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Reasons
Not to Foreclose on an Agister's Lien
Non-paying
boarders and abandoned horses have always been a
significant problem for boarding stables, and judging
from the volume of calls we receive at Equine Legal
Solutions, the problem is escalating quickly. While state
agister's lien laws typically provide the boarding
stable with an automatic lien on the horses for unpaid
past due board, foreclosing on that lien may not make
sense. Here's why:
Almost
Worthless Collateral
The
horses a non-paying boarder leaves behind seldom have
much market value, and even if they do, that market
value will be compromised by the situation.
Registration papers (if the horse is even registered)
will be hard, if not impossible, to obtain. Boarding
stable lien laws frequently require that the horse be
sold at public auction, which almost certainly means a
lower price than a private sale. Even if a private
sale is legally permissible, prospective buyers will
be spooked by the possibility of title problems. Note
that all of these issues are exacerbated in a soft
horse market.
Expense
Horses
are expensive to keep, and getting more expensive all
the time due to the rising costs of hay, feed and
bedding. To properly foreclose on a stableman’s lien
and sell the horses, it will likely take at least 60-90
days, often longer. During that entire time, you will
have to feed and care for the horses at your own
expense, and you may not ever recoup those expenses.
Not only that, you will have to hire an attorney to
represent you in the civil lawsuit you will almost
certainly need to bring to properly foreclose on the
lien. Most attorneys charge several hundred dollars
per hour and require a substantial deposit or retainer
up front, and unless you have a signed boarding
contract that provides for attorneys' fees in the
event of a lawsuit, you will have virtually no chance
of recouping your attorneys' fees.
Better
Alternatives
If
you allow the horses to leave the property, it limits
the amount that the boarder owes you, making it more
likely that the claim can be brought in small
claims court. And, you can usually convince the
boarder to make at least some cash payment when they
take the horses, reducing the amount of money that you
have to chase. If, when the boarder arrives to take
the horses, you can convince the boarder to sign a
written statement that they do owe you the amount in
question, it will make pursuing your claim for money
damages that much easier. In small claims, you can
represent yourself and therefore do not have to incur
the expense of hiring an attorney. And, contrary to
popular opinion, small claims judgments CAN be
enforced. For example, if the boarder has a job, you
can garnish their wages. If the boarder owns a home,
you can put a lien on it, ensuring that you will be
paid if the property sells. A claim reduced to a court
judgment is far easier to enforce than a claim of
lien, and in most instances, judgments earn interest
until they are paid and you can usually recoup the
cost of enforcing a judgment.
Potential
Liability
Horses
are fragile. During the months it will take to
foreclose on your boarding stable lien, you will be
caring for the horses and if something happens to
them, the horse owner could sue you.
Opportunity
Cost
While
you are feeding and caring for horses that belong to a
non-paying boarder, those horses are occupying stalls
or pastures that could be occupied by horses belonging
to a good paying customer.
The
Hassle Factor
Let's
not forget about your quality of life.
Foreclosing on an agister's lien is a lengthy,
expensive and time-consuming process that typically
leads to a lot of stress for the boarding stable
owner. The horse owner often appears at the eleventh
hour wanting to negotiate a deal or trying to stop the
foreclosure process, and they always seem to show up
on a holiday or weekend. When the stable owner refuses
to allow the boarder to take the horses, the horse
owner will usually try to bring the sheriff out to
intervene. Typically, the sheriff will arrive, hear
the other side of the story and tell the parties that
the situation is a civil matter and therefore law
enforcement will not get involved or allow the boarder
to take the horses. However, such situations
frequently turn into a scene before that happens, with
shouting, threats and worse.
Additional
Information:
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