Thursday, March 31, 2005

California Debt Collection Tips

The best way to avoid debt collection problems is to address delinquent accounts early, firmly and aggressively. The following tips should help you avoid the most common collection problems.

1. Keep photocopies of checks. Perhaps the single most important tip you can remember to help collect on deliquent accounts is to make photocopies of checks used by customers in payment on any invoice or bill. If you cannot feasibly keep copies of the checks, you should do it for all new customers, and then verify that this information is still accurate when subsequent payments come in.

Bank information (as well as other asset information) is crucial to enforcement of judgments. This small investment of time, to record information which is in your hands for only a short period of time, can pay great dividends later. If you are trying to perform a bank garnishment in California, you need to tell the levying officer (usually the County Sheriff) the exact branch where the account is held in order to complete the levy.

2. Turn over delinquent accounts for outside collection quickly - after the first broken promise or refused or unreturned telephone call. There is a significant drop-off in the collectability of accounts after 90 days past due, and then again after 180 days . While it is true that turning over your accounts comes at the expense of a fee, you should view this step as a necessary one, where you hire experienced professionals to do something for you, in order that you may spend your valuable time and resources on more profitable customers. Not only are successful collections like "found money," they also serve as a message that your business is not an "easy mark," and will hopefully deter future delinquencies, not only from the customer in question, but also from all of your current and prospective customers.

Also, there are practical concerns about being able to successfully document and prove a collection case after significant time has elapsed (i.e., your staff may change, your record- keeping may call for the purging of accounts, the customer could relocate). Most important of all, the statute of limitations may bar a collection action after the passage of too much time from the date of breach of the contract.

3. Always credit customers’ payments to their oldest invoice or bill (unless they specify otherwise in writing).

This goes directly to the statute of limitations issue. Let’s assume that you have a relationship with customer which goes back over ten years, and that this customer was never current in payment, yet made consistent late payments so that the size of the past due balance remained relatively constant, on average, through time. If you credit payments to the newest invoices, you will have a delinquency which is over ten years old, and thus, time-barred by the statute of limitations. If, however, you credit payments to the oldest invoices, you will technically have a zero balance (even after adding finance charges on a monthly basis) as of approximately the date where the total of most recent purchases, when added together from most recent to oldest, equals the total balance due. This