Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the...

49
Late Payment Collection Alternatives: Repayment Agreements and Beyond Presented By: This manual was created for online viewing. State specific information in this manual is used for illustration and is an example only. MAIL: P.O. Box 509 Eau Claire, WI 54702-0509 • TELEPHONE: 866-352-9539 • FAX: 715-833-3953 EMAIL: [email protected] • WEBSITE: www.lorman.com • SEMINAR ID: 401054 Scott E. Blakeley and Neal Ganta, Esq. Blakeley LLP

Transcript of Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the...

Page 1: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Late Payment Collection

Alternatives:Repayment Agreements and

BeyondPresented By:

This manual was created for online viewing. State specific information in this manual is used for illustration and is an example only.

mail: P.O. Box 509 Eau Claire, WI 54702-0509 • telephone: 866-352-9539 • fax: 715-833-3953email: [email protected] • website: www.lorman.com • seminar id: 401054

Scott E. Blakeley and Neal Ganta, Esq.Blakeley LLP

Page 2: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through
Page 3: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Take advantage of this special offer for $50 off of a Lorman

live webinar!

C O N V E N I E N T:Lorman offers a wide variety of live webinars covering current issues affecting numerous industries. Learn the latest on legal compliance, cost savings and strategies, and business trends.

E X P E R I E N C E D :Learn about today’s hot topics presented by our expert speakers who represent prominent firms and have years of industry experience and knowledge.

C U R R E N T :In today’s business world, staying current of the ever-changing regulations is absolutely necessary in order to advance in your field. Earn continuing education credits, educate your entire team and ask questions of the speakers. For a complete listing of upcoming live webinars visit www.lorman.com.

SPECIAL OFFER

$50 OFFYOUR NEXT Discount Code Y1719669This offer can not be used in combination with other discounts.

LIVE WEBINAR

Page 4: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through
Page 5: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Late Payment Collection

Alternatives:Repayment Agreements and

Beyond

©2017 Lorman Education Services. All Rights Reserved.

All Rights Reserved. Lorman programs are copyrighted and may not be recorded or transcribed in whole or part without its express prior written permission. Your attendance at a Lorman seminar constitutes your agreement not to record or transcribe all or any part of it.

Full terms and conditions available at www.lorman.com/terms.php.

This publication is designed to provide general information on the topic presented. It is sold with the understanding that the publisher is not engaged in rendering any legal or professional services. The opinions or viewpoints expressed by faculty members do not necessarily reflect those of Lorman Education Services. These materials were

prepared by the faculty who are solely responsible for the correctness and appropriateness of the content. Although this manual is prepared by professionals, the content and information provided should not be used as a substitute for professional services, and such content and information does not constitute legal or other professional

advice. If legal or other professional advice is required, the services of a professional should be sought. Lorman Education Services is in no way responsible or liable for any advice or information provided by the faculty.

This disclosure may be required by the Circular 230 regulations of the U.S. Treasury and the Internal Revenue Service. We inform you that any federal tax advice contained in this written communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding federal tax penalties imposed by

the federal government or (ii) promoting, marketing or recommending to another party any tax related matters addressed herein.

mail: P.O. Box 509 Eau Claire, WI 54702-0509 • telephone: 866-352-9539 • fax: 715-833-3953email: [email protected] • website: www.lorman.com • seminar id: 401054

Prepared By:Scott E. Blakeley and Neal Ganta, Esq.

Blakeley LLP

Page 6: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through
Page 7: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Learn What You Want, When You Want From Our Entire

Course Library

UNLIMITED ACCESS

ON-THE-GO LEARNING

We Offer Accredited Training Including CLE, CPE, HRCI, ENG and Many More

A L L - A C C E S S P A S SLORMAN EDUCATION SERVICES

Learn at Your Own Pace From Your Computer,

Tablet or Mobile Device

lorman.com/pass

GET CERTIFIED

Want to learn more? Contact a Lorman

All-Access Pass Specialist:

[email protected] or call 1-877-296-2169

Page 8: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through
Page 9: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

LATE PAYMENT COLLECTION ALTERNATIVES: REPAYMENT AGREEMENTS AND BEYOND

Scott Blakeley, [email protected]

18500 Von Karman Ave, 5th Floor

Irvine, CA 92612

V. (949) 260-0611 | F. (949) 260-0613

www.BlakeleyLLP.comOrange County | Los Angeles | New York

Neal Ganta, [email protected]

18500 Von Karman Ave, 5th Floor

Irvine, CA 92612

V. (949) 260-0611 | F. (949) 260-0613

www.BlakeleyLLP.comOrange County | Los Angeles | New York

1

Page 10: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

2

Page 11: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

The Delinquent Account

What is a Delinquent Account? Why past due: cash flow vs. disputed items

Contract controls From the vendor’s view

From the debtor’s view

Avoiding a delinquent account through effective credit management Pay close attention to the creation of new accounts

Maintain continuous communication

Respond quickly to disputes, problems, and delinquencies

2

The Type of Customer

Ways to determine type of customer

Request for financial information and confidentiality agreement

Third party comment

3

The Trustworthy

Vs.

