Prejudgment interest is collectible in Arizona if there is an agreement between the parties providing for the payment of interest on the debt.  It is interest awarded on a claim for a period of time before the court renders judgment in a lawsuit.  Arizona law permits the collection of interest on liquidated claims.  A liquidated claim is a claim which can be precisely determined by operation of law or by the terms and conditions of the agreement made by the parties.

In a liquidated tort claim, prejudgment interest may be awarded as a matter of right in the case.  This is true even if there is uncertainty as to liability.  It is important to check your specific state’s law regarding the legal rate of interest on a judgment.  In Arizona, the interest on a judgment is defined by statute (unless specifically provided for by contract).

Many times, prejudgment interest accrues from the date of demand.  Thus, it is wise for creditors to make demand for payment in writing which reflects the date of demand.

If you are a creditor interested in learning more about collecting prejudgment interest, contact the offices of Windtberg & Zdancewicz, PLC.
The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We handle many types of business disputes on behalf of both creditors and debtors. Our attorneys handle cases from pre-litigation negotiations through litigation, obtaining and enforcing judgments to collect what our clients are owed.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

 

When a borrower or customer files for bankruptcy protection, it is important for creditors to file a Proof of Claim (POC). A POC is an official document filed in the debtor’s case to assert a claim against the assets of the bankruptcy estate.  It is the creditor’s assertion that money is due and owing to the creditor.  The claim also tells the court they type of claim being asserted (priority, secured, or unsecured).

Chapter 7

You must examine the documents you receive from the bankruptcy court.  In most Chapter 7 cases, few proof of claims are filed.  This is because an unsecured creditor only gets paid if the Chapter 7 trustee sells property.  Most Chapter 7 debtors have only assets that are covered by exemptions, and therefore not available to the trustee to sell.  However, whenever in doubt, it is generally safer to file a claim.

Chapter 13

It is more common for creditors to file proof of claims in Chapter 13 filings.  Secured creditors must attach additional documentation to the claim form to show the type of collateral pledged and evidence that the security interest is valid, properly documented, and timely filed with the appropriate agency (otherwise known as the secuirty interest being “perfected”).

A secured creditor must also set forth what they believe the collateral is worth.  This information is helpful because a Chapter 13 debtor typically pays the secured creditor the value of the claim, plus interest, under the Chapter 13 plan.    The value claimed by the creditor is not definitive, but it provides the debtor with what the lender believes the claim is worth.

A creditor who fails to file a proof of claim in a Chapter 13 case runs the risk of not sharing in any distribution under the plan.  If you hold an unsecured claim, this may not be a big deal because unsecured creditors typically are paid very little, if anything, under the plan.  However, for most secured creditors, filing a claim is extremely important.

If you need assistance asserting your claims in bankruptcy cases, contact the attorneys at Windtberg & Zdancewicz, PLC, to discuss how we can help you.

 

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

 

If you have been involved in a motor vehicle accident that was the result of another person’s negligence, you may decide to file a lawsuit in order to collect the damages you incurred.  Once you are awarded judgment in your favor, you can begin the collection process like other creditors.  However, it is important to note that you have an additional tool in your arsenal that is not available to all Arizona creditors.

When a judgment is the result of damages from an automobile accident, a “notation” may be placed against a judgment debtor’s driver’s license if the judgment remains unpaid 60 days after the judgment is entered.  The notation effectively results in the judgment debtor’s driver’s license being suspended.  It will also prevent the judgment debtor from getting a new license until the debt to you has been paid.

The judgment creditor must request that the clerk of the Court to complete a form certifying the judgment has not been satisfied.  The creditor must also obtain a certified copy of the judgment.  The appropriate documents must be sent to the Motor Vehicle Department.

If you are interested in learning more, please contact the offices of Windtberg & Zdancewicz, PLC.

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We handle many types of business disputes on behalf of both creditors and debtors. Our attorneys handle cases from pre-litigation negotiations through litigation, obtaining and enforcing judgments to collect what our clients are owed.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

 

Many creditors incorrectly believe that they should not retain an attorney to represent their interests in a borrower’s bankruptcy case.  A bankruptcy filing does not necessarily mean that the debt is gone forever.

Just one meeting with an experienced creditor’s attorney can also answer many important questions regarding your claim against the debtor.  It is important that creditors don’t waive their rights by not taking any action in the case, but it is also important that you only take action that is permissible under the law.  Violating the automatic stay is serious business!

