need more time to make a decision.

After the call, follow-up with a short email summarizing the key points and takeaways from the pitch. If there were any questions you were not able to fully answer during the call, answer those. Otherwise, thank the investors for their time and let them know you look forward to continuing the dialogue and that you are available to answer any additional questions they might have.

Remote Pitching May Be Different, But it Does Not Have to Be Difficult.

There is no one right way to do a remote pitch, but, hopefully, with these tips you will be better equipped to face the unique challenges startup founders face when facing potential investors across a screen instead of across a room.

At Wilson Ratledge, our attorneys regularly assist our clients in preparing pitches to investors and securing their initial rounds of funding. For questions, or to set up a consultation with one of our experienced North Carolina business planning attorneys, call 919-787-7711 or reach out via our contact form below.

Eminent Domain Laws in the State of North Carolina

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Eminent domain is the power of the government to take a person’s private property and convert it into public use under the Fifth Amendment.

North Carolina law permits the right of eminent domain, which is the government’s power to seize or “take” your private property for public use.

The North Carolina Supreme Court has defined “taking” under the power of eminent domain as “entering upon private property for more than a momentary period, and, under warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof.”

The Supreme Court also explained that the test of public use is not the advantage or great benefit to the public. Rather, an appropriate “public use must be for the general public, not a use by (or for) particular individuals.

Under eminent domain, the government may only exercise a taking power if it provides the property owner with “just compensation.” But exactly what constitutes “just compensation” may not be the ousted property owner’s idea of what would be a fair, reasonable, and accurate reflection of your property’s value.

Here, we will explain how the eminent domain process works, what courts have deemed “just” compensation, and the importance of understanding your rights as a North Carolina property owner.

How Does Eminent Domain Work?

First and foremost, the government cannot simply pull the rug out from underneath unsuspecting property owners: it must give the property owner appropriate notice of its intent to take the property under eminent domain. Further, the government must provide an offer of just compensation based on the fair market value of the property. The offer will include a summary of value, but the property owner can request a full appraisal instead.

Typically, in North Carolina, the state Department of Transportation (NCDOT) will attempt to negotiate the value of your land. A right of way agent, or “ROW agent” is the DOT’s representative who handles the case. The agent gets the DOT’s property appraisal and is in charge of negotiating with the landowner and his or her attorney. The ROW agent will make an offer to the property owner for the property based on the DOT’s own appraisal.

Like any other person who wants to buy a property, the ROW agent’s objective is to take the property for the least amount of money—regardless of whether that’s truly “just compensation.”

Because it’s their full-time job, the ROW agent has done this many more times than the average property owner has. He or she will know things about the process that the average citizen may never learn. As the “little guy” going up against the government, you need your own advocate with years of eminent domain experience and vast knowledge of this process.

Part of this analysis is to hire an independent appraiser to value your property. With this information, you and your attorney can determine if the State’s offer is fair. If not, you can reject the offer and try to negotiate a better one. Finally, if you reach an impasse, you can fight the DOT’s offer in court.

If there’s no settlement, the government will typically take your property by instituting legal action. The government will file a lawsuit and deposit the amount it believes to be just compensation with the court. The laws of eminent domain permit the landowner to withdraw the deposit without giving up any rights to seek additional compensation (provided your attorney files the appropriate motion with the court).

Of course, it’s best to rely on an experienced North Carolina eminent domain attorney to address the issues surrounding the filing a motion to withdraw the deposit, the deadlines for filing a response, preserving your property rights, engaging possible property valuation experts, and developing a legal strategy to bring about the best possible outcome in your case.

Can I Stop the Government from Taking My Property?

You can fight to stop the eminent domain process if the proposed taking fails to satisfy the requirements of a public purpose. If the test is met, the government can’t be stopped from taking your property, but again, you can try to get the best possible price for your property.

North Carolina courts usually order the property owner and the government seeking to take the property to participate in a mediated settlement conference. In this meeting, a neutral third-party will try to bring about a reasonable and agreeable price of settlement. However, the mediator doesn’t have the power to force either party to settle the dispute.

