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Sunday, October 19, 2014

Automated Clearing House Judgment Payments

Some judgment enforcers make a good living by using payment plans with their judgment debtors. What if your debtor wants to pay using ACH (Automated Clearing House) payments? What if they want to pay using check drafts, or with standard monthly invoicing and debtor-written checks?

One of many judgment articles: I am not a lawyer, and this article is my opinion based on my experience, please consult with a lawyer if you need legal advice.

What matters most is that you get paid, and ACH can be a valid way to be paid. If your debtor wants to pay on their judgment with ACH, let them initiate the electronic bill pay transaction, and have them schedule it on their side. 

A debtor's ACH payment transaction could come back as "account closed" or "NSF", and then you will be back to square one. With a returned check, at least in California; there are returned check laws that allow you to pursue the debtor with a new lawsuit. It may not be worth doing, but having that option might help keep pressure on your debtor.

Put the responsibility of getting the payment to you on your debtor. As an incentive for the debtor, payment plans can be structured to lower the amount due each month, when compared to the 25% of disposable income; and there will not be a need for a payroll garnishment. In such a case, the debtor will probably know that if there is ever a non-payment, then the full payroll garnishment will be started/restarted.

Some judgment enforcers do not put payment plans into written agreements, because of the potential novation problem. Others use written settlement agreements, and sometimes they are necessary. An example is if the debtor is trying to get their drivers license back, because the DMV requires a court approved payment plan on file before they will reinstate.

Another reason to use a signed, written payment agreement plan is that if you have to go back to court, a sympathetic judge who feels badly for taking the debtor's money; will probably quickly shift gears when they see the debtor defaulted on a payment plan they had previously agreed to. A payment plan can be as simple as  something like this:

Mr. Debtor, you have agreed to pay $XXX per month via check, money order, or cash. The payment must be postmarked or received on or before the XX of the month, or I will continue doing everything I can to enforce this judgment under the laws of this state.

If your debtor asks to make an ACH payment, have them set up the transfers to your bank account. If the debtor cooperates, each month money will automatically come in. And, if there are any fees attached to the ACH transfers, they will have to pay them.

When debtors want to pay by cash, some enforcers keep a free business checking account at several banks; so they can tell debtors the addresses, and asks them which bank is closest. Then, they give them the account number to make a deposit. Then, they ask the debtor to forward the bank's email them afterwards, so they can verify the deposit and credit it to the amount due. This has the advantage of not having to wait for a check to clear.

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Mark D. Shapiro - Judgment Expert - http://www.JudgmentBuy.com - where judgments get Recovered.

Friday, October 17, 2014

Yosemite upgrade on OSX - stuck on iCloud drive setup

OMG, this AM my mac prompted me to update, so I did, it's been 6 hours so far, and it's stuck on iCloud Drive setting up.  Maybe because I have so many emails and such and I've never used iCloud syncing before?  But 6 hours? Wowee

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Mark D. Shapiro - Judgment Expert - http://www.JudgmentBuy.com - where judgments get Recovered.

When Can You Pull A Credit Report?

When you are going to recover a judgment, and you get a notarized assignment of judgment returned to you; can you pull a credit report on the debtor before you file that assignment at the court?

One of many judgment articles: I am not a lawyer, and this article is my opinion based on my experience, please consult with a lawyer if you need legal advice.

I think if you read the full text of the Fair Credit reporting Act PDF at: http://www.consumer.ftc.gov/sites/default/files/articles/pdf/pdf-0111-fair-credit-reporting-act.pdf, you will probably decide that yes, you can pull a credit report before you file the assignment at the court.

The Federal law states that you must have a "permissible purpose". It defines several types of permissible purpose, and two that are especially relevant.

The first is to a person who (or a credit reporting agency) has reason to believe they intend to use the information in connection with a credit transaction involving the consumer, on whom the information is to be furnished, and involving the extension of credit to, or review or collection of an account of, the consumer.

The FTC interprets this to mean that a judgment creditor may lawfully obtain a consumer report AKA credit report, on their debtor without the foreknowledge or consent of the debtor.

A credit reporting agency may provide a credit report to someone who intends to use the information, as a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation.

As far as the FTC is concerned, a debt collector is servicing the account of the debtor. The FCRA allows one to obtain a credit report on a judgment debtor even before the assignment is filed at the court.

As a judgment enforcer that pulls credit reports, you will eventually get a call from someone wanting to know why you had to pull a credit report. You might tell them that you are a debt collector. They may rant and rave about how they think you have violated the FCRA, and that they will sue you. You might tell them to take their best shot, and you'll see them in court. Chances are that you will never hear from them again.

To play it safe, make sure you get an acknowledgment of assignment in your possession from the original judgment creditor, before you pull a credit report.

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Mark D. Shapiro - Judgment Expert - http://www.JudgmentBuy.com - where judgments get Recovered.

Tuesday, October 14, 2014

Judgments And Credit Reports

One way to increase the chances that your judgment will be paid, is when your judgment is placed on the debtor's credit report(s).