Untrustworthy customer

Ability to pay Willingness to pay

3

Page 12: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Distressed Debtor What is a distressed debtor? What qualifies a customer as high credit risk?

Should you divorce your customer

Costs of high-maintenance customer

Rising revenues from dropping problem customers

Options to dropping customer

Warning signs of distressed debtor Collections

Judgments

Liens

Bankruptcy

Likelihood of small business to become severely delinquent

Monitoring accounts

4

Distressed Debtor

Credit enhancement checklist Closing the sale while minimizing credit risk

Revisiting your portfolio and credit policies Adjusting your policy to signs of distressed debtor

How was the customer’s business prior to economic downturn?

Is your credit policy too restrictive or too liberal?

Credit scoring and customer information CP’s criteria to evaluating customers’ credit scoring

Credit enhancements

Combining various sources for information:

5

4

Page 13: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Distressed Debtor

Traditional Approach vs. Modern Approach Traditional Credit Approach to the Distressed Debtor

Modern Credit Approach to the Distressed Debtor

Dealing with New Orders When the Customer is Past Due under the Traditional Approach

Dealing with New Orders When Invoices are Past Due under the Modern Credit Approach: Preserving the Strained Relationship

Dealing with Past Due Invoices Under the Traditional Credit Approach: Pay or Else

Dealing with Past Due Invoices Under the Modern Credit Approach: Preserve?

6

Analyze Chances of Successful Collection

Collectability Internet as a search tool

Banking information

Availability and sufficiency of security

Asset and UCC search, including real estate search

Bank account search

Review of debtor’s current status

Effect of other creditors’ action

Analyze possible defenses to creditor’s claim (credits, guaranty, antitrust, tort claims, harassment, threats of criminal prosecution)

Likelihood and Effect of Bankruptcy Automatic stay

Preferences

7

5

Page 14: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Identifying Potential Sources of Collection

Corporations Promoters

Shareholders – individual or corporate (alter ego)

Successor corporations

Partnerships

Related Parties

8

Document Retention

E-Credit department

Document preservation: requires preservation of any document that may be relevant to any current or future litigation Once vendor anticipates litigation with the customer, the vendor

must place a hold on its document destruction policy, including electronic information such as e-mails

Vendor faces risk of sanctions for failing to place litigation hold

Document retention policy

9

6

Page 15: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Review Workout Possibility

Hardship letter and request for financial information

Final demand by creditor with attorney

Workout to improve creditor’s legal position Secured

Unsecured

Secured and unsecured debt

Settlement agreement

Collect for the debtor

Find financing for the debtor

10

Alternative Payment: Credit Cards

Who bears the transaction fee?

11

7

Page 16: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Arbitration and Mediation

What is Arbitration?

Agreement to Arbitrate

Mediation Arbitration and mediation are similar in that they attempt to

resolve disputes with customers without the vendor filing a lawsuit

Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through negotiation

If one party is not happy with the negotiations, they can terminate the mediation and pursue their claim in court

12

Beginning Litigation

Appropriate lawsuit Common counts/breach of contract

Conversion, fraud, fraudulent conveyance

Name all parties, list all trade names, bank accounts business license in trade name

Proper court State

Federal

Jurisdiction

Venue

13

8

Page 17: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Beginning Litigation

Pre-judgment remedies Theory - secure the ultimate judgment today

Preserve collateral

Obtain a lien not voidable after 90 days

Practical uses

Replevin (claim and delivery)

14

Beginning Litigation

Timing Noticed hearing (5-30 days)

Ex parte applications

Collateral in immediate danger of being transferred, concealed, or impaired in value

Temporary restraining order pending noticed hearing issue as an alternative binds only debtor after personal service

May be issued without notice in extreme circumstances

Levy (expense)

15

9

Page 18: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Collection on Judgments Elements – commercial debt states

Contract – written and oral

readily ascertainable amount

Probably validity of claim

Unsecured

Trade or business

Elements – fraud states Fraud

Conversion

Secreted assets

Fleeing debtor

Debtor avoiding service

Non-resident debtor

16

Collection on Judgments

Location/types of assets Deposit accounts

Inventory

Equipment and motor vehicles

Accounts receivable

Real property

Other tangible personal property

Negotiable instruments, documents and money

Securities

17

10

Page 19: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Collection on Judgments