If there is no agreement, a 12-person jury will decide the amount of money to which you’re entitled from the government for the taking of your property.

Contact Our Experienced Real Property Attorneys     

There are many complex issues that you must address in the eminent domain process to make certain that you get the highest possible price for your property. This isn’t a do-it-yourself matter like filling in the blanks on a standard form, so don’t try to negotiate with the government on your own.

When it comes to protecting your property, understanding the laws surrounding eminent domain procedure is vital. Even more important is having an advocate on your side who can inform you of your rights as a property owner and help you staunchly protect them.

At Wilson Ratledge, our attorneys regularly advise our clients on the condemnation process in our State and work to ensure that they are positioned to gain the compensation to which the law entitles them. For questions or assistance, one of our experienced North Carolina real property attorneys at 919-787-7711 or via our contact form below. We look forward to serving you.

What is the Probate Process, and Can I Avoid It?

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In the conventional wisdom, the probate process does not tend to carry a positive association: it is known for being costly, time-consuming, and stressful. As a result, many people who have experienced the probate process following the death of a loved one want to avoid it in the future and might feel motivated to help other family members avoid it through intentional estate planning.

However, there is quite a bit of confusion that still surrounds the probate process. What exactly does probate mean? How does the process work? Is it generally good for families who want to see their deceased family members’ wishes honored? If not, is it possible to avoid the process? If so, how?

Here, we discuss the probate process, explaining what it is, how it works, and what you can do now to protect your estate – or your loved ones’ estates – in the long term.

What is Probate?

When a person dies, everything he owns, from the cash in his wallet to the money he invested, is considered a part of his estate. Probate is the legal process of settling this estate by paying off the decedent’s debts and distributing his assets.

The probate process is designed to effectively manage estates in cases in which the decedents failed to provide specific directives. It can be lengthy, often taking more than twelve months to complete. From court costs to attorneys’ fees, it can be expensive. And for those who wish to keep their family affairs private, it’s important to know that matters of probate are public record: once an estate is probated, anyone can access information about it, including who inherited the decedent’s property. As such, for many family members mourning a loss, the probate process can make an already emotional and trying event more challenging.

How Does Probate Work?

Upon a person’s death, a personal representative will be designated to manage the estate. This person may have been named in the decedent’s will. If the decedent did not designate anyone, another qualified individual – dictated by State law – will be appointed. The personal representative will submit an application to the court along with a preliminary inventory of the estate, a certified copy of the deceased’s death certificate, and a copy of the will (if applicable). The personal representative will pay a fee to open the estate and must take an oath to carry out certain responsibilities to settle the estate.

During the probate process, the personal representative will fulfill several duties, including the following (among others):

  • Filing an inventory all of the decedent’s assets;
  • Paying any of the estate’s outstanding debts;
  • Providing notice to known creditors;
  • Filing taxes for the decedent;
  • Setting up a bank account to pay for any expenses incurred by the estate, such as debts and funeral costs;
  • Selling assets to cover debts if needed;
  • Distributing assets to known heirs; and
  • Preparing a final accounting to close the estate.

Not all assets are subject to probate. If the decedent named a beneficiary for an asset in a will or by some other instrument, generally, that asset will not pass through probate.

Additionally, North Carolina law specifically designates certain items that do not pass through probate, for instance, life insurance proceeds with a named beneficiary, securities held in transfer-on-death accounts, and jointly-owned property (when the joint owner still lives), among others.

If I Want to Avoid the Probate Process, Can I Set up My Estate Plan to Do So?

Proactively setting up an estate plan to avoid probate can lighten the burden that the process often imposes. Here are a few ways to do so.

Name a beneficiary for your accounts. The most straightforward way to avoid probate is to ensure there is a named beneficiary on all of your – or your loved ones’ – accounts. This should include all retirement accounts, brokerage accounts, bank accounts, and insurance policies, as well as Payable on Death (POD) or Transferable on Death (TOD) accounts. Failure to name a specific beneficiary will result in accounts being probated upon the account holder’s death.

