Believe it or not, I know very much
what this feels like. I will not go into more details, but suffice it to say that I have been in your shoes, more or less. It is a very difficult feeling, especially because you have little control over whether or not they would actually pay you out, with a constant worry that they may simply run the business under and walk away, and it is maddening. I relay my condolences, because I know very close to what you are going though. What are my remedies to collect?
You can sue again, although this time you may attach both the business and the guarantor. Allow me to explain.
To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract
," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state.
Here, you have come into another agreement with the business and the individual via the agreement in prior suit, which they have now violated. As such, both are liable for breach of contract
The essential elements of a breach of contract cause of action that must be prover are:
(1) There is a valid contract
(2) The plaintiff performed or tendered performance according to the terms of the contract;
(3) The defendant breached the contract; and
(4) The plaintiff sustained damages as a result of the breach.Valero Marketing & Supply v. Kalama International, 51 S.W.3d 345, 351 (Tex.App.- Houston [1st Dist.] 2001, no pet.).
Now, you may not be able to get as much out of the business if there is already a UCC-1 senior creditor, but whatever you do not get out of the business, you should be able to get out of the guarantor, personally. Ergo, they stand the most to lose, and as such, you may wish to let them know that you would proceed to force satisfaction of judgment after another suit, unless the business abides by the agreement struck, catches up, and continues payment.
If they have already ignored such a request, then the next step would be to file a Plaintiff's Original Petition
to pursue this in Court, against both parties.
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