Below are some of the questions you may want to ask an attorney:

• Are the actions you are currently taking in violation of the automatic stay?
• If you have a secured loan, what is the status of your collateral and what can you do to insure it is protected?
• Is the debt owed to you dischargeable?
• Should you file a Proof of Claim?
• Are there any exemptions claimed by the debtor that you should object to?
• Should you file an adversary proceeding?
• How much will it cost you to pursue your rights versus your chance of success in collecting the debt owed to you?

If you are interested in learning more about a creditor’s rights in a bankruptcy case, call Windtberg & Zdancewicz to schedule an appointment.

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

 

When Arizona creditors file a lawsuit against a borrower or customer, they should seek an award for attorney’s fees as a part of the judgment rendered.  Most loan documents and credit applications contain a provision providing for the award of attorney’s fees.  If your contract does not contain this provision, you should immediately contact the offices of Windtberg & Zdancewicz, PLC.

The prevailing party in a lawsuit has the burden to prove that the fees requested are reasonable.  This means that your attorney must keep detailed records so the judge can evaluate the services provided, the amount of time expended on the case, and the overall reasonableness of the attorney’s fees.  Any uncertainty regarding the reasonableness of the attorney fees will be resolved against the party seeking fees.

The attorneys at Windtberg & Zdancewicz keep detailed, accurate and current records of the legal work performed on your case.  We will strive to not only win your case, but get an award for your attorney’s fees as well.  If you are interested in learning more, please contact us today!

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  Our attorneys handle cases from pre-litigation negotiations through litigation, obtaining and enforcing judgments to collect what our clients are owed.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

 

Hopefully you have read our blog titled “Writ of Execution….Seizing your judgment debtor’s assets,” and have an understanding of writs of execution.  While many people believe that a writ of general execution is the preferred method to use because it has wider coverage, it may not be as useful as it may appear.

A writ of general execution is not as useful as it may appear. First, there are a number of exemptions in the law which protect certain things from execution. For example, personal items like a diamond wedding ring can be exempt.  Whether or not a particular item is exempt can be contested.  Luxury personal property items are typically not exempt.  For example, art work or other jewelry would probably not be protected from execution.  Since this is a grey area, the Sheriff’s Deputy who serves the writ and seizes the property, may err on the side of the debtor.

An additional issue that may arise with a general writ of execution is the rights of secured parties to the debtor’s property.  For example, the debtor may have a really nice television in his home, but execution on it is not allowed because the television was rented by the debtor.

Thus, while a writ of special execution is more limited in scope, it provides the Sheriff’s office with a clear direction of what should be seized.  Thus, if the deputy locates the item listed in the writ of special execution, he will be more inclined to seize it from the debtor.

Both forms of writs of execution serve a purpose.  Thus, it is always wise to discuss how to proceed with experienced attorneys like those at Windtberg & Zdancewicz, PLC.

 

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  Our attorneys handle cases from pre-litigation negotiations through litigation, obtaining and enforcing judgments to collect what our clients are owed.   If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

 

If you are a creditor who has a borrower that discharged the debt owed to you in a bankruptcy filing, what do you do if the borrower wants to voluntarily repay the discharged debt?  There is no quick and easy answer to this question, but the best advice is proceed with caution.

A borrower may have personal reasons for repaying some of his discharged debts (especially debts owed to family or friends), or he may be trying to maintain a business trade credit relationship.  As a creditor with a discharged debt, you are prohibited from taking any steps to collect the debt.  Thus, this situation could be fairly risky.

In order to fully protect yourself, a prudent creditor may wish to seek the advice of competent counsel like the attorneys at Windtberg & Zdancewicz, PLC.  You must be careful in any discussion or documentation of the discharged debt.  It is also wise to keep such debts separate from all post-bankruptcy, non-discharged debt to avoid confusion.  The discharged account requires no payment, so any payments received from the debtor are a gift.

If you are interested in learning more about how to handle payments of a discharged debt or anything other creditor’s rights matter, please contact our offices today.

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We handle many types of business disputes on behalf of both creditors and debtors.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

 

Once you have obtained an Arizona judgment (or domesticated a foreign judgment), the important process of collecting on the judgment begins.  There are many collection tools available to creditors, but typically your efforts will be more successful with attorneys like those at the law firm of Windtberg & Zdancewicz, PLC.