Protect your assets. Naming a beneficiary through a POD or TOD clause will only protect accounts, not personal effects. Living trusts are a tool that can be used to keep any asset out of probate. Bank accounts, real estate, or other personal property like a vehicle can be placed in a living trust. Ownership of the property will be transferred to you as trustee and upon your death, your successor will take control of the trust and distribute the property as dictated by the terms of the trust without going through probate.

Consider a joint tenancy. This option frequently applies to married couples, business partners, or other individuals who share ownership rights in property. Property held in joint tenancy does not pass through probate. Instead, the surviving owner automatically takes full ownership of the shared property.

Designate an heir and keep your assets simple. Estates limited to $20,000 in personal property can be settled through a simplified process that does not require formal probate. Additionally, a surviving spouse stands to inherit all the decedent’s assets and the estate’s value is $30,000 or less, the estate can be settled without probate. If the surviving spouse is the only heir, a simplified probate process known as “summary administration” will apply in place of traditional probate.

Contact Our Experienced Estate Planning Attorneys     

When it comes to securing your assets – or protecting your loved ones’ assets – an estate plan can eliminate much of the burden, cost, and uncertainty that can come from relying on the administrative process. At Wilson Ratledge, our attorneys regularly assist our clients in preparing estate plans that ensure their desires and wishes will be met. For assistance setting up your estate plan, contact one of our experienced North Carolina estate planning attorneys at 919-787-7711 or via our contact form below. We look forward to serving you.

What Is A Special Needs Trust, and How Do I Know if I Need One?

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If a loved one is disabled, elderly, or otherwise unable to manage his finances, what can you do to help? These individuals often turn to state or federal assistance programs to cover their basic living expenses. However, there are often expenses that public benefit programs do not cover. Further, these programs have strict qualification limits. As such, if your loved one comes into money due to a family death or other life event, it could cost him his much-needed public assistance benefits.

Fortunately, the law supplies a remedy in the form of special needs trusts. Here, we will explain what this type of trust is, how it works, and why it is necessary.

What Is A Special Needs Trust?

At its most basic level, a trust is a legal instrument designed for the safekeeping of assets. Assets like cash, investments, or property can be held in a trust until a specific time or condition warrants distribution. A trustee – the person or entity who is designated to manage the trust – must distribute the assets within the trust in a way that is consistent with the beneficiary’s best interests. This includes authorizing any change to or withdrawal from the trust.

A “special needs trust” or SNT is a specific type of trust that provides a supplemental benefit to a disabled or elderly beneficiary without disqualifying the individual from any public assistance benefits.

How Does A SNT Work?

SNTs are used to fund expenses outside the scope of what is covered by government assistance. The goal is to give the beneficiary access to those things that will enhance the beneficiary’s quality of life. An SNT allows the beneficiary to continue to receive public assistance, while also having a source to fund other goods and services that public assistance does not cover.

By holding the assets of a disabled or elderly individual in an SNT, any increase in assets or income will supplement the beneficiary’s circumstances, rather than potentially disqualifying them from the public assistance programs on which they rely. Many of these individuals depend on programs like Medicaid, Social Security Income, and similar resources to cover basic living expenses. SNTs are intended to fund those expenses outside of the basics that are covered through other means. Furniture, vacations, specialized medical procedures, and sporting equipment are just a few things an SNT can fund.

What Warrants the Use of A SNT?

SNTs were created by federal law to protect Medicaid and SSI recipients. Because public assistance programs impose strict limits regarding assets and income, the SNT keeps the assets of public assistance recipients from barring additional benefits.

For example, if a benefits recipient receives a lawsuit settlement, inheritance, or other monetary gift or award, this change in assets could disqualify him from receiving further benefits. The SNT covers the percentage of the person’s financial needs that public assistance payments do not cover. The assets held within the trust do not count, essentially, to qualify (or bar) the person for public assistance.

In other words, you may gather your loved one’s assets into an SNT to “shield” them from governmental scrutiny, thus effectively allowing your loved one to still qualify for public assistance.

