Kirby & McGuinn is not a “debt relief agency.” We do not represent debtors whose debts consist primarily of consumer debts.
If the debtor elects to defend a lawsuit by filing an answer, the collection case will generally be set for trial in San Diego County within one year after the lawsuit was commenced. However, the law provides some remedies that may result in collection well before then. One such remedy is pre-judgment attachment. Another is summary judgment.
The remedy of attachment is only granted to creditors who file a motion asking for it. If a debt was incurred for business purposes and a creditor can prove that it will probably prevail on its claim at trial, the court will issue a Right to Attach Order and Writ of Attachment. The Right to Attach Order gives the creditor the right to conduct pre-judgment discovery to find assets which are available to pay the claim. The Writ of Attachment can be levied by the Sheriff to secure those assets until the lawsuit is resolved.
Often, debtors file an answer to contest a lawsuit when there are no defenses to the claim. If the creditor files a motion for summary judgment, the debtor is required to prove to the court that there are real issues of fact that must be resolved in a trial. Often, debtors can’t show this and summary judgment is granted.
The Bankruptcy Code provides that an involuntary petition may be filed against a debtor that is not generally paying its debts as such debts become due. In the case of a debtor with twelve or more creditors, at least three creditors must join in the petition. The alleged debtor may oppose the petition and if successful, is entitled to recover damages, attorney fees and even punitive damages from the petitioning creditors.
Aggressively pursuing remedies under state law, like attaching the debtor’s bank account, may drive the debtor into bankruptcy immediately, or exact special concessions from a debtor who is desperately trying to avoid bankruptcy, without the risk and other disadvantages of an involuntary petition.
In some cases, however, such as when the debtor has abandoned its business premises and fraudulent transfers of assets are suspected, an involuntary petition may be the best course of action.
That depends. Some debtors lose all of their assets to secured creditors like banks or finance companies when they go out of business. Other debtors may keep assets, or distribute their assets to insiders, with the result that creditors are left high and dry. If investigation reveals that assets of the debtor have been transferred for less than reasonably equivalent value, or with the intent to hinder, delay or defraud creditors, these assets (or their value) may be recovered by filing a lawsuit against the transferree.
A judgment creditor may obtain a court order every six months compelling the debtor to appear and be examined under oath as to the nature and location of assets available to pay the judgment. If the judgment debtor fails to appear, the court may issue a warrant for the debtor’s arrest.
Yes. We will accept commercial collection matters not reduced to judgment on a contingent fee only if the claim is at least $30,000 and is, to the Client’s knowledge, not disputed. Our standard contingent fee for the collection of undisputed claims not reduced to judgment is: 15% of the recovery if suit is not filed; and 25% of the recovery after suit is filed. Our standard contingent fee for the collection of claims reduced to judgment is 20% of the recovery on California or federal court judgments; and 25% of the recovery on sister state judgments.