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A Word of Caution

A Word of Caution. These materials are presented with the understanding that the information provided is not legal advice.  Due to the rapidly changing nature of the law, information contained in this presentation may become outdated.  Anyone using information

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A Word of Caution

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  1. A Word of Caution These materials are presented with the understanding that the information provided is not legal advice.  Due to the rapidly changing nature of the law, information contained in this presentation may become outdated.  Anyone using information contained in this presentation should always research original sources of authority and update this information to ensure accuracy when dealing with a specific matter.  No person should act or rely upon the information contained in this presentation without seeking the advice of an attorney.

  2. Suing The B*st*rds: Guidance and Obstacles Presented By: Charles F. Printz, Jr., Esquire

  3. Topics To Cover • Debt collection • Filing suit • Collecting a judgment • Mechanics Liens • When to use an attorney

  4. 1. Debt Collection DEFINED = Any actions, conduct or practice of soliciting claims for collection or in the collection of claims owed or due or alleged to be owed by a consumer.

  5. Consumer Transaction • A money, property, insurance or service transaction for personal, family or household purposes, with a natural person. • Debt collection resulting from Consumer Transaction is regulated by the CONSUMER CREDIT PROTECTION ACT. • Has NO application to COMMERCIAL or BUSINESS TRANSACTIONS.

  6. Federal Fair Debt Collection Practices Act • Requires WRITTEN 30 DAY VALIDATION NOTICE • Applies only to those who regularly collect or attempt to collect debts owed or due another • Has no application to Business and Agricultural Transactions

  7. Do’S & Don’ts in Debt Collection(Whether Consumer or Commercial)

  8. Bad Debt Collection Practices • Consumer may recover: • Actual damages • Statutory penalty for each violation from $430 and $4,300 (Adjusted for inflation from 9/1/75 to date of Act) • Attorney fees • Has four years from violation to bring suit

  9. 2. Filing Suit • If claim is $5,000 or less – MAGISTRATE COURT • If claim is $5,000 or more – CIRCUIT COURT • Can file without a lawyer; magistrates are trained but are not lawyers

  10. Steps in Magistrate Court Process • FILING A COMPLAINT • Short, plain statement of facts and requested relief • SERVICE OF PROCESS • In person • By Certified Mail • Secretary of State • DEBTOR’S ANSWER

  11. Steps in Magistrate Court Process • MOTION FOR DEFAULT JUDGMENT • DISCOVERY • Limited to production of documents, inspection of property, physical exam • TRIAL & JUDGMENT • Election of Jury Trial • APPEAL/REMOVAL

  12. 3. Collection of Judgments • RECORDING JUDGMENT – County Clerk’s Office • Lien against real estate • SEIZURE OF PERSONAL PROPERTY BY SHERIFF FOR SALE(Writ of Execution) • Requires specific description, location • Bond • Notice to lienholders

  13. 3. Collection of Judgments • ATTACHMENT OF WAGES(Garnishment) • ATTACHMENT OF BANK ACCOUNT, MONEY OWED TO DEBTOR(Suggestion) • Requires notice to debtor, bank, employer

  14. 3. Collection of Judgments • UNCLE SALVATORE FROM FAIRMONT

  15. 4. Mechanics Liens • Filing notice of lien against land • For value of services, materials as improvements • As contractor, materialman, laborer, architect, engineer • 100 Days (Time to Record Notice) • Six Months (Time to File Suit) • Priority of Lien • Sale of Real Estate

  16. 5. When To Use An Attorney • Lawsuits for more than $5,000 • Mechanics Liens • When you seriously question what you are doing

  17. Thank You!

  18. For more information, contact:Charles F. Printz, Jr., EsquireBowles Rice McDavid Graff & Love LLPcprintz@bowlesrice.com(304) 264-4222

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