Even if the beneficiary does not currently receive government assistance, an SNT can serve as a supplement to benefit an individual who is unable to manage his finances. Should the beneficiary need to pursue public assistance in the future, the SNT can serve as an immediate resource to fund your loved one’s lifestyle and cover his expenses during the often-lengthy application process for most benefit programs.         

Further, parents of children with special needs can benefit from setting up an SNT, which will ensure that their children have the resources to meet their future needs without risking the ability to receive public assistance benefits. In these cases, the SNT provides a means to pay for goods and services not covered by these benefits. If a parent simply left assets to a disabled child through a standard will, such inheritance could disqualify the child from receiving any government benefits.

How Is A SNT Created?

There are three types of SNTs in North Carolina:

A Self-Settled SNT

The self-settled SNT and the pooled SNT are both funded by the beneficiary’s assets. The name is misleading, however, as a self-settled SNT must be established for the beneficiary’s benefit by a parent, grandparent, legal guardian, or a court and not the beneficiary himself.  

A “Pooled” SNT

Unlike the self-settled trust which is only an option for beneficiaries under the age of sixty-five, the pooled SNT does not have any age restriction and it can pool the resources of many parties, including the beneficiary, to fund it. Pooled SNTs must be managed by a nonprofit association. Medicaid must be reimbursed with any remaining funds in the trust for all self-settled trusts, regardless of the source of the funding.

A Third Party SNT

Finally, third-party SNTs are funded by someone other than the beneficiary. A testamentary trust created by a parent for the benefit of a special needs child to take effect upon the parent’s death is one example of a third-party SNT. These trusts do not have an age restriction and there is no requirement to repay any Medicaid expenses upon the death of the beneficiary.

It’s vital that the person or entity who creates the trust – or its legal representative – crafts the language of the trust carefully to ensure it is valid and will withstand scrutiny. Ideally, the SNT will be created before the beneficiary reaches the age of 65.

Contact Our Experienced Estate Planning Attorneys     

At Wilson Ratledge, our attorneys assist clients in preparing and executing documents that help them remain financially secure and sound. We regularly help clients set up special needs trusts to ensure their family members are sufficiently protected. For assistance, contact one of our experienced North Carolina estate planning attorneys today at 919-787-7711 or via our contact form below. We look forward to serving you.

How Small Businesses Can Recover Financially From The COVID-19 Pandemic

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Small business owners throughout North Carolina are facing critical decisions, from evaluating the pros and cons of laying off staff, to shaving overhead costs, to finding creative and affordable marketing solutions to generate new leads. Those who’ve seen a substantial downtick in business, or who’ve lost one or more revenue streams entirely, may find themselves in need of emergency financial support simply to keep the lights on. 

Fortunately, there is (arguably) no better time for business owners and founders in need of help. The U.S. Small Business Administration (SBA) recently granted a request made by Governor Roy Cooper for federal relief for business owners facing coronavirus-related economic hardship. Specifically, the approval allows qualifying small businesses to apply for low-interest disaster relief loans and grants. The federal government is also offering, through the IRS and other agencies, a variety of options for small businesses at risk of financial collapse. 

Here, we will survey a handful of those options and share how your business can benefit from them. 

Automatic Relief On 504 Loans

If your business holds commercial properties and received financing through the SBA’s 504 loan program, you may be eligible for relief. Starting in April, the government is automatically making mortgage payments on behalf of qualifying businesses for the portion of mortgages held by the SBA. This initiative is part of the recently-passed Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Economic Injury Disaster Loans (EIDL) 

The federal government is offering low-interest EIDLs directly through the SBA. These loans are intended to help qualifying businesses replace working capital income. They carry an interest rate of 3.75 with up to a 30-year term and an automatic one-year deferment. Additionally, there is no personal guarantee on amounts up to $200,000. 

Some businesses are also eligible to apply for a grant in an amount of up to $10,000. The grants can help replace lost revenue and do not need to be repaid, even if a loan application is denied.

