Filing a proof of claim is done under penalty of perjury and subjects the signor to monetary fines if it is established the proof of claim is false or misleading.  Filing a proof of claim is serious business.  A proof of claim is prima facie evidence of the amount of the creditor’s claim, unless there is an objection to the claim.

Objections may come from the debtor, trustee, or other interested party.

Some objections include:

▪       amount is incorrect

▪       claim includes improper interest or penalty charges

▪       claim indicates it is a priority or secured claim when it is not

▪       creditor filed the claim to harass the debtor

▪       creditor did not attach supporting documentation

▪       the claim is late

Generally, in a Chapter 7 bankruptcy case, only the Bankruptcy Trustee may object. Chapter 7 debtors generally will not qualify as a “party in interest” –a person or entity with a financial stake in the outcome of the claim at issue–for the purpose of objecting to a claim.

The objecting party must present sufficient evidence that the creditor’s claim should not be allowed. If the objecting party produces such evidence, the burden of proof shifts back to the creditor to prove their claim.

Chapter 13 cases are different in that any party in interest, including the debtor, may object to a claim.

To learn more about bankruptcy proof of claim, or need assistance from an attorney, contact Windtberg & Zdancewicz to schedule an initial consultation.

The attorneys at Windtberg & Zdancewicz, PLC, provide Arizona residents and businesses with experienced legal representation in all collection matters.  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 with your collection matters, please contact us at (480) 584-5660.  

It is helpful to understand basic terms associated with bankruptcy proceedings, such as proof of claim.  A proof of claim is a written statement notifying the bankruptcy court, debtor, trustee, and other interested parties that a creditor wishes to receive a distribution from the bankruptcy estate. In most Chapter 7 and Chapter 13 cases with assets, all unsecured creditors must file a proof of claim to get paid.

The filing deadline is usually included with the first notice sent to creditors, informing them that a petition has been filed and a date set for the meeting of creditors. This notice also sets the deadline to file objections to the discharge. Extensions are not usually granted, but can be if a creditor shows extenuating circumstances or excusable neglect.

Forms are available for filing a formal proof of claim.  The form requests basic information including type of claim, basis for claim, amount owed and supporting documentation.

Some courts will accept an informal proof of claim from a creditor if it:

▪       Is submitted in writing

▪       Includes a demand against the bankruptcy estate

▪       Demonstrates the intent to hold the estate liable

▪       Is filed with the bankruptcy court

▪       Is deemed fair under the circumstances of the case

The bankruptcy judge decides whether an informal proof of claim will be allowed.  In no-asset Chapter 7 cases, a court may instruct creditors not to file because there will be no money to distribute. If assets become available later, the trustee must provide creditors with notice, after which creditors must file a proof of claim.

To learn more about bankruptcy proof of claim, or if you need assistance filing a proof of claim, contact Windtberg & Zdancewicz to schedule an initial consultation.

The attorneys at Windtberg & Zdancewicz, PLC, provide Arizona residents and businesses with experienced legal representation in all collection matters.  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 with your collection matters, please contact us at (480) 584-5660.  

What do you do if you obtain a judgment, but the debtor still refuses to pay? An experienced creditor’s attorney can help you with post-judgment discovery, including conducting an examination of the debtor to determine the judgment debtor’s income and assets. During this exam, a knowledgeable lawyer can determine if any assets were concealed or fraudulently transferred to avoid satisfying your judgment.

An examination of the judgment debtor is initiated by issuance of a subpoena duces tecum or order to appear, and is similar to pre-judgment depositions, except that the specific purpose is to identify ways to satisfy the judgment. Your attorney will create a list of financial documents that the debtor must provide, including:

• Tax records
• Pay stubs
• Title to real estate
• Bank statements
• Insurance policies
• Credit card statements
• Stock or royalty holdings
• Business interests
• Any other financial document deemed relevant

Most creditor rights attorneys have a questionnaire they use for post-judgment exams to insure they cover every financial aspect of the debtor’s life.

If you are interested in learning more about post-judgment debtor examinations, contact the attorneys at Windtberg & Zdancewicz to schedule an appointment.

