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.

 

If you have an Arizona judgment, it is only a piece of paper until you take action to collect it.  A Writ of Execution is a process where the sheriff or constable seizes property of a judgment debtor and then sells that property at a public sale.  The proceeds from the sale are used to pay all or portion of the judgment balance.  A writ of execution must be issued by a court before a sheriff can take any action to enforce it.  In Arizona, there are 2 types of writs of execution:

• General Writ of Execution.  A general writ of execution allows the Sheriff to seize any non-exempt, personal property of the judgment debtor.  If the sale of the personal property does not satisfy the balance owed on the judgment, the Sheriff can levy and execute on the debtor’s real property.
• Special Writ of Execution.  A special writ of execution instructs the sheriff to seize a specific item of personal property from the judgment debtor and sell it.

If you need assistance obtaining a judgment in Arizona or help with enforcing it by using a writ of execution, contact Windtberg & Zdancewicz, PLC.  Our attorneys have experience in all matters related to litigation and enforcing judgments.

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, the majority of his debts are discharged or eliminated.  However, it is important for creditors to understand that certain debts are exempt from discharge under the law.  In other words, the debtor remains liable to pay these debts when the bankruptcy case is over.  The creditor is required to take affirmative action in the bankruptcy case to have the debt declared non-dischargeable.  Examples of non-dischargeable debts include:

Fraud – If it is proven that the debtor incurred certain debts as the result of fraudulent activities or under false pretenses, the debts will be non-dischargeable.  Typically, a creditor files a complaint alleging the fraud and a special hearing is held to determine whether fraud exists.

Credit Purchases – If the debtor buys luxury goods or services on credit, the resulting debt is not likely to be discharged, especially if the purchases were made within ninety days of the bankruptcy filing and the total amount of money owed to a single creditor is more than $500.

Taxes – Certain taxes cannot be discharged.

Child Support – The law provides that a debtor’s liability to pay alimony or child support payments cannot be discharged.

Student Loans – Most educational loans that are still outstanding in the debtor’s name are included in the category of non-dischargeable debts.  However, there can be exceptions to this general rule.

Fines – Bankruptcy law does not allow a debtor to discharge certain fines associated with criminal acts, such as criminal restitution ordered by a court, traffic tickets, or any other such charges.

Drunk Driving Liability – If the debtor has been found guilty of driving while drunk (or under the influence of drugs) and causing an accident and a court has ordered the debtor to pay compensation to the injured person, the compensation liability is non- dischargeable.

If you need assistance objecting to a debt being discharged in a borrower or customer’s bankruptcy, contact Windtberg & Zdancewicz, PLC,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.

 

Creditors who receive a Notice of Bankruptcy from one of their customers or borrowers should take the time to read it.  The notice provides creditors with a variety of important deadlines.  If you miss these deadlines, it is possible you will forfeit your right to make a claim or file an objection.  Below are a few of the deadlines that are typically listed on the Notice of Bankruptcy:

• Filing Date:  This is the date the debtor filed the bankruptcy petition and many other dates depend on this date.
• 341 Meeting:  The “meeting of creditors” as required under Section 341 of the Bankruptcy Code, will be scheduled by the Notice.  It is typically 30-45 days after the date the bankruptcy petition was filed.
• Proof of Claim Deadline: If the debtor files an asset case, creditors must file their Proof of Claim by a specific deadline or their claim may be deemed to be waived.
• Objection Deadline:  The Notice will provide you with the deadline to object to discharge.  A creditor must allege an objection to the discharge of its debt within 60 days after the first scheduled meeting of creditors.
• Deadline to Object to Exemptions:  If the debtor has claimed an exemption in error, a creditor can object to such exemption.  This type of objection must be filed within 30 days after the meeting of creditors has concluded.

There are other numerous important deadlines in a bankruptcy case, so it is important to consult with an experienced attorney to ensure that you do not waive any of your rights as a creditor.  To learn more, contact Windtberg & Zdancewicz, PLC, today!

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 are considering litigating a civil matter in Arizona, it is important to know a little about the court system.  Arizona has 4 levels in its court structure:

1. Limited jurisdiction.  Courts of limited jurisdiction are justice and municipal (or city) courts. These courts have jurisdiction over a limited variety of cases. The matters heard in limited jurisdiction courts are not required to be on permanent record, but many keep a record of the proceedings anyway.
2. General jurisdiction.  The Superior Court of Arizona is a general jurisdiction court and a statewide trial court. This court hears the widest variety of cases and keeps permanent records of court proceedings.
3. State appellate courts.  The state appellate courts have jurisdiction to review trials and decisions appealed to them. Most appeals come from the superior courts.
4. Arizona Supreme court.  The Supreme Court is not required to hear every appeal.  The Supreme Court justices review Petitions for Review of a court of appeals decision and decide whether or not they will hear the case.