Payroll Protection Program (PPP) Loans

An existing SBA loan program is adding another $349 billion in forgivable small business loans to help businesses maintain payroll. To qualify, applicants must certify that the pandemic-related economic upheaval necessitates a loan to support the business’ ongoing operations. If you qualify, you can receive a loan up to 2.5 times your company’s average monthly payroll. This includes amounts paid as wages and benefits to employees, including small business owners and those with an annual salary of up to $100,000. 

Loans are forgiven if they are used on qualifying expenses like payroll in the eight weeks after the funds are disbursed. However, the amount of the loan that is forgiven may be reduced if the business doesn’t return payroll to pre-pandemic levels by June 30 or if more than 25 percent of the loan is used for non-payroll expenses like rent or utility payments.

Tax Credits For Payroll

If you do not receive – or don’t qualify for – a PPP loan, you may be eligible for other forms of tax relief. New legislation is allowing a refundable employee tax retention credit worth up to $5,000 per employee. To qualify, your business must either be ordered to partially or fully shut down or have experienced a 50 percent decline in quarterly revenue year over year from 2019.

If your company has fewer than 100 employees, the government will pay half of the wages for your employees who are continuing to perform productive work. You can also seek tax deferment, meaning that half your payroll taxes can be delayed until the end of 2021, with the other half due at the end of 2022.

Tax Assistance From A CPA

The CARES Act includes various other forms of tax relief, like the elimination of penalties for withdrawing from 401k funds. As such, speak with your CPA to ensure you are maximizing the relief available to you and to ensure you receive it at the earliest opportunity. To help your CPA and to expedite the process, keep thorough, organized financial records for your company. Be sure to maintain copies for yourself, your CPA, and your corporate attorney.

Increased Vigilance Against Scams And Phishing Attacks 

The fallout from the coronavirus goes beyond economic injury: hackers and scammers are capitalizing on the increasing vulnerability of businesses. Cyberthreats like phishing scams are skyrocketing as companies move to remote workplaces, and tech vendors who support the virtual marketplace are finding themselves less able to respond as they try to manage an unprecedented demand for their services. 

Small businesses should take all steps necessary to avoid these attacks. When you receive communications from an entity or individual purporting to be a government actor, proceed cautiously: generally, the government will not charge a processing fee to originate a loan or disburse grant money, so an organization or individual seeking a fee is likely not legitimate. With phishing scams on the rise, never release any personal information for yourself or your business without first vetting and verifying the source. 

Additionally, do what you can to secure your sensitive business information, from your bank accounts to your login credentials to your CRM system or other customer databases. If you have questions about how to best accomplish this, contact your attorney or an IT professional for assistance. 

Professional Financial and Tax-Related Help for Your Business

At Wilson Ratledge, our corporate law professionals include tax and business attorneys with more than 60 years of combined experience helping business owners thrive. We understand that each situation demands particularized attention and as such, we can help your business navigate pandemic-related economic distress. From evaluating your options to navigating negotiations with creditors and financial institutions throughout the loan application process, we are here to help you do what you can to recover.

For assistance managing your corporate financial affairs, call us at 919-787-7711 or reach out to our team via our contact form below. We look forward to helping you overcome your financial challenges and to keep your business running. 

Vital Steps To Take Before Investing In A Business

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While no reasonable investor would fund a business on the brink of financial ruin, sometimes, that’s exactly where investors find themselves. This happens when debtors lie about their financial health to secure a loan.

What surprises many clients is that investors often find themselves with no recourse against duplicitous debtors if they fail to take a critical step as part of their due diligence. For various reasons, the most well-intentioned creditors seeking investment opportunities find themselves empty-handed when their debtors file for relief from the debts in bankruptcy court. Unless a bankruptcy judge declares a debt nondischargable, creditors can be completely out of luck.

Fortunately, though, all hope is not lost. The U.S. Bankruptcy Code protects creditors, too, including provisions that allow certain claims to be declared nondischargeable. This means that bankrupt debtors may still be legally on the hook to repay debts, even if the rest of their debts are discharged (released) through the bankruptcy process.