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.

 

Country singer Garth Brooks has been sued by his former business partner, Lisa Sanderson, who claims she was persuaded to work on his behalf with the promise of great rewards. More specifically, the complaint alleges Brooks breached an oral contract and fraud. Sanderson seeks damages in the amount of $425,000 for unpaid salary, bonuses and punitive damages. Sanderson says she worked with Brooks for 20 years bringing him television and movie work.

Sanderson alleges that she was “lured” away from a “successful and highly fulfilling career in television” because Brooks allegedly promised her 50 percent of producer fees paid to his production company called Red Strokes. Sanderson worked with Merv Griffin and has several TV movie executive producer credits. Sanderson claims Brooks had ridiculous excuses for not doing the TV and movie projects she brought to him.

Does Sanderson have a legitimate case? Only time will tell. Oral contracts can be enforceable as long as they meet certain requirements and don’t violate the statute of frauds.  The statute of frauds is a legal doctrine that requires certain agreements be in writing. In Sanderson’s suit against Brooks, she must prove that a contract existed and that Brooks defaulted on the agreement.

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.

When you are trying to recover commercial accounts, there are certain things you must consider. The most important is how to get paid. You want to make sure that the attorney you select to help you performs steadily before you increase the amount of business you give them. This means it is important to keep track of how your lawyer is performing for you.

Another important consideration in recovering debt is to protect your good name and reputation. If you collect the money owed but you are later accused of using unethical collections tactics, your recovery doesn’t matter. Again, using a reputable attorney shields your business from any negative press or damage to your business name and goodwill.

At Windtberg & Zdancewicz, we have extensive experience in recovering commercial accounts. We are aggressive and proactive in our efforts, so you see the results in your bottom line. We are ethical in our approach and take every measure necessary to represent your business in a professional manner. Contact us today to discuss how we can help your company.

At Windtberg & Zdancewicz, PLC, our attorneys are dedicated to using the law to provide business solutions. We handle many types of business disputes in Arizona, on behalf of both creditors and debtors. Frequently, these cases involve a failure to make payments. We handle cases from pre-litigation collection through litigation, obtaining and enforcing judgments to collect what our clients are owed.  If you are interested in learning more, please contact us at 480.584.5660.

Receiverships are a common part of real property foreclosures. A secured lender may want the collateral to be placed in the care of an independent third-party. Most trust deeds and mortgages have provisions regarding receivers and Arizona law allows a lender to seek a receivership remedy without including counts for judicial relief. This means a receiver can be appointed while a party seeks non-judicial relief (like a trustee or UCC sale).

What can receivers accomplish? A receiver can help divide or distribute assets. If allegations of fraud or breaches of fiduciary duties are involved, a receivership can help the victim preserve assets while the investigations are going on. Finally, a receivership allows a borrower time to raise capital or sell assets while the lender is protected with the process being supervised by a fiduciary.

Receiverships are not bound by the timelines or deadlines imposed in a bankruptcy case. A case may remain pending while the parties search for solutions through the receivership. If the receivership fails, bankruptcy is always an option.

If you are interested in learning more about Arizona receiverships, contact Windtberg & Zdancewicz to schedule an initial consultation.

The attorneys at Windtberg & Zdancewicz, PLC, provide Arizona residents and businesses with experienced legal representation in all collection matters.  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 with your collection matters, please contact us at (480) 584-5660.

 

In most cases, the longer an account sits past due, the more difficult it is to collect. Thus, it is important for businesses to closely monitor their aging accounts.

How does time affect collectability? As time passes, it becomes more difficult to locate a debtor. The client or customer may move, change names, obtain a new telephone number or get a new job. In fact, they may do any of these things several times over the course of a year or two. With every change, the more difficult it is for you to recover the amount owed to you.

