Category: Creditors’ Rights

Adequate Protection Explained: Adequate protection payments are made to a secured creditor to provide protection for the creditor’s depreciating collateral.  In a Chapter 13 bankruptcy, a debtor is granted an automatic stay upon filing of the bankruptcy, meaning creditors cannot pursue usual modes of collection if payments are not made on time.  While Chapter 13 filers are required to start making payments to the Trustee upon filing their proposed plan, the Trustee cannot distribute payments to creditors until the plan in confirmed.  Since it can take many months for a Chapter 13 plan to be confirmed, secured creditors would then

Debt May Survive Discharge When a Debtor Fails to List a Debt in Bankruptcy: It is required that a debtor list all of his or her creditors and their most current address in the bankruptcy schedules.  If they fail to do so, a judge may not discharge the debt.  Listing all debts is required so that the court can properly notify the creditors by mail.  Creditors have important rights in a bankruptcy, such as filing proofs of claim and objections, and not listing them deprives them of exercising those rights. If a debtor forgets to list a creditor on their

Section 8 Evictions Explained: Many landlords choose to participate in the Section 8 program.  Afterall, it offers the benefit of guaranteed rent subsidy payments.  However, it may not always work out as expected.  The tenant may stop paying their portion of the rent, seriously damage the property, or some other lease violation may arise.  If it becomes necessary to pursue eviction, the landlord must follow not only state and local procedures for eviction, but also U.S. Department of Housing and Urban Development (HUD) regulations. As a landlord participating in the Section 8 program, it’s essential to understand and protect your

Self Help Repossession Notices are Often Targeted: The Louisiana Additional Default Remedies Act provides the “self-help” laws permitting creditors to repossess motor vehicles and motorcycles directly.  This is a form of non-judicial repossession that creditors can do themselves.  It can certainly save a creditor some court and legal fees, but certain steps must be carefully followed, especially if the creditor wishes to later pursue a deficiency judgment. Basic Requirements of Repossession Notices: A number of notices or letters must be sent to the debtor in order to properly effect a “self-help” repossession and to later be able to sue the debtor

How Attorneys Collect Foreign Judgments Across State Lines: Debtors often move across state lines.  A judgment in one state is virtually unenforceable if the debtor does not hold property there or is not working there.  When a debtor or assets are discovered in another state, collection attorneys must take extra steps to enforce a foreign judgment in that state. The United States Constitution requires that states give “full faith and credit” to the laws and court judgments of other states.  Most states have therefore enacted laws that provide the procedure for enforcing an out-of-state judgment.  However, the process varies widely

Fair Debt Collection Practices Act: The Fair Debt Collection Practices Act (FDCPA) regulates the collection practices of third-party debt collectors and law firms engaged in collections.  The FDCPA is found at 15 USC 1692 et seq.  It was designed to protect consumers by eliminating abusive, deceptive, and unfair debt collection practices.  It also protects reputable debt collectors and law firms from unfair competition.  Below is a comprehensive outline of restrictions and requirements that debt collectors must follow to ensure FDCPA compliance. When Does the FDCPA Apply? The FDCPA applies only to the collection of debt incurred by a consumer primarily

Louisiana Default Judgment Laws: It has been a year since Louisiana’s new default judgment laws went into effect on January 1, 2022.  Practitioners and judges alike have now had enough time to adjust to the changes in the law.  As a practitioner who takes default judgments every week, these changes were of particular interest to myself, my staff, and my clients.  One of the first questions I received last January was: “[i]s it going to be harder to get a default judgment?”  My short answer then was that it appeared it would be a give and take; that one step

1983 Relief not Allowed Without Specific Intent: Debtor and her husband entered into a promissory note secured by a mortgage in the purchase of their home. In June 2004, they defaulted on the loan. Two months later, Debtor’s husband passed away. In November 2004, Creditor filed an executory proceeding to perfect the seizure and sale of the property. After filing the suit, Creditor’s Counsel received the original promissory note which was marked with an unsigned stamp indicating the note was paid and cancelled. He also received correspondence from Debtor’s counsel stating that the foreclosure was improperly supported, yet Creditor continued