The Fastest Way to Secure and Collect a Debt

January 9, 2012

Photo by Tracy O

Generally, our legal system goes at its own moderate pace.  If you are owed money, collecting it can seem painfully, unbelievably slow.   When  a collection lawsuit is filed and served, it usually takes at least a year to get to trial, then additional time to finalize the judgment and to lien on the debtor’s property.  Throughout this long and often expensive process, there is always the risk of the debtor transferring away assets, pulling whatever equity he may have out of his property, leaving the state, or filing bankruptcy.

However, under the right circumstances, California law does allow some relief that can usually be acquired within about a month. This procedure, called a Pre-Judgment Attachment, is generally available (subject to some rare exceptions and nuances) where all of the following are true:

  1. the money is owed under a written or oral or even an implied “contract”(e.g. most often loans or business leases, or elsewhere as well);
  2. the debt is for a specific dollar amount (one that can be arithmetically calculated from the terms of the agreement) which is more than $500;
  3. the debt is not already secured by real property having sufficient equity to cover the debt;
  4. where the debtor is a “natural person”(as opposed to a corporation or an LLC), the debt must arise from that person’s business, trade or profession, rather than from personal, family or household expenses.

If these criteria are met, and there is a collection action filed, or about to be filed, an ancilliary motion is also then filed requesting an immediate Pre-Judgment Attachment on the debtor’s property, which, once granted, can be recorded against real or personal property of the debtor.  The amount of the Attachment is set by the amount of money owed plus estimated costs and attorneys fees, if fees are allowed, minus any payments made.

This procedure is not available in small claims court, but it is available even where the contract provides for binding arbitration.

Once recorded or, in some cases, filed, the amount owed is secured as a lien on that property, and that Attachment has priority over all subsequently filed or recorded liens, making it difficult for the debtor to refinance his property or to transfer it away.  As a practical matter, this Attachment puts the debtor on notice that he is going to have to eventually pay this debt, and often puts so much financial pressure on him that the case settles.

The debtors property subject to Attachment can include: real property, business receivables, equipment, farm products and inventory, money judgments in favor of the debtor, if arising out of the debtor’s trade, business or profession, cash on hand in the debtor’s business, trade or profession, money in accounts over the first $1000, negotiable stock or securities, most community property, even oil, gas or minerals to be extracted.

If the debtor is an individual (as opposed to a corporation, partnership or LLC), some property is exempt from a Pre-Judgment Attachment, most often specific assets in limited amounts exempt under California or federal law, wages, and income or assets necessary for the debtor family’s living expenses.  Under most circumstances, even if the debtor later files bankruptcy, this Attachment secures the debt on the property.

In summary, a Pre-Judgment Attachment provides some relief from the long delays that often occur in collection actions by promptly placing a lien on the debtor’s assets, securing those assets until judgment can be entered.  More often, placement of the Attachment forces the debtor to settle promptly.

Written by Basil Plastiras, Partner at Plastiras & Terrizzi


Plastiras & Terrizzi Announces Addition of Two New Associates

September 14, 2009

SAN RAFAEL, CA – Plastiras & Terrizzi, a San Rafael-based general civil law firm, has announced the expansion of its existing operations with the addition of two new attorneys with deep ties in the San Francisco Bay Area, Thane Schultz and John Corcoran.

“We’re thrilled with the addition of both Thane and John,” said managing partner Basil Plastiras.  “They are a great addition to the firm, and will allow us to expand into new practice areas, including family law and estate planning.”

A long-time resident of Marin County, Schultz has been practicing law since 2003, with a focus primarily on family law and general civil litigation. He also has experience working in construction defect, insurance defense, contract and real estate litigation, and medical malpractice.  Schultz also has extensive experience in business, having spent two years helping to run his family’s real estate development business in Australia.  Schultz is a graduate of the Santa Clara University School of Law and the University of San Francisco.

Corcoran joins Plastiras & Terrizzi after working for a law firm in Silicon Valley, where he focused on general civil litigation, small business representation, estate planning, employment law, and real estate law.  He previously worked as a public affairs consultant, working with various clients including as a consultant to the County of Marin on the successful effort to establish the Marin Energy Authority.

Earlier in his career, Corcoran served in the White House during the Clinton Administration as a Writer in the Office of Presidential Letters and Messages and as a Speechwriter and Press Aide in the Office of the Governor in Sacramento.  Corcoran is a graduate of the University of San Francisco School of Law and UC Santa Barbara, and he currently serves as a Planning Commissioner for the Town of Tiburon.

California Supreme Court Requires Attorneys Without Malpractice Insurance to Directly Notify Clients

September 13, 2009

Attorneys in California who do not have malpractice insurance are used to walking on a tightrope, but the California Supreme Court has just made things harder for them to continue their ways.  In August 2009, the California Supreme Court changed the disclosure requirements for attorneys who do not carry malpractice insurance. Attorneys without such insurance to directly notify their clients about their lack of coverage. Attorneys who do not have malpractice insurance coverage after the rule goes into effect must disclose the lack of insurance in writing to all of their existing clients. Attorneys who decide to drop coverage they previously held will be required to advise clients in writing within 30 days of the end of their insurance coverage.
The new rule will take effect on January 1, 2010.

Growth of “Master-planned communities” Create Problems for Homeowner Associations

September 11, 2009

Homeowner Associations have experienced tremendous growth in recent years both nationwide and here in California.  All of that growth is creating problems for local communities, reports The Signal.  Although many master-planned communities have designed local services into their communities, habits and consumerism have driven more Californians to drive rather than to walk or bike when they need to travel from place to place.  Homeowner Associations are having to adopt to their own residents’ habits after communities have already been developed and built out, creating unique legal issues.

Judges Growing More Frustrated With Small Number of Loan Modifications

September 11, 2009

The New York Times reported recently that federal bankruptcy court judges are becoming more frustrated with mortgage servicer companies like Wells Fargo for the slow pace of mortgage modifications.

As the Times reported:

“With consumers complaining about the difficulty of getting any response from their mortgage servicers, the effectiveness of the Obama administration’s plan to provide homeowner relief is being threatened. As they wait for an answer on whether they might qualify, homeowners are succumbing to foreclosure and bankruptcy proceedings and winding up in courts — at times in front of judges who are also frustrated.”

Many homeowners are experiencing the same frustration.  Many lenders are either overwhelmed, intentionally dragging their feet, or simply avoiding their own customers, putting up numerous hurdles in the way of a modification.  As a result, thousands of homeowners are being forced into a foreclosure or bankruptcy which could have been avoided.

If you or someone you know is facing foreclosure and having difficulty obtaining a loan modification from your lender, please free to contact us for a free consultation today at (415) 472-8100.

The Plastiras & Terrizzi Blog

September 11, 2009

Welcome to the law firm of Plastiras & Terrizzi.