It is important to also remember the applicable statute of limitation for recovering debt. The statute of limitations on an account is the number of years you have to pursue an account from the last date of charge or payment (whichever is most recent). The statute of limitations on debt in Arizona puts a time limit on the amount of time you can be sued for a debt as follows:

• Oral contract = 3 years
• Written contract = 6 years
• Open ended accounts = 3 year

The faster you can move forward on an outstanding account, the more likely you are to receive the payment due to you. For help in recovering debt owed to you, contact Windtberg & Zdancewicz, PLC, to schedule an initial consultation.

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.

Execution of a judgment is a process where the sheriff or constable seizes property of a judgment-debtor and then sells that property at a public sale.  The money realized from the sale is then used to reduce the balance of the civil judgment.  Before the sheriff can take any action,  a writ of execution must be issued by an Arizona court.  A creditor can only get a writ of execution if you have a valid civil judgment.

There are two types of writs of execution:

·         General writ instructs the sheriff to seize any non-exempt personal property of the debtor for sale. If execution on the judgment-debtor’s personal property does not satisfy the judgment, the sheriff can levy and execute on the the judgment-debtor’s real property.

·         Special writ names or identifies specific items of personal property owned by the debtor for seizure and sale by the sheriff. The sheriff cannot go outside the terms of the special writ to satisfy the judgment.

If you are interested in learning more about writs of execution in Arizona, contact Windtberg & Zdancewicz, PLC. An experienced creditor’s rights attorney can help you determine whether a general or special writ of execution would be more beneficial in your individual circumstances.

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.

Before you put a lawyer on retainer or hire a law firm to handle recovering your past due accounts, consider these pointers:

·         Take immediate steps to resolve the dispute with your customer or client.

·         Determine the amount that a past due account must be before it is cost-effective to send it to an attorney for help. For example, if an account is below $500, it may make more sense to handle it in-house or write it off.

·         You typically can obtain a reduced rate on your legal fees if you send numerous accounts for recovery at one time. Your attorney can try to schedule a court date for all your legal matters at the same time, which save you time and money.

If you are interested in taking legal action to recover your delinquent accounts, contact 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.

Foreclosure is the legal process by which a mortgage-holder can obtain legal ownership of the real property pledged as collateral under the loan. The foreclosure process in Arizona can occur quickly for a mortgage company or other lender. A foreclosure can begin as soon as the homeowner misses a payment, but most lenders attempt to work out alternatives before pursuing a foreclosure.

If an alternative cannot be worked out between the lender and the homeowner, the lender may begin foreclosure proceedings.  Most Arizona homeowners have a trust deed, so the timeline for the foreclosure is quick because it does not have to go to court.

The lender must appoint its trustee, the person or entity that has the legal right to sell the home in a trustee sale, to handle the appropriate paperwork. The attorneys at Windtberg & Zdancewicz, PLC, can serve as your trustee. The trustee must record a “Notice of Trustee’s Sale” in the county recorder’s office. The home may not be sold until after 90 days from the recording date of the notice. This notice must also be published a minimum of once a week for four consecutive weeks in a “newspaper of general circulation” in the applicable county.  The trustee will mail a notice within five days of the recorded notice of trustee sale to the home owner and other parties affected by the foreclosure.

Assuming that the home owner has not reinstated the loan, the trustee will conduct the sale at a previously disclosed location.  Every bidder is required to provide a $1,000 deposit to bid on the home.  At such time, the home is sold to the highest bidder, which may include the mortgage company.  If the bidder successfully wins, he or she has until 5:00 p.m. of the following day (assuming that it is not Saturday or a legal holiday) to pay the remaining balance in cash or other acceptable forms of payment as determined by the trustee.

If the highest bidder fails to pay his bid amount, his deposit is forfeited and he is liable to any person who suffers loss or expenses as a result, including attorney fees. If the highest bidder forfeits his bid, the second highest bidder is given until 5:00 p.m. of the next day.

Proceeds from the sale are used to pay off the trust deed lien against the home.  If any proceeds remain, payment is made to junior lien holders in order of priority.  In the event that any remaining balance is left over from the sale, the trustee will remit the balance to the ex-home owner.

If you would like to learn more about the Arizona foreclosure process or you need assistance conducting a foreclosure, contact Windtberg & Zdancewicz, PLCtoday.

The attorneys at, 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.