Proof of affidavits or declarations; role of documents

Turnover orders (directed to defendant) Used for property that cannot be located

Can reach property in other states

Avoids expense of levy

Enforced by contempt

Levy Possession

Timing Noticed hearing (5-30 days)

Ex parte application

18

Collection on Judgments

Other provisional remedies Receiver

Injunction

Accounting

19

11

Page 20: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Collecting on Judgments

Judgment liens on real property

Judgment liens on personal property

Enforcement of judgment by writ of execution

Wage Garnishment

Writ of Possession and Writ of Sale

20

Keep Litigation Cost-Effective Discovery

Purpose

Types and timing

Settlement before trial Settlement agreements

Benefits and dangers of accepting a promissory note or notes

Settlement conferences pursuant to court order

Judgments Default judgment

Summary judgment

Trial

Execution on judgment

21

12

Page 21: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

All Out Litigation: When To Do It

Make a statement to your dealer or customer network

Large dollars to collect

Solvent parties

22

Pre-Litigation Checklist for Getting The Most Bank For Your Buck – What To Do Before You Call Your Attorney

Internal Review Assemble the Facts and Documents

Prepare a brief summary of the situation

Call the attorney and send him/her the above materials

Follow-up

23

13

Page 22: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Defenses and Counterclaims

Basic rules

Antitrust/unfair competition

Fraud, misrepresentation

Contract interference

Discovery designed to inhibit the creditor

Documents and keeping tidy files

24

14

Page 23: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

15

http://www.blakeleyllp.com/
Page 24: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

2 16

Page 25: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

3 17

Page 26: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

4

18

Page 27: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

5

19

Page 28: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

6

20

Page 29: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

7

21

Page 30: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

8

22

Page 31: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

9

23

Page 32: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

10

24

Page 33: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

11

25

Page 34: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

12

26

Page 35: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

13

27

Page 36: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

14

28

Page 37: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

15

29

Page 38: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

16

30

Page 39: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

17

31

Page 40: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

18

32

Page 41: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

19

33

Page 42: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

20

34

Page 43: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

21

35

Page 44: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

22

36

Page 45: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

23

37

Page 46: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

38

Page 47: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Notes

Page 48: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through
Page 49: Late Payment Collection Alternatives · Mediation is an informal process where the vendor and the customer select a mediator who attempts to bring the parties to a resolution through

Cross-border family mediation Ulla Zumente-Steele Mediator and Trainer

Cross-border family mediation Ulla Zumente-Steele Mediator and Trainer

Emotions in Mediation: Disputant Perception of the Mediator · When discussing disputant perception of mediator emotions, one issue of particular relevance is the accuracy of that

Emotions in Mediation: Disputant Perception of the Mediator · When discussing disputant perception of mediator emotions, one issue of particular relevance is the accuracy of that

The Professional FAMILY MEDIATOR€¦ · THE PROFESSIONAL FAMILY MEDIATOR FALL 2012 1 FAMILY MEDIATOR FALL 2012 The Professional Rod Wellshas been a steadfast advocate of mediation

The Professional FAMILY MEDIATOR€¦ · THE PROFESSIONAL FAMILY MEDIATOR FALL 2012 1 FAMILY MEDIATOR FALL 2012 The Professional Rod Wellshas been a steadfast advocate of mediation

ADR - law.tamu.edulaw.tamu.edu/.../tamulaw-adr-brochure.pdfKay Elliott is a mediator, arbitrator, and mediation trainer. She teaches mediation and family mediation, and she coaches

ADR - law.tamu.edulaw.tamu.edu/.../tamulaw-adr-brochure.pdfKay Elliott is a mediator, arbitrator, and mediation trainer. She teaches mediation and family mediation, and she coaches

Mediator II Mediation Conference System

Mediator II Mediation Conference System

Mediation Analysis in Experimental Research · approach to mediation analysis and focuses on mediation models likely to be tested in experiments (i.e., the single mediator model,

Mediation Analysis in Experimental Research · approach to mediation analysis and focuses on mediation models likely to be tested in experiments (i.e., the single mediator model,

MEDIATION STRATEGIES FOR THE ADVOCATE JOHN W. KELLY, JR. JOHN W. KELLY, JR. ATTORNEY AND MEDIATOR ATTORNEY AND MEDIATOR ADJUNCT PROFESSOR UNIVERSITY OF.

MEDIATION STRATEGIES FOR THE ADVOCATE JOHN W. KELLY, JR. JOHN W. KELLY, JR. ATTORNEY AND MEDIATOR ATTORNEY AND MEDIATOR ADJUNCT PROFESSOR UNIVERSITY OF.

