Stark & Stark Shareholder to Present at 2010 National Association of Retail Collection Attorneys Conference

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Bari J. Gambacorta, Shareholder in Stark & Stark's Collections Group, will present a seminar at the National Association of Retail Collection Attorneys (NARCA) Fall 2010 Collection Conference. The conference will be held October 21-23, 2010 at Caesar's Palace in Las Vegas, Nevada.
 

Mr. Gambacorta, in conjunction with several other attorneys from across the country will present a seminar on Friday October 22, 2010. The seminar will focus on four new areas of practice in order to assist attendees in evaluating and deciding if they wish to incorporate them into their business plans.  The 4 new areas of practice are: leasing, subrogation, local businesses (health clubs, martial arts school, local advertisers, veterinarian clinics, etc.) and government collections. Mr. Gambacorta will present the leasing portion.
 

For additional information on this and other seminars at this year's conference, as well as conference registration information, please visit NARCA's website.

Collecting Prejudgment Interest on Debts

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I am often asked by clients whether prejudgment interest can be obtained from debtors on unpaid claims. Prejudgment interest is usually awarded by the courts in New Jersey only when a written contract exists between the creditor and the debtor which includes a provision for the assessment of interest if payment is not received by the creditor in a timely manner. The written contract can be a simple as a purchase order or an invoice. However, some counties will not award prejudgment interest unless the contract is actually signed by the debtor.
 
Prejudgment interest may run on contract claims not as a matter of right but rather in accordance with equitable principles. Absent, however, unusual circumstances the prejudgment rate should be the same as that provided for by the rule governing post-judgment interest. The current post-judgment rate of interest for 2008 is 5.5%. This rate is adjusted on a yearly basis. Equitable principles do not apply to the same extent where the parties have obligated themselves to a certain interest rate by contract. See Pressler, Current N.J. Court Rules, Comment R. 4:42-11, (Gain).
 
Creditors should seek to protect themselves from debtors who fail to pay their obligations in a timely manner, and additionally should commit their agreements to writing with an appropriate interest provision whenever possible. Creditors should insist that their clients execute such agreements so that misunderstandings are avoided and creditors are protected in the event invoices are not paid in accordance with the agreement between the parties.   

Basic Considerations For Collecting Money In New Jersey

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The number of creditors who simply avoid dealing with past-due obligations is amazing. Sometimes, it is simple inertia -it takes a lot of effort and time to constantly chase after overdue balances. In other cases, the creditor is simply uncomfortable dealing with the unpleasant task of collecting monies due. More often than needs to be the case, a creditor's only hope is exactly that: hope that a debtor will simply pay up, in full, given enough time. As a matter of experience, exactly the opposite is the case: the more time that goes by before a creditor takes action, the less likely it is that the creditor will ever be able to collect all or even part of what's owed.

Creditors should keep two things in mind with respect to collection of past-due obligations:

1.Creditors can, and should, take specific preventative steps in any debtor/creditor relationship, to protect themselves from future collection problems; and

2.Creditors need not resign themselves to carrying or writing off past-due obligations since numerous legal means exist for collecting what is rightfully due.

Preventative Measures

I advise creditors to establish procedures and policies to maximize both their chances of collecting monies on time, and the likelihood of receiving payment if collection problems do arise. The key tools for this are a thorough credit application; and firm, clear payment guidelines.