While there is a booming industry of lenders who knowingly take (calculated!) risks in lending funds to debtors without fully knowing their financial situations, this article is directed to the unwitting lender who did not fully understand the risk involved in a transaction. Lenders can – and should – take certain vital steps to ensure they understand a debtor’s financial health before entering a transaction.

Non-Dischargeable Debt: The Bankruptcy Code’s Lender Protection Provision

The U.S. Bankruptcy Code protects creditors by barring debtors from discharging certain debts if they obtained such debt by false representations or fraud, including a failure to disclose their financial hardships or challenges.

In a bankruptcy case, debtors can seek relief from various debts, many of which will be discharged unless a creditor files an objection. These actions will take the form of an “adversarial proceeding” under the Bankruptcy Code and will lead to an entirely separate legal action.

11 USC 523(a)(2) is a mainstay of the bankruptcy system. In short, it protects creditors from losing money to a debtor who may have misrepresented – or failed to disclose the full extent of – his financial situation.

Let’s take a closer look at the Bankruptcy Code’s language: 

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt . . . .

(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by—

(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;

(B) use of a statement in writing—

(i) that is materially false;

(ii) respecting the debtor’s or an insider’s financial condition;

(iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and

(iv) that the debtor caused to be made or published with intent to deceive[.]

Stated differently, this section of the Bankruptcy Code allows creditors to seek a court declaration that their debts were obtained by false pretenses, a false representation, or actual fraud, and are therefore nondischargeable.

Although the Code doesn’t define the terms false pretenses, false representation, or actual fraud, a bankruptcy court will apply rules and guidelines established in prior cases with similar fact patterns. 

Most importantly, however, the Code only allows false representations about the debtor’s financial condition to serve as the basis of a dischargeability objection if those misrepresentations were made in writing.

The law affords a basic protection: If a debtor lied about (or concealed the full extent of) his financial situation, in writing, before you loaned it money, the debtor may be prohibited from receiving the benefit of having the debt discharged through the bankruptcy system. This means that as a creditor, you may be able to ask a judge to declare your debt nondischargeable.

What Should You Do to Protect Yourself Before Lending Funds to a Business?

Simply put, you, as the lender and potential creditor, must insist that everything related to the financials of your debtor is put in writing before lending anything to keep open the possibility that your claim would be considered non-dischargeable. Ultimately, it will be your burden to prove that the debtor’s statements were materially false and that you relied on those statements to make the loan. If you do not have these representations in writing, unfortunately, you are out of luck.

If you’re a creditor, it’s your burden to prove that the debtor was intentionally deceitful, misleading, or fraudulent in his dealings.  You must also prove that you relied on the debtor’s misrepresentations in deciding to lend him funds.

To ensure your claim remains nondischargeable and to keep your debtor on the hook, develop a practice of collecting financial statements from your debtors before lending any funds. If you lend money to either an individual or business, secure a written statement about the debtor’s financial situation.

The best way to do this is by requesting the following information from the debtor: 

  • written profit and loss statements
  • balance sheets
  • cash flow statements
  • bank records for multiple pertinent time frames

Also, demand that the debtor make written representations that the financial documents provided are true and accurate and that the financial documents disclose all his liabilities. If it turns out that the debtor falsified those statements in any way, you will then have a leg to stand on should you object to the discharge of your debts in bankruptcy court.

These critical steps can be useful in other ways: They will force the debtor to be open and transparent. Securing accurate financial statements will help you assess the debtor’s financial health, potentially saving you from making a bad business decision (that is, lending money to a debtor on the cusp of financial ruin).

Contact Our Experienced Business Law Attorneys.

If you find yourself in need of advice and representation regarding a dischargeability dispute or any number of bankruptcy issues, our attorneys are experienced in representing both debtors and lenders and are here to help.

At Wilson Ratledge, we assist businesses in taking steps to keep them financially secure, while protecting them from legal pitfalls. For assistance growing your business or navigating a deal, contact one of our experienced North Carolina business attorneys today at 919-787-7711 or via our contact form below.