ADR EXPERIENCE ADMISSIONS EDUCATION BACKGROUND · mediation in the Commercial Division ADR Program. Trained in mediation, AAA. Mediator, AAA. Mediator, USDC, SDNY, 1992-date. Updated

ADR EXPERIENCE ADMISSIONS EDUCATION BACKGROUND · mediation in the Commercial Division ADR Program. Trained in mediation, AAA. Mediator, AAA. Mediator, USDC, SDNY, 1992-date. Updated

Www.marcosmeier.com.br The proposal: 13 th criteria of mediation: Mediation of the construction of the mediator-mediatee’s link. The teacher mediator in.

Www.marcosmeier.com.br The proposal: 13 th criteria of mediation: Mediation of the construction of the mediator-mediatee’s link. The teacher mediator in.

e-Mediation: Evaluating the Impacts of an Electronic Mediator on …jnd260/pub... · 2019. 12. 16. · Keywords: electronic mediation, experimental evaluation, impasse resolution,

e-Mediation: Evaluating the Impacts of an Electronic Mediator on …jnd260/pub... · 2019. 12. 16. · Keywords: electronic mediation, experimental evaluation, impasse resolution,

State-by-State Guide to Court Mediator … Guide to Court Mediator Qualification Standards Northern Virginia Mediation Service 4041 University Drive, Suite 101 Fairfax, VA 22030 ...

State-by-State Guide to Court Mediator … Guide to Court Mediator Qualification Standards Northern Virginia Mediation Service 4041 University Drive, Suite 101 Fairfax, VA 22030 ...

THE MEDIATION PROCESS - Foreclosure Cases GENERAL... · THE MEDIATION PROCESS - Foreclosure Cases FROM THE ORANGE COUNTY BAR ASSOCATION ... Conti, Robert J. Mediator # 25483 CR 1290

THE MEDIATION PROCESS - Foreclosure Cases GENERAL... · THE MEDIATION PROCESS - Foreclosure Cases FROM THE ORANGE COUNTY BAR ASSOCATION ... Conti, Robert J. Mediator # 25483 CR 1290

Introduction to mediation and starting the mediation process...Impartiality •Mediation should be neutral to the outcome of the process •Mediator needs to be independent to the

Introduction to mediation and starting the mediation process...Impartiality •Mediation should be neutral to the outcome of the process •Mediator needs to be independent to the

1 Mediation Skills for Lawyers Margaret Halsmith Principal Mediator, Halsmith Dispute Resolution.

1 Mediation Skills for Lawyers Margaret Halsmith Principal Mediator, Halsmith Dispute Resolution.

GERMANY The OSCE as Mediator Instruments – Challenges ... · CONFERENCE REPORT PEACE MEDIATION GERMANY The OSCE as Mediator Instruments – Challenges – Potentials German OSCE

GERMANY The OSCE as Mediator Instruments – Challenges ... · CONFERENCE REPORT PEACE MEDIATION GERMANY The OSCE as Mediator Instruments – Challenges – Potentials German OSCE

Cross-Border Family Mediation Training (CBFM) · longstanding work as a mediator and a “mediator of mediation” in institutional contexts. Contact: paul@paul-partner.eu Ischtar

Cross-Border Family Mediation Training (CBFM) · longstanding work as a mediator and a “mediator of mediation” in institutional contexts. Contact: [email protected] Ischtar

Introduction Disputes in Corporate Governance Advantages of in-house mediation Skills required for in-house mediator Styles of mediation Result.

Introduction Disputes in Corporate Governance Advantages of in-house mediation Skills required for in-house mediator Styles of mediation Result.

family mediation - American Bar Association · PDF file2 preparing for | Fa Mily ediation WhAT Is mEDIATION? Mediation is a process in which an impartial third party (the mediator)

family mediation - American Bar Association · PDF file2 preparing for | Fa Mily ediation WhAT Is mEDIATION? Mediation is a process in which an impartial third party (the mediator)

Mediation Framework - NHSGGC · 4. Mediation 4.1. What is mediation? 4.2. When to use mediation 4.3. Additional underpinning principles of mediation 4.4. Role of the mediator . 5.

Mediation Framework - NHSGGC · 4. Mediation 4.1. What is mediation? 4.2. When to use mediation 4.3. Additional underpinning principles of mediation 4.4. Role of the mediator . 5.

Foreclosure Mediation - Supreme Court of Ohio · Contract Mediator Questionnaire (if applicable) ... Foreclosure Mediation Program Model Now Available to Ohio Courts Statewide Initiative

Foreclosure Mediation - Supreme Court of Ohio · Contract Mediator Questionnaire (if applicable) ... Foreclosure Mediation Program Model Now Available to Ohio Courts Statewide Initiative