One method for obtaining information regarding the judgment debtor’s assets is to conduct an examination.  A judgment debtor examination directs the debtor to appear in court or at the attorney’s office to answer questions concerning his or her assets. Additionally, a creditor may issue a subpoena duces tecum that requires the debtor to bring certain documents that identify his or her assets to the examination.

In order to compel a debtor to appear for a judgment debtor examination in Arizona, one must:

1. File the appropriate motion with the court.

2. Have a subpoena duces tecum issued.

3. Obtain a court order that provides for issuing a civil arrest warrant against the debtor if he or she fails to appear and comply with the order.

4. Obtain personal service of the debtor examination documents on the debtor.

It is important to understand that the debtor must have been personally served with the examination documents in order for an arrest warrant to be issued.  Alternative forms of service are not sufficient to obtain an arrest warrant in the event the debtor fails to appear.  If a civil arrest warrant is enforced, the sheriff will contact your attorney (or other officer) and advise him that they have detained the debtor, and the court will set a time for questioning.

If you are need assistance collecting on a judgment in Arizona, the attorneys at Windtberg & Zdancewicz, PLC, are prepared to help.  Please call us today!

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We handle many types of business disputes on behalf of both creditors and debtors. Our attorneys handle cases from pre-litigation negotiations through litigation, obtaining and enforcing judgments to collect what our clients are owed.   If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

 

 

 

As a creditor, the last thing you want to receive is a notice from the bankruptcy court stating that the debtor that owes you money has filed a case!  It is even worse if you also receive a letter from the bankruptcy trustee demanding that you return the money that the debtor paid you within the 90 days preceeding the bankruptcy filing.  If this happens to you, contact the attorneys at Windtberg & Zdancewicz, PLC, to get help.

The Bankruptcy Code does not allow a debtor to make “preferential payments” or to prefer one creditor over another.  This means that the debtor cannot pay some creditors prior to filing for bankruptcy while not paying other similar creditors.  The law provides that certain payments made on a prior debt within 90 days before a bankruptcy filing (or within one year if you are a relative or insider of the debtor) are recoverable by the trustee UNLESS you have one of the many defenses available (which will be covered in a future blog).

If you are a creditor who has questions regarding your rights in a bankruptcy matter, please contact Windtberg & Zdancewicz, PLC, to discuss your options.  Additionally, if you are accepting payments from a client or customer who appears to be sliding into bankruptcy, you should contact our attorneys to discuss possible preventative steps to take to protect what has been paid to you.

If you are a creditor who needs advice regarding preferential payments or other bankruptcy related matters, contact

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We handle many types of business disputes on behalf of both creditors and debtors. Our attorneys handle cases from pre-litigation negotiations through litigation, obtaining and enforcing judgments to collect what our clients are owed.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

 

The writ of attachment is a powerful tool for creditors trying to collect from a defendant who may dispose of property before plaintiff is granted judgment.  The writ of attachment instructs the sheriff to seize and hold property of the defendant to satisfy the plaintiff’s potential judgment.  To learn more about attachment, please read our blog titled “Can you collect BEFORE you have a judgment?”  This blog focuses on the procedure for obtaining a writ of attachment.

Below is a general summary of the procedure for obtaining a writ of attachment in Arizona:

1. File the required documents for a provisional remedy such as a writ of attachment;
2. File an affidavit establishing the reasons or basis for obtaining a writ of attachment;
3. Execute a bond made payable to the debtor in an amount not less than the amount for which the action is brought, and deliver it to the sheriff;
4. Obtain approval of the bond by the officer issuing the writ;
5. Upon receipt of the writ of attachment, the sheriff levies upon so much of the defendant’s non-exempt property subject to levy under the writ and is found within the county as is sufficient to satisfy the writ.

The bond must be conditioned that plaintiff will prosecute the action and will pay all damages and costs that may be sustained by defendant by reason of the wrongful obtaining of the attachment.  It is also important to understand that, in addition to the attachment bond, the levying officer will require the plaintiff to execute and deliver and indemnity bond in an amount double of the claim.  Thus, to obtain and levy upon a writ of attachment, two bonds are required.

If you need assistance with obtaining a writ of attachment or other pre-judgment remedy, contact the office of Windtberg & Zdancewicz, PLC, today.

The attorneys at Windtberg & Zdancewicz, PLC, provide Arizona residents and businesses with experienced legal representation in all creditor’s rights matters.  We are experienced in garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance or are interested in learning more, please contact us at (480) 584-5660.