One of many judgment articles: I am not a lawyer, and this article is my opinion based on my experience, please consult with a lawyer if you need legal advice.

In the past, the best way to increase the odds that a judgment would be included, was to send copies of the judgment to the major credit bureaus. Now, the credit bureaus no longer take action on judgments sent to them by individuals. Now, they only get and accept judgment information coming from data research companies.

Usually, judgments are not automatically put on credit reports, unless the creditor takes a certain action; and even then, it is not guaranteed that a judgment will appear on their debtor's credit report(s). The way a creditor can increase the odds that their judgment will appear on credit reports, is to record a judgment lien or an abstract of judgment, at a county recorder's office.

Also, record new liens in any county where the recording may impact your debtor. Examples would be where they live, where their parents live, to catch probate payments; where they own business interests or property, etc.

Most data research companies looking for judgments, search for liens at the recorder's office. (A few look for judgments at courts.) This means that if there is no lien recorded, the credit bureaus will usually not see the judgment. It also means the older a judgment is, the less likely it will show up on a credit report.

Usually, judgments only remain on credit reports for 7 years. The only thing a creditor can do to increase the odds that their judgment will remain on the debtor's credit report past 7 years, is to renew their judgment and record an updated property lien which references the previous lien number; so it will not lose its priority.

So, every 7 years, get an updated lien (first renew your judgment every 7 years, or long before it expires) that lists the accrued interest, and any court-approved costs; and record it at the county recorder's office.

What if your judgment debtor changed their name or now uses an AKA, or their last name because of marriage? That means you will have to take some action with the court to reflect that new name, then record a new updated new lien with that AKA.

If your debtor moved to a location in the same state, you should record a lien in the county where they moved. If your debtor changed names or is now using an AKA, you should take a court action so that AKA will be reflected on the judgment, and then record an amended judgment lien.

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Mark D. Shapiro - Judgment Expert - http://www.JudgmentBuy.com - where judgments get Recovered.

Sunday, October 12, 2014

Tax Lien Priority

What if you have a lien or abstract of judgment recorded against your debtor's property. What if you later receive a letter from the county treasurer, advising you of an upcoming "Notice of Sale of Tax-Defaulted Property"?

One of many judgment articles: I am not a lawyer, and this article is my opinion based on my experience, please consult with a lawyer if you need legal advice.

Will the winning auction bidder of the property have to pay off your lien, to enable them to purchase the judgment debtor's property? And if not, what can you do to protect your interests?

Would the above situation be similar to a real estate sale of a liened property, where it would be necessary to file an action against the high bidder? Presumably, a prospective bidder will research the public records prior to bidding. A tax lien takes priority over all other liens. If you buy a property at a tax lien auction sale, you sometimes get it free and clear.

At tax lien auctions, other liens including mortgages, usually follow the property. To make sure, you could check with your county treasurer. If there is a lot of money at stake, you might want to order a litigation sale guarantee to double-check the title priority; to see which liens are senior to yours, including deeds of trust and tax liens.

Of course, you can research this yourself at the recorder's office. However, you might miss some improvement bonds or involuntary tax liens. Involuntary tax liens follow the judgment debtor's social security number, not the address of any of their real property(s). Also, you might not find specific liens that are for taxes, but which were filed in another county. So, it may be worth it to pay for a litigation sale guarantee report.

To protect your lien, the only option is to bid on the property and win, and pay off all senior and tax liens. If someone else wins the auction, the sale proceeds would be paid out in this priority:

1) To pay for the costs of the sale.

2) To pay of the past-due property tax liens.

3) To pay of all judgment liens prior to yours.

4) To pay off your judgment lien.

5) To pay off judgment liens after yours.

6) Any extra funds would go to the judgment debtor, who is the former owner of the property.

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Mark D. Shapiro - Judgment Expert - http://www.JudgmentBuy.com - where judgments get Recovered.

Saturday, October 11, 2014

Levying An IRA

What if your judgment debtor has a non-ERISA IRA retirement account, can that account be levied to satisfy your judgment?

One of many judgment-related articles: I am not a lawyer, and this article is my opinion based on my experience, please consult with a lawyer if you need legal advice.

If you levy a non-ERISA IRA, you will probably get a call from the brokerage's levy department, saying they have frozen the debtor's account, and are investigating whether that IRA account is exempted or not from garnishments.

In California, CCP 704.115 indicates that an IRA is exempt only to the extent necessary to provide for the support of the judgment debtor when they retire. If the debtor is currently not retired, it may seem the IRA account can be levied.

However, it does not matter whether the debtor is retired or not. The question is, how much money the debtor will need to live on in the future, whether currently retired or still working. So, it is very likely that some of their IRA money will be exempt.

The factors to consider include the debtor's current age, their likelihood of further contributions to their IRA in years to come before retirement, the debtor's other resources available for retirement, their earning potential, and the debtor and their dependents' likely needs at retirement, based on factors such as health.

