Collections Law/New York Debt Defense Lawyer
I hope you can help. I have some credit debts. I had a business with one other partner. Right after we ended the partnership, he entered into a loan agreement which was defaulted on. The attorney for the bank told me I was also responsible because he was my agent. I told the lawyer representing the bank that the loan was taken out after the partnership ended. My former partner as since filed Chapter 7 bankruptcy. He told me that even though my former partner filed for bankruptcy I was responsible under implied agency. Is that true? Can I be held responsible for a debt my former partner took out right after we dissolve the partnership?
The other question I have involves a different debt we had during the partnership. We had a revolving line of credit through a local bank. There was a mistake in the billing. I had a meeting scheduled with someone at the bank to discuss the issue which got canceled. Now I am being sued on that account by a collection attorney for the bank. When I spoke to the lawyer for the bank I told him that there was a mistake in two of the statements we received. He said that doesn't matter because I am liable on an account stated. Is that true? I had a meeting scheduled to talk about the errors in the statements which got canceled though no fault of my own. Thank you for your advice on these two stressful situations I got into.
Also, can you represent me in these two matters? Thanks again! I live in New York.
With regards to your first question, after a partnership is shown to exist, an admission of one partner, relating to matters within the scope of the partnership business, is binding upon the other partners for, as to such matters, each partner is deemed the agent of the others. Upon dissolution of the partnership, however, the implied agency of the partners ceases, except to matters necessary in order to wind up the partnership affairs, and, thereafter, the power of one partner to bind other partners by admissions with respect to previous transactions ceases. For the purpose of proving the partnership, the declarations of one alleged partner are inadmissible against the others.
With regards to your second question, when a creditor send a bill to a debtor, and the debtor keeps it and fails to make objections to it within a reasonable time, the creditor is justified in bringing suit upon the theory of an account stated, and on the trial the debtor's failure to reply will be construed as an acquiescence in the bill as rendered.
Failure to object within a reasonable time is not conclusive of the fact of actual agreement to the correctness of the account, but is merely competent evidence as an admission, subject to be rebutted by proof of circumstances from which counter inferences may be drawn.
The principle which lies at the foundation of evidence of this kind is, that the silence of the party to whom the account is sent warrants the inference of an admission of its correctness. This inference is more or less strong according to the circumstances of the case. It may be repelled by showing facts which are inconsistent with it, that the party was absent from home, suffering from illness, or as in your case, expected shortly to see the party, and intended, and preferred to make his objections in person.
Likewise, the inference may be repelled by showing that the bill was not received until very shortly before the litigation began, so that objection would have been useless, or that the bill was inconsistent with the express terms of a written contract.
Hope this answers your questions and concerns. Give us a call for further assistance with these cases.
Jason A. Shear, Esq.
Attorney at Law
Admitted in NY & NJ
Law Offices of Jason A. Shear
Buffalo, New York
Consumer Protection Attorneys