Credit Application

Basic information:
It is both reasonable and fair for a creditor to ask its clients to complete a credit application prior to extending credit. The credit application should seek banking information, references, all addresses of the client, as well as the EIN (Employment Identification Number) of the company; if the client is an individual, the Social Security number of the client should be obtained, along with the client's banking information and place of employment. Fellow business people usually understand and appreciate thoroughness in business practices, so requesting a credit application, even from clients you have previously done business with, need not be seen as unreasonable. A properly completed credit application should assist the creditor with gaining a good understanding of the client's assets prior to extending credit. If not, the creditor may want to invest some time and funds to confirm that the client has the means to pay the creditor's invoices, or judgment, if one is ultimately obtained. A creditor simply can't get "blood from a stone". Options available to the creditor include hiring an investigator to perform an asset search at various levels of sophistication and cost, verifying the client's address(es), performing a Secretary of State search, driving by or visiting the client's residence or office, calling the tax assessor/collector's office of the municipality in which the client's residence or office is located, reviewing the client's records, e.g. recent correspondence, cashed checks, and surfing the Web.

Provisions of Credit Application:
A credit application should specify in clear language that should the client not pay the creditor in a timely manner, and as a result the creditor is forced to employ an attorney, the client will be responsible for such costs. Not only does such a provision shift the expense of collection to the client, but such a provision can also provide a great deal of leverage in settlement negotiations. Additionally, the credit application should contain language stating that overdue balances will incur interest at the maximum rate permitted by law. Moreover, whenever possible, the creditor should seek the personal guaranty of at least one corporate officer, where the client is a corporation. I find that collection efforts are generally more successful when the creditor cannot only legitimately seek what is owed by the client, but also by one or more of the client's officers; if the company ceases to operate or files for bankruptcy protection, there is another source from which to seek payment. The creditor should verify the information provided by the client on a periodic basis. Information can be easily gleaned from the debtor's letterhead, envelopes and checks.

Payment Guidelines

The creditor's payment guidelines should be firm and clear, and printed on the creditor's shipping documents, contracts and invoices. Typically, payment is due within 30 days from the date goods are provided or services are rendered by the creditor. If payment is not received within that time, the creditor should immediately write to the client reminding them of the provisions of the credit application, and advising that the client's account will be placed with an attorney if payment is not immediately forthcoming. A follow-up telephone call should also be made by the creditor, so that the client is aware that the correspondence is not merely a form letter. If arrangements acceptable to the creditor cannot be made, the account should be immediately placed with an attorney familiar with the collection process. The attorney who specializes in creditors' rights and collections will have a large data base and may very well have had prior experience with the creditor's client. Additionally, given the choice between placing a matter with an attorney or a collection agency, the creditor will find that its fees and costs will typically be lower and the recovery made more quickly by placing the account directly with a collections attorney.

Timing is critical; the likelihood of successful collection efforts deceases as delays in affirmative efforts increase. Companies cease operations, individuals move, and information that the creditor has obtained from the credit application becomes stale.

The creditor should always be mindful of the following red flags: the client complains about the creditor's use of an attorney's fee and/or interest provision in the credit application or the creditor's invoices, the client uses a post office box or mailing service address, the client's calls are always answered by an answering service, the client is never available when called by the creditor, the name/address on the letterhead and checks used by the client do not match the client's name and address (take good notes of the mismatches), the client pays by money order or bank check, bounced check or post-dated check, the client is out of state, does no other business in the state, and/or has no assets in the state. In this respect, the creditor may want to incorporate a choice of law provision into its credit application, contract, order confirmation, or invoices to reduce the likelihood of jurisdictional issues in the event of litigation.

Litigating the Collection Case

Pre-Filing Considerations

Parties:
The Complaint should correctly identify the debtor who is legally responsible to pay the creditor, as well as all potential defendants who may be liable to the creditor. Failure to name a party in the action may very well preclude the assertion of a claim against that party at a later time by virtue of the Entire Controversy Doctrine. See generally Rule 6:30A and comments thereto. Failure to correctly name the debtor, including all trade names utilized by the debtor, may also hamper post-judgment enforcement efforts, requiring the creditor to amend its judgment. The creditor should assert all claims that it may have against the debtor. If the creditor has obtained a personal guaranty, promissory note or other type of agreement entered into by a related third-party, the Complaint should include them as well.

