- Collection Remedies
Why people repay debts
3 kinds of judgments
?(1) consent judgment: both parties agree to stipulations/may reduce(2) default
judgment: didn’t respond according to rules of civil procedure
caveat) has to prove damages(3) judgment by confession: must be included in original documentMost states prohibit (class D misdemeanor)
consumer or business?
Fair Credit Reporting Act (FCRA)
- Gives debtor opportunity to fix monster inaccurate information- Asked to enter own view regarding disputable information- Entitled to copy of credit report
Fair Debt Collection Practices Act
Are attorneys bound by FDCPA?
Yes, if engaged in collection practices.-
Can’t harass consumer debtor to gain info on them
Can’t call at unusual hours
Can’t call if you know debtor is represented by attorney
Can’t call debtor at work if you know that employer prohibits
- Caller must stop communicating if debtor requests cessation-
Collection Agency can’t use threatening language
Judgment Creditor’s Objectives
conceptual framework for all cases)(1) Identify property available to satisfy judgment- unencumbered assets (assets with no security interest)- non-exempt assets(2) Locate assets (physical)(3) Keep assets in place (prevent transfer, sale, disposition)
(4) Realizing (execute) assets (levying, liquidating…)
Beneficial to client
** Don’t get fixed on
one asset!! Multiple assets!!
Should always have backup plan!!
: Non-bankruptcy negotiated settlement that consensually modifies contractual rights ofcreditors, in order to resolve the financial difficulties of debtors
Readjustment in credito
expectations! (possible in both consumer/business)Examples) may give an extra day, change in interest rate, change in issuance ofdividend, allow debtor some security interest status
?- can avoid bankruptcy, avoid costs- can influence business-
found out security interest doesn’t exist
?- Not feasible- General economic situation-
Problem with complexity of claims (unions, environmental, products liability, tax…)
(law rewards the diligent)(1) Dormancy: Lack of effort to collect
still valid but unenforceable (mostly procedural and socould probably revive)
Some creditors may attempt to collect once a year to keep it alive(2) Limitations: Judgment no longer (good, valid, enforceable)
file new claimbased on old judgment before limitations and get new judgment and extend another 10 years.