In some jurisdictions, very little is required for a company to engage in the business of debt collection. However, after these companies use tactics and strategies readily available to the general public, there is little they can do. The next step for many of these debt collection companies, who charge a significant fee for attempting to collect a debt, is to hire a debt collection attorney to begin the litigation process.
Attorney Stanley P. Lieber has over 40 years of experience defending individuals from creditors and collecting debts on behalf of major corporations such as Wells Fargo Alarm & Guard, Familian Pipe & Supply and the radio station KROQ.
Qualified civil litigation attorneys with experience collecting a variety of debts must be proficient in dealing with multiple areas of debt recovery, including secured debts, unsecured personal debts, commercial debts, mechanic’s liens, and money owed after a judgment has been entered (just because a judge orders a person or corporation to pay does not mean the money is readily available – sometimes property attachments, bank levies, and wage attachments/garnishments are needed to be initiated or defended).
Other legitimate ways of recovering debts can include attaching assets prior to obtaining a judgment (to prevent an adverse party from hiding assets during litigation), establishing that an individual has improperly co-mingled funds with a corporation (a piercing of the corporate veil to bring an individual as a defendant), and contesting bankruptcy protection with challenges to various discharge attempts.
There are multiple ways that debt collection attorneys can be compensated. Sometimes, the attorney will agree to take on a debt collection for no initial payment, but instead will agree to only receive a percentage of any money he or she can recover (this typically happens only when liability on the part of the creditor is clear and the main issue is how much is owed or can be paid).
Other debt collection attorneys accept a flat fee to attempt to collect a debt, while some accept debt collection matters on an hourly basis. Depending on the circumstances, some debt collection lawyers will also accept a hybrid approach, taking a reduced fee in addition to a percentage of money owed.
While there is no right or wrong way of collecting attorney’s fees, creditors should always be careful that they do not hire an attorney on an hourly or flat-fee basis when the prospect of collecting a debt is not high. This could leave the debtor in a worse position than if he, she or it had not attempted to collect the debt in the first place. An ethical debt collection attorney will always advise a prospective Client whether or not the debt is worth pursuing in the first place.
As a creditor (one who is owed money), it is always critical to determine the likelihood of recovering money prior to investing in debt collection. Creditors with unsecured debt from debtors with no prospect of making any money to repay or debtors who can discharge debts owed in bankruptcy must be dealt with differently than debtors with big pockets who refuse to pay for a myriad of other reasons. Sometimes, the best financial decision is not to pursue a claim at all. Again, any reasonable collection attorney will give honest and realistic advice regarding the feasibility of pursuing a claim.
There are a number of procedural rules and statutes that an experienced debt collection attorney will know about. Whether it is a prejudgment attachment procedure or a post-judgment debtor exam or levy, expert knowledge can make the difference between collecting and not collecting a debt. In addition, one of the most important parts of a debt collection attorney’s job is to frame a settlement agreement in a way to protect the client in the event that the other party does not live up to the terms of the settlement.
Information about Judgment Debtor Exams
After a judgment is obtained against any person or entity, if that entity or person will not pay the amount ordered, an individual or entity that is owed money can take the debtor’s exam. In this judgment debtor exam, which is conducted under oath, the debtor can be asked about where he or she works, the amount of income earned monthly, the existence of assets such as stocks, personal property, bank accounts, and real property (real estate) are all valid topics that the debtor can be questioned about. A debtor can be asked about the location of any physical or real property, can be asked about any income, including income from savings or passive income (such as rental property income or dividends from securities investments).
A debtor is also subject to having those bank records or other documents such as property records, title documents, etc., subpoena’d for the debtor exam. A debtor can be forced to surrender any personal assets he or she is holding at the time of the judgment debtor exam and can be asked about vehicle ownership (including questions about how he or she arrived at the exam itself). Debtors can be questioned about credit as well – whether he, she or it has credit cards with cash advance eligibility, or retirement accounts and the ability to borrow against the principal investment.
If debtors fail to attend a properly noticed judgment debtor exam, the party conducting the exam can ask the judge to issue a bench warrant for the physical arrest of the debtor and can set bail, which the debtor must post or otherwise persuade the judge to remove the order. Further, if a debtor fails to answer questions or is otherwise evasive during a judgment debtor exam, the judge can order the answer to a specific question.
Unlike most ordinary litigation started in federal courts, a bankruptcy case usually affects the substantive rights of a vast group of creditors and other parties with an interest in the outcome of the case. As a result, bankruptcy courts (which are technically part of the federal court system) generally permit any party whose rights or remedies are affected by the case to appear before the court and petition for the forms of relief available under the Bankruptcy Code.
For example, a creditor may petition for relief from the automatic stay (which goes into effect once the debtor files a bankruptcy petition) or seek adequate protection to the extent a debtor is still using a creditor’s collateral during the life of the bankruptcy case. In short, various provisions of the Bankruptcy Code effectively provide standing for a creditor to pursue certain types of relief under particular circumstances.
Proof of Claims
Most creditor actions against a debtor are immediately and automatically stayed upon the filing of a bankruptcy petition (whether Chapter 7, 11, or 13). When a debtor files for bankruptcy protection, all of his or her creditor’s will be served with a notice of the filing. After receiving such a notice, the creditor must cease all collection activities (i.e., any attempt to collect on a debt, recover collateral, or other money owed – this includes actions such as lawsuits related to the debt, letters, phone calls, and other billing actions).
Thereafter, the creditor should file a claim with the bankruptcy court. Filing a proof of claim is the most basic method by which a creditor can protect its rights in a bankruptcy case. A proof of claim is essentially a written statement that notifies the bankruptcy court, the debtor, the trustee, assigned to the bankruptcy case, or other parties in interest that a creditor wishes to assert its right to take part in the distribution (i.e., receive a payout) of the [creditor’s] bankruptcy estate. Generally, in Chapter 7 or 13 cases where there exists assets to distribute, creditors must file a proof of claim in order to receive any payout.
In particular, unsecured creditors (e.g., holders of credit card or medical bill debt) absolutely must file a proof of claim for their claim to be allowed. On the other hand, most secured creditors (e.g., mortgage, car loan, and lien holders) are not required to file a proof claim in order to preserve their claims in a bankruptcy case. In no-asset Chapter 7 bankruptcy cases (i.e., the debtor essentially has no non-exempt assets to satisfy its debts and liabilities), the court may formally instruct creditors not to file a proof of claim because there will be no money to distribute. However, if assets later become available, the trustee assigned to the case will provide creditors with notice, enabling creditors to file a proof of claim.
Claim Objection Procedures
After a creditor has filed a proof of claim with the bankruptcy court, the debtor, trustee, or another interested party (i.e., an individual, group, or entity that has a financial stake in the outcome of the claim at issue) may object to the claim. In order to object to a creditor’s claim, the objecting party must file a written objection with the bankruptcy court. Thereafter, the objecting party must serve a copy of the objection and provide any notice of hearing on the creditor, debtor, and trustee at least thirty (30) days before the scheduled hearing. The following is a non-exhaustive list of common objections to creditor claims:
Ultimately, if an objection is filed to a particular claim, the creditor is typically required to prove the existence of the claim’s validity by providing supporting documentation.