Prejudgment Interest:
The creditor should always seek an award of prejudgment interest in the Complaint, and interest will generally be allowed by the Clerk of the Court in the event of a default by the debtor. The creditor should clearly set forth the basis for the calculation of interest. Prejudgment interest can be awarded either on the basis of the contract between the parties or in the discretion of the Court. If a provision for interest is part of the contract on which the action is based, any rate specified in the agreement will govern, subject to the limitations of the Usury Statute. If no specific interest provision exits in the agreement, the attorney should nevertheless request an award of interest, since such an award is discretionary with the Court. Prejudgment interest will be awarded in accordance with the principals of equity, and will not be awarded at a rate in excess of the legal post-judgment interest rate set forth in Rule 4:42-11, in the absence of a written agreement between the parties.

Attorneys' Fees:
Attorneys' fees should always be demanded in the Complaint and may be awarded by the Court if authorized by a contract between the parties, an applicable Statute or by a Court Rule. Assuming the agreement between the parties makes reference to an award of attorneys' fees, the amount of the award will be subject to the Court's discretion. If the agreement between the parties calls for a specified percentage of the amount of the claim, Courts will generally permit such an award, providing the percentage is considered reasonable. In those cases, Courts generally will not require an Affidavit of Services Rendered with the information required by Rule 4:42-9. Where the agreement provides for an award of attorneys' fees, but does not mention the manner in which that amount is to be calculated, the attorney is required to submit an Affidavit of Services Rendered. The amount of the fee allowed will usually be limited to a fee deemed reasonable by the Court based upon the services rendered and the attorney's experience through the date of the application for judgment.

Choice of Court:
Most matters involving amounts in controversy of less than $15,000 may be brought in either the Law Division or the Special Civil Part, Law Division of the Superior Court of New Jersey. The Special Civil Part has concurrent jurisdiction with the Law Division in all civil actions where the amount in controversy does not exceed the sum of $15,000, exclusive of court costs and statutory attorneys fee. If the amount in controversy exceeds the sum of $15,000, the moving party must bring the action in the Law Division, or waive recovery of the amount awarded over the jurisdictional limit.

If the jurisdictional limit can be met, it is strongly recommended that actions be commenced in the Special Civil Part whenever possible. Some of the benefits of filing in the Special Civil Part include: the filing fees are considerably lower than in the Law Division, the time period for contested cases to reach trial are considerably shorter, and the rules and time periods pertaining to discovery are streamlined. However, I believe that the best reason for bringing an action in the Special Civil Part is because judgment execution procedures tend to be far more effective in the Special Civil Part than in the Law Division. This effectiveness is as a result of the fact that Officers of the Special Civil Part are compensated on a commission basis from the monies which they collect. They receive 10% of the first $5,000 collected and 5% of any amount collected in excess of $5,000. This creates a great incentive, since these commissions are a taxed cost and are paid by the debtor, resulting in Officers of the Special Civil Part being much more aggressive in their handling of the execution process. The Sheriffs' Officers, who are responsible for execution upon Law Division judgments and typically receive only a nominal fee for mileage when executing upon a debtor's assets, do not have the same monetary incentives.

In the Special Civil Part, a statutory attorneys fee is provided as a taxed cost of suit. The amount of the fee is 5% of the first $500 sought and 2% on any excess. This fee is awarded to the attorney, over and above any other fee and is typically taken from the last monies received from the debtor.

The creditor should consider reducing its claim to meet the jurisdictional limit of the Special Civil Part in those matters where the amount in controversy exceeds the jurisdictional limit.