If you have a civil matter you are considering litigating in Arizona, it is essential to retain the assistance of experienced and knowledgeable attorneys like Marc Windtberg and Michael Zdancewicz.

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.

 

Many creditors are put into a tough situation because their court case is moving slowly, but they are aware that the debtor is taking action that will make the lawsuit meaningless.  Examples include a lawsuit that involves perishable items or collateral that is quickly declining in value because it is in the debtor’s possession.  These emergency situations may allow the creditor to use extraordinary measures to seize the debtor’s property before the court has rendered a judgment.

One pre-judgment tool that is available to creditors in Arizona is the attachment procedure.  The writ of attachment instructs the sheriff to seize, hold, and protect the debtor’s property to  satisfy the creditor’s potential judgment.  A writ of attachment can be used for both personal and real property.

Below are 4 common scenarios in which a court may grant a writ of attachment:

1. A lawsuit based upon contract for payment of money that is not fully secured by collateral.
2. A lawsuit pending for damages and the defendant is about to dispose of or remove the collateral out of the applicable court’s jurisdiction.
3. A lawsuit for damages upon a contract against a defendant not residing in Arizona (or a foreign corporation doing business in Arizona).
4. A lawsuit upon a judgment of any state.

If you are interested in learning more about the use of a writ of attachment, contact the attorneys at Windtberg & Zdancewicz, PLC to schedule an appointment.

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.

 

One of the new trends in collection methods is the use of social media.  While it can be an effective means for gathering information on a borrower, it can also be an ethical trap for debt collectors who are not careful.

When it comes to communications with debtors, the best policy is better safe than sorry.  Thus, avoiding direct contact is probably the safest route.  However, anything that is posted by the debtor on a public forum is fair game.  Also, anything posted by friends of your debtor on a public forum is also fair game.

When social media first become popular, it was amazing what people would post about themselves.  Over time, the majority of social media users have wised up about keeping private information, well, private.  However, there are still a lot of people that post information that is helpful to creditors.  There are also less-known websites that can be beneficial.  The safest method for debt collection is to hire experienced and knowledgeable collection attorneys like Marc Windtberg and Michael Zdancewicz.

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.

 

Creditors work hard to obtain judgments against debtors, but too many of them allow their judgment to expire.  In Arizona, a judgment is effective for five years from the date it is entered and docketed by the Clerk of the Court.  If a creditor fails to timely file a renewal affidavit, or bring an action on the judgment within five years, the judgment debtor is released from the obligation.  Thus, it is imperative that creditors be aware of this statute for renewing judgments and take the necessary action to keep the judgment debtor’s liability intact.

The purpose of the renewal affidavit is to notify any interested parties of the existence of the judgment.  When it comes determining the five year deadline, creditors should be aware that the date of entry of the judgment is often not the same date as when the judgment was signed by the judge.

When a creditor timely renews a judgment, it is important to have the renewal recorded in every county where the judgment debtor has real property.  This allows any judgment lien against those pieces of property to remain intact.

If you have a judgment in Arizona and you need assistance with renewing it or taking collection action on it, please call the attorneys 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.  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.

 

A secured creditor is one who has a lien on, or interests in, property owned wholly or partially by the debtor.  When the debtor files a bankruptcy case, the automatic stay immediately goes into effect.  The stay prohibits creditors from any collection activity against the debtor or the property of the debtor’s estate.  In other words, creditors cannot enforce their lien rights in the property while the automatic stay is in place.

If a creditor wishes to proceed with enforcing lien rights, the creditor may file a motion for relief from the automatic stay.  This type of motion typically requests that the court lift the stay as to the creditor’s specific collateral because the debtor has failed to meet certain requirements, such as remaining current on loan payments or maintaining adequate insurance on the property.

A creditor may also be allowed to proceed with enforcing its lien rights against property when it is no longer property of the debtor’s estate.  This occurs when the trustee abandons the property during the bankruptcy case or by operation of law when the case has been fully administered and the property is deemed abandoned.

If you are a secured creditor interested in learning more about your rights in a bankrupt debtor’s property, contact Windtberg & Zdancewicz, PLC today!

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We are experienced in creditor’s rights and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.