Tampa Collections Attorney Archives - Wetherington Hamilton, P.A.

Why You Must Always Comply with Court Orders

June 26, 2017/in Articles, Debt Collection, General/by Ted Hamilton

Currently, my practice focuses primarily in the area of collections, which in Florida, can be broken down into two main steps- they are obtaining Judgment and execution or collecting sums due as a result of the Court having entered Final Judgment.

Once final judgment has been entered, there are various methods available for collection of that judgment. Often, the Final Judgment contains language requiring defendants to complete what is known as a Fact Information Sheet as provided in Florida Rule of Civil Procedure Form 1.977, or defendants may be subpoenaed to appear at deposition in aid of execution.

Parties to a case are all required to comply with court orders; when a party fails to do so, the Court has the authority to find an individual in contempt. The individual is given the opportunity to purge herself/himself of the contempt by complying with the Court Order. The court may order monetary or other sanctions for failure to comply with a Court Order. I regularly hear judges tell defendants that there is no longer debtor’s prison and that they do not send people to jail for not having money to pay their debts, but when people fail to provide a fact information sheet as ordered by the Court or fail to appear at deposition after having been served, they can be found in contempt of court and, after proper notice (personal service), arrested. This is never our goal, but it can happen.

Approximately ten years ago, I brought my then 9 year-old daughter to work on “bring your daughter to work” day. The day began as a normal day (and I had no court appearances scheduled that day), but soon after arriving at work, I was told that I had to go to court because a defendant had been “picked up” for not appearing at a deposition. So I brought my daughter to the court house with me. When we arrived, a woman, our defendant, dressed in an orange jump suit and in hand cuffs, was in the court room. After a hearing in front of the presiding Judge, I took her deposition while my daughter waited patiently nearby; the Judge then ordered the woman’s immediate release. As you might imagine, this made quite an impression on my young daughter.

So what is the bottom line? Parties cannot be arrested for not having money to pay their debts…but parties to a case are all required to comply with Court Orders.

Joan W. Wadler has been a member of the Florida Bar since 1991. Her practice concentrates on Collections and Commercial Litigation, Real Estate Litigation and Associations Law.

Fair Debt Collections Guidance

May 22, 2017/in Articles, Debt Collection/by Ted Hamilton

When the Fair Debt Collection Practice Act (FDCPA), 15 U.S.C 1601, was first enacted, it specifically exempted creditors attempting to collect their own consumer debts. With the enactment of the Consumer Financial Protection Bureau (CFPB), large financial consumer lenders have found that many of the protections afforded consumers by the FDCPA are being applied directly to the lenders, despite the exemption.

The CFPB has supervisory authority of financial institutions with assets over $10 billion and their affiliates and also over mortgage originators, mortgage servicers, payday lenders and private student lenders. Therefore, such large lenders who are involved with consumer loans (made for personal, family household purposes) need to be aware of the need to be in Fair Debt Collections Practice Act compliance.

Some matters to consider to avoid non-compliance include:

Accurately stating the amount of the debt.
Communicate only with the consumer about the debt, with certain exceptions.
Do not communicate at unusual times (usually before 8 a.m. or after 9 p.m. in the consumers time zone).
Cease communication if the consumer advises they are represented by an attorney.
Cease communication at the consumer’s employer if advised to do so.
Do not harass or abuse the consumer.
Do not make false, deceptive or misleading statements.
Do not use unfair practices to collect a debt.
Do not attempt to collect a debt past the statute of limitations.

While this is a partial list, if you feel that the FDCPA or CFPB may apply to your debt collection efforts, you need to be well trained it these legal requirements. The FDCPA spells out in much detail what are prohibited practices, but you might be quite surprised to learn what the courts have found to be an “unfair”, “harassment” or “misleading”. Contact our experienced collections attorneys today to schedule a consultation at (813) 676-9082 or Info@whhlaw.com.

Thomas K. Sciarrino, Jr., Esq.

What is a Fraudulent Transfer?

March 6, 2017/in Articles, Debt Collection/by Ted Hamilton

Several years ago while looking for assets owned by a judgment debtor I discovered that he had recently transferred title to his Corvette to his daughter. It is unusual to find such an obvious example of a fraudulent transfer, but it was not difficult to recover the vehicle and apply it to the amount owed to my client.

Traditionally, a transfer of an asset is considered fraudulent if it is made to an “insider”, such as family member; for less than fair value; when the debtor had been sued or was threatened to be sued.

The law has also established other indicators that a transfer is fraudulent. These are known as “badges of fraud”. Some examples are: the debtor maintained possession or control of the asset; the transfer was concealed; or the transfer was of all of the debtor’s assets. Another example would be that a lien is created on property of the debtor, simply to keep it from being seized.

For corporate debts an officer who is in charge of a business may be held personally responsible if he pays himself before providing for payment to creditors. The officer is considered to hold property of the corporation “in trust” for payment to creditors of the corporation. If he pays himself and the corporation becomes insolvent, a creditor may try and recover against the officer personally. You often see it where it is clear that a business is about to go under and a person in charge of the business starts draining the assets, leaving the creditors out to dry.

Thomas K. Sciarrino Jr., Esq.

Debt Collection and Judgment Collection – Hiring an Experienced Attorney Counts

January 30, 2017/in Articles, Debt Collection/by Ted Hamilton

After having practiced law for over 25 years, you would think I would have seen everything. Yet, every day presents a new type of matter with slightly different facts from the others that have come across my desk. From the debtor who paid his $850 dollar debt with a box of quarters, to the interesting friend who paid the debt of his other friend after having been served at the nudist resort, each case is interesting in its own way. Each matter teaches us something new: A new way to deal with litigation, a new way that an individual or entity can try to hide assets, a new way to collect on a judgment. This experience helps us collect a judgment or collect a debt where other attorneys might find the judgment uncollectable.