Filing Suit and Obtaining Judgment

Once the action is filed and served upon the debtor, the debtor will either default, file a responsive pleading or settle the claim. In the Special Civil Part, a default is entered automatically by the Clerk of the Court when a responsive pleading is not timely filed by the debtor. In the Law Division, the creditor must make a formal request for the entry of default by the Clerk. In both the Special Civil Part and the Law Division, a request for final judgment by default must be accompanied by a certification of proof of amount due and of non-military service. The creditor should attach to the certification an itemized statement evidencing the obligation of the debtor and that the creditor's damages are liquidated and thus capable of being permitted by the Clerk. The certification should also set forth to the Clerk the date from which interest is calculated. Should the debtor file a responsive pleading to the Complaint, whether in the Special Civil Part, or Law Division, the creditor should immediately serve interrogatories and a notice to produce documents on the debtor, subject to Rule 6:4-3 which limits discovery to those cases where the amount in controversy exceeds the sum of $3,000.00, the limit of the Small Claims Court. Depending upon the defenses raised by the debtor in the responsive pleading, the creditor should soon thereafter file a Motion for Summary Judgment. Too often, the debtor files a responsive pleading to further delay the creditor's collection efforts. Serving the debtor with limited discovery followed by the filing of a Motion for Summary Judgment forces the debtor to act and often results in the settlement of the action, and payment of the obligation. In some counties, the Clerks of the Special Civil Part are scheduling trial dates within weeks of the filing date of the debtor's responsive pleading. However, the creditor should have at least 100 days from the date the debtor's responsive pleading is filed so that the creditor may complete necessary discovery and, if appropriate, file a motion for summary judgment. Rule 6:4-5. The Courts liberally grant adjournment requests if a trial date is scheduled within the 100 day period.

On occasion, the debtor may file a counterclaim against the creditor. A creditor may consider the remedies under Rule 1:4-8 and the Frivolous Action Statute, N.J.S.A. 2A:15-59.1. Early confirmation letters, telephone notes, and unanswered follow-up letters are your best defense to a frivolous counterclaim. The creditor should call the debtor and write early and often regarding non-payment of bills. The creditor should bill the debtor immediately upon delivery of goods or completion of services. When billing, the creditor should ask the debtor to contact the creditor immediately if the debtor has any questions regarding the creditor's goods or services. The creditor should call the debtor when it doesn't receive payment in the time frame when it would ordinarily receive payment. The creditor should use sound business judgment in deciding when not to pursue "close call" claims, in which the creditor believes that the debtor may assert a meritorious counterclaim.

Judgment Liens

A judgment for money damages entered in the Law Division serves as a lien against any real estate owned by the debtor in the State of New Jersey from the time the judgment is properly recorded. N.J.S.A. 2A:16-1. As such, that lien can also attach to property to which the debtor acquires title subsequent to the entry of judgment. Venetsky v. West Essex Building Supply Co., 28 N.J. Super. 178(A.D. 1953). The judgment debtor is unable to convey clear title to the real estate without addressing the judgment lien. The lien lasts for 20 years, and may be renewed for an additional 20 years upon motion to the Court.

A judgment entered in the Special Civil Part does not constitute an automatic statewide lien on real estate. A creditor, however, can arrange for a transcript of the Special Civil Part judgment to be docketed in the Law Division. Once docketed, the judgment is a docketed judgment, and will constitute a lien against real estate. See N.J.S.A. 2A:16-36. After the judgment is docketed, all subsequent proceedings in the case will be governed by the Rules applicable to the Law Division.

Federal District Court

The Federal Courts have jurisdiction to hear collection matters in cases where there is diversity of citizenship and the dollar amount of the claim, exclusive of interest and costs, exceeds the sum of $75,000.00. The creditor should consider litigating matters in the Federal District Court only when sued in State court by an out-of-state debtor, and when they believe that they will receive a more favorable disposition of the matter if it is removed to Federal District Court. The cost and time factors must also be considered, as Federal Courts do not as a rule give any preference to collection matters. Another reason to avoid Federal Courts as a plaintiff is the limited post judgment relief available. The U.S. Marshal's office, which is responsible for execution upon Federal judgments, is generally under-staffed, over-worked, and primarily interested in serving process, apprehending fugitives and not on enforcing post judgment executions.

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