Reagan McLain & Hatch, LLP
Individuals and businesses in financial difficulties often resort to the federal bankruptcy court for protection. When an individual files a petition with the bankruptcy court, an arm of the federal district court, an automatic stay of all debt collection activities is imposed. This automatic stay acts as an injunction against creditors, preventing even state court actions already in progress from going forward. Collection and collateral recovery proceedings are not canceled but funneled into the bankruptcy court for further proceedings.
If a creditor is secured, the creditor can ask the court to order the debtor to adequately protect the value of the collateral. Collateral should be insured against loss or damage and be properly maintained. The debtor can also be required to make payments to the bankruptcy trustee or the creditor to protect against depreciation while the stay is in effect. If the debtor does not adequately protect the collateral, the creditor can ask the court to lift the stay and allow the creditor to take possession of the collateral.
When individuals and businesses file for bankruptcy, they must disclose all information relevant to their financial condition to the court, and through the court to their creditors. Failure to disclose relevant information may result in serious penalties, including dismissal of the bankruptcy. In extreme cases of actively hiding assets, debtors may be charged with a federal crime and upon conviction, imprisoned. The diligence and persistence of creditors and their attorneys often enables the court to ferret out hidden assets and to uncover fraud and abuse of the bankruptcy process.
After automatic stay and adequate protection issues are resolved, the parties address the issue of the secured amount of the creditor’s claim. An independent appraiser is often hired to assess a fair market value of the collateral which is used to negotiate the final claim with the debtor’s attorney and the bankruptcy judge. Once the claim value has been determined, the creditor’s attorney should act diligently to ensure the creditor receives the value of the claim as soon as possible.
A debtor in bankruptcy may not be entitled to a discharge of certain debts, or, in some cases, a discharge at all. A partial list of debts that may be non-dischargeable includes those incurred by fraud, embezzlement, or theft; defalcation while acting in a fiduciary capacity such as a trustee, partner, guardian, and so forth; domestic support obligations; willful or malicious injury, injury caused by operation of a motor vehicle when intoxicated.
These exceptions are not automatic. The creditor must file a complaint in bankruptcy court within certain time limitations, and has the burden of proof. If a suit is pending in a non-bankruptcy court that involves possible issues as to whether the debt sued upon may be non-dischargeable, there are measures the lawyer can take to expedite the procedure in bankruptcy court.
Reagan McLain & Hatch, LLP’s attorneys aggressively represent creditors in bankruptcy seeking to maximize the creditors’ return over the shortest term possible.
A lender who has made a loan secured by personal property may have a contractual right to repossess the property if the borrower defaults on payments or otherwise breaches the contract. A secured lender is permitted to use self-help repossession, but only if such action does not breach the peace. If the defaulting party resists repossession of the secured property, the secured lender must seek its remedies in court.
The secured lender hires an attorney to file a lawsuit against the defaulting debtor for possession of the collateral. As a threshold matter, the creditor’s attorney will ask the court to safeguard the property pending the outcome of the suit. This involves obtaining a writ of sequestration directing a sheriff or constable to seize the collateral and hold it subject to a bond until the matter is resolved. This process is involved and if not done right, can leave a creditor liable for damages.
Collateral recovery can be complex if a third party is involved. If one creditor is seeking to recover from a debtor, there are usually others. Furthermore, garages, repair shops, mechanics, and other parties in possession of secured property may seek to lay claim to the property.
Reagan McLain & Hatch, LLP represents secured creditors and it has filed hundreds of lawsuits seeking the sequestration and return of secured property from defaulting debtors.
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Even with a will, there can be complications. The will might be poorly written, ambiguous, or incomplete. It might not cover all your property. Unforeseen changes or contingencies can cause real problems. And family members might be dissatisfied and contest your will its often said that you never really know someone until you share an inheritance with them.