Our experience lends itself to Judgment enforcement and debt collection when all seems lost. For example, one of our clients sold his business to someone who failed to pay the remaining amount due on a note for the sale of the business. After lengthy litigation in another state, a judgment entered in the case for over $200,000.00. The attorney in the other state called us to assist in collection of the judgment. The debtor had moved to Florida. (This often happens due to Florida’s unlimited homestead exemption). We immediately filed paperwork to localize the foreign judgment in Florida. (This made the Foreign Judgment a valid Florida Judgment). After taking the deposition of the debtor, we found that the debtor had supported his wife and paid his son extensive amounts over the years prior to entry of the judgment. All of his money had gone into his wife’s account or into a joint account. At this point, we sued the wife and son on a fraudulent transfer theory. After setting the wife and son for deposition and moving for a trial, we settled the case for a substantial amount.

Example after example exists where our experience has proven extremely valuable in judgment collection and judgment enforcement. Our firm handles debt collection, Judgment collection and other commercial litigation on a contingency or hourly basis depending on what works best for the client. If you have a debt that is due to you or a judgment that has gone uncollected, let us know. We can help! Please call Ted Hamilton, Kalei Blair or Thomas Sciarrino in our office or email info@whhlaw.com for more information.

Theodore J. Hamilton, Esq.

The Doctrine of Accord and Satisfaction

May 9, 2016/in Articles, Debt Collection/by Ted Hamilton

Should you or should you not accept a payment for less that the full amount owed when it is indicated to be for full payment? It is always best to not accept a check for less that the full amount owed if there is any chance that it can be interpreted as being accepted as settlement in full. However, if you do, it may not mean that the debt is indeed settled in full by acceptance of the check.

The doctrine of accord and satisfaction is, “the substitution of a new agreement between the parties in satisfaction of a former one.” Such a compromise will effectively relieve a debtor from the remaining obligation only if a separate agreement has been established between the two parties to the effect that the payment of less than the full amount of the original debt satisfies the obligation.

Although the doctrine of accord and satisfaction is a common law doctrine of contract law, it has been statutorily codified in Florida. Two separate statutes govern the application of this doctrine, depending on whether the debt in question is either disputed and unliquidated (an unknown amount) or undisputed and liquidated (a known amount).

One statute deals with accord and satisfaction by use of an instrument (a check) when a debt is either unliquidated or disputed as to the amount or existence of a debt. The statute sets forth that, “the claim is discharged if the person against whom the claim is asserted (the debtor) proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.” F.S.A. § 673.3111(2). In contrast, the other statute deals with accord and satisfaction in the context of liquidated claims or claims that were not disputed by the parties. The statute provides that, “when the amount of any debt or obligation is liquidated (known), the parties may satisfy the debt by written instrument other than by endorsement on a check for less than the full amount due.” F.S.A. § 725.05. The plain language of the statute appears to prevent the satisfaction (full payment) of an undisputed debt by less than the amount due through a notation on an endorsed check stating that, “the check is payment in full.”

The key to determining whether partial payment of a debt acts as a satisfaction of the debt, is whether the tender of partial payment of the debt constitutes a binding contract that effectively supersedes the original debt obligation. The new contract can either be express or implied from the surrounding circumstances. With undisputed claims, a creditor’s act of depositing a check for less than the amount owed will not constitute an implied satisfaction of the original debt, even if, the check had been enclosed in a letter stating that it was tendered in full satisfaction of the debt, else to be returned, or if words of similar import had been written on the check. It has also been held that an endorsed check for less than the amount owed on the debt does not satisfy the obligation regardless of whether the endorsed check includes the condition that the amount, is a full and complete settlement, of the debt.

While there are protections in place for a creditor who accepts a check for less than the full amount without the intention that it is for settlement in full; it is risky as there may be an issue as to whether the debt is actually disputed or liquidated. Whenever you accept payment when it is indicated that it is for settlement or payment in full, you may have precluded your ability to recover the full amount owed. The attorneys at Wetherington Hamilton have experience representing creditors in many different situations. Please contact the author for more information.

Thomas K. Sciarrino, Esq.

Perfecting a Judgment Lien

January 29, 2016/in Articles, Debt Collection/by Ted Hamilton

A judgment obtained by a Florida court becomes a lien on the judgment debtor’s real property when it is properly recorded. The creditor’s primary interests in perfecting the judgment as a lien on a debtor’s property are two-fold: (1) first and foremost, strict technical compliance with applicable rules and statutes; (2) to move as quickly as possible to perfect the lien after obtaining a judgment. Failure to adhere to technical requirements may result in loss of priority as against later judgment creditors or transfers of property by the debtor, unaffected by a creditor’s judgment lien. Prompt action to perfect the judgement lien is necessary to establish priority against other creditors, and to obtain execution before the debtor has sufficient opportunity to transfer or assign his/her assets.

Immediately upon obtaining a final judgment, the creditor must obtain certified copies of the judgment and record a certified copy in any and all counties where the judgment debtor owns real property. Recordation of a certified copy creates a lien on the judgment debtor’s real property in that county. Creditors need to be cautious and make sure a certified copy (obtained from the clerk where the judgment has been entered) has been recorded. Many courts will record a copy of the judgment after entry, but this does not create a judgement lien. A certified copy must be recorded to be in compliance with Florida law.

It also must be noted that there is no lien if the address of the judgment creditor is not included. A judgment does not become a lien on real property unless the address of the person who has a lien as a result of such judgment is contained in the judgment or an affidavit with such address is simultaneously recorded with the judgment, order, or decree.

Thomas K. Sciarrino, Esq.

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Wetherington Hamilton, P.A.

Wetherington Hamilton, P.A.