Debtor Creditor Rights
Debtor Creditor Rights
Legal Rights of Debtors
Federal and state laws protect debtors.
Creditors cannot engage in harassment or threatening behavior.
There's a balancing act between the rights of the creditor and the protection of the debtor.
Lawsuit
Filing a lawsuit against the debtor is a common approach.
The plaintiff (creditor) incurs costs like court costs and attorney fees.
The creditor must win the lawsuit to proceed with collection efforts.
Attachment
Attachment: Seizing the debtor's assets.
A writ is requested from the court to create an attachment.
The judge needs to allow to attach property and it need to make sense.
Attachment connects debt with debtor's assets.
Wage Garnishment
Garnishment involves going after the debtor's wages or salary.
It's a form of attachment to a revenue stream.
Traditionally linked to income and employment.
There are percentage limits on what can be garnished.
Garnishment is formalized via a court order.
A garnishment order is served on the employer, who must comply.
Liens
Lien: A statutorily supported right giving the creditor super priority.
Labor lien and material lien are the primary focus.
Liens are extremely powerful and can rank higher than other creditors if statutory processes are followed.
Example: A contractor who provides labor and materials can have a lien that prevails over a first mortgage.
For exam purposes, always prioritize the lienholder.
Mortgage Agreement
Mortgage: Connects debt with real estate.
The debt is secured by the mortgage.
Mortgagor: The party granting the mortgage (debtor).
Mortgagee: The creditor, typically a bank.
Technically, payments are made on the house note, which is secured by the mortgage.
A mortgage is an attachment document, linking debt and assets.
UCC Nine
UCC Nine: A security device that anchors debt with movable property (tangible or intangible).
All 50 states use the UCC Nine.
Focus is on inventory and equipment.
The debt is evidenced by a negotiable instrument and coupled with a UCC Nine security device.
Example: A forklift can be either inventory or equipment, depending on the business.
Security agreements can be broad, covering any and all inventory or equipment owned now or after-acquired, and proceeds from their sale.
Surety and Guarantor
Surety: Primarily liable and can be verbal or written.
Guarantor: Secondarily liable and must be in writing.
Guarantor is a secondary promise, requiring the original debtor to be part of any litigation.
It's more advantageous to be a guarantor than a surety.
Methods of Collection
Reactionary methods: Lawsuits, attachments, garnishments, liens.
Preventive methods: Mortgages, UCC Nine filings, sureties, guarantees.
Liens are generally the most powerful of the reactionary methods.
Aim for preventive measures to secure first position as a creditor.
Traditional Methods vs. Bankruptcy
Objective: Make sure creditors get paid.
Liens can catapult creditors to the first place - Superpower.
Liens are defined by state law.
The IRS can place federal liens on property and bank accounts.
Object in bankruptcy is to be in front of other creditors.
Bankruptcy favors the party with the highest ranking.
Hierarchy in Bankruptcy
Hierarchy matters in bankruptcy distributions.
Liens are prevalent in this world.
Bankruptcy has a well-defined hierarchy.
Secured Transactions
It is mathematical and precise.
A security agreement is a written agreement signed by the debtor that attaches debt to their assets.
The security agreement doesn't need to be hyper-sophisticated to be valid.
Exception: If the creditor possesses the asset (pawn or pledge), the agreement can be verbal.
Debtor normally keeps possession of the asset for commercial means.
Managing Multiple Security Agreements
States have centralized databases to file security interests.
It's the first to file that has priority.
Secured debtor + filing = secured and perfected creditor.
Scenarios
Creditors may close documents and file a financing statement but not fund the loan for a few days, leaving you at risk.
You can leverage accounts receivable through UCC Nine.
Practice exercise
Bank A files a financing statement in all inventory.
Bank B gets a security agreement in all inventory, files a financing statement in all inventory, and makes a loan.
Bank A comes back and makes the loan, and then bank a gets a written security agreement.
What is the status of a and b? Are they secured and perfected, secured and unperfected, unsecured and unperfected, or in it?
Who wins?
A mortgagee would still be an unsecured creditor in coin inventory.
Exam Strategy
List out the creditors in the order they appear sequentially in the timeline.
Put their status relative to the asset in question.
Rank order the creditors.
Identify all creditors on the page no matter what they did, no matter what they lend money into.
Case Study
The creditor that filed first gets paid.
This file will last for five years.
The Filing System
Filing does not attachment make.
The security agreement is an in-depth document.
The financing statement does not a security agreement make -- it's one little page sheet of paper that puts out telephone notice we might have a security interest.
These have to be file at the right date to rank right.
Filing date drives ranking.