The amount exempted under California's CCP 704.115 (e) varies a lot for different cases. A rule of thumb is that if the IRA funds are less than $250K, they are likely to be exempt, but if more than $250K then there is a chance of getting some of them. This rule often has exceptions.

Generally, if the IRA funds are less than $150K, you are probably wasting your time. I am not aware of any case where a creditor in recent years has successfully levied an IRA that was less than $150K.

However, contributions to IRAs are sometimes  fraudulent transfers, especially if there was a large sum recently added. Fraud is usually difficult to prove, and much tougher to prove if the debtor has been making small payments all along.

Also, the taxes and penalties that the debtor will be subject to, are mandatory exemption amounts. It is sometimes good news when the debtor has borrowed against their IRA, because that amount will no longer have the protection of an IRA. Of course, you would usually have to subpoena such records.

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Mark D. Shapiro - Judgment Expert - http://www.JudgmentBuy.com - where judgments get Recovered.

Friday, October 10, 2014

Federal Writs

What if you have a federal judgment in the central district of southern California, and you have located available debtor assets in northern California? Do you need to register your judgment in northern California? Will your writ of execution intended for a US Marshal in the central district of California allow a process server to serve the writ and levy in northern California?

One of many judgment-related articles: I am not a lawyer, and this article is my opinion based on my experience, please consult with a lawyer if you need legal advice.

Especially for bank levies, the answer is usually yes, if you use a registered process server to serve the writ and levy, and not the US Marshal. Sometimes you may need to get another writ. Note that the Marshal will always be the levying officer, and some federal Marshal's offices have really weird hours.

In my experience, it is fairly easy to get another writ in some other federal court, you do not need to register the judgment in the new federal court. However, you may want to register your judgment with the local federal court to get free writs, and other benefits.

To use a registered process server, usually you need to file with the local federal district court, something called a REQUEST AND ORDER FOR SERVICE OF PROCESS BY REGISTERED PROCESS SERVER, see Federal Rule of Civil Procedure Rule 4.1(a). Then, your process server can serve your writ anywhere within the jurisdiction of the court.

Rules are not the same in all federal district courts, so check with the court. In the central district of California, they have Rule 4(c) for a summons and Rule 4.1(a) for all other types of service. In that district, you must include wording that states "The US Marshal's Office will remain the Levying Officer" in your proposed order. In the southern district (San Diego or northern district) there is no need to designate a specific authorized person of any kind.

A REQUEST AND ORDER FOR SERVICE OF PROCESS BY REGISTERED PROCESS SERVER pleading looks something like this:

Case # CASE NUMBER
Pursuant to the provisions of Rule 4.1(a) of the Federal Rules of Civil Procedure, NAME OF JUDGMENT CREDITOR, hereby requests this honorable court to ORDER that NAME OF PROCESS SERVER, who is at least 18 years of age, of suitable discretion, not a party to the within action, and a STATE NAME Registered Process Server, Registration # REGISTRATION NUMBER in NAME OF COUNTY, be authorized and appointed to serve levies under writs of execution, subpoenas, orders to appear for examination and other such process necessary to effect post-judgment enforcement of the judgment in the within matter. The Office of the U.S. Marshal will continue and remain as the levying officer in the within matter.

I declare under penalty of perjury under the laws of the State of STATE that the foregoing is true and correct to my own knowledge, except as to those matters which are herein alleged on information and belief, and as to those matters, I believe them to be true.

Assignee of Record and Judgment Creditor
YOUR NAME AND SIGNATURE.

Then, supply your proposed order directly under your request, and that should look something like this:

Case # CASE NUMBER
(PROPOSED) ORDER OF THE COURT

IT IS ORDERED, ADJUDGED AND DECREED: That NAME OF PROCESS SERVER, a NAME OF STATE Registered Process Server, # REGISTRATION NUMBER in NAME OF COUNTY, is hereby authorized and appointed to serve levies under writs of execution, subpoenas, orders for examination, and other such processes necessary to effect post-judgment enforcement of the judgment in the within matter; and IT IS FURTHER ORDERED, ADJUDGED AND DECREED: That the Office of the U.S. Marshal will continue and remain as the levying officer in the within matter.

Honorable NAME OF JUDGE
Dated DATE
Judge, U.S. Bankruptcy Court

What if you want to file a "Notice of Lien" in a federal case. Can a notice of lien be placed on your debtor, if they are a plaintiff in a federal case; based on a civil money judgment from a state court case? Federal Rule of Civil Procedure Rule 69, subdivision (a)(1) and (2), suggests that it can be done. You should probably also serve the debtor with a debtor examination, and give notice to the plaintiff's lawyer(s) in the federal case, along with a copy of the proof of service, citing In Re Burns (9th Cir. BAP 2003) 291 BR 846.

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Mark D. Shapiro - Judgment Expert - http://www.JudgmentBuy.com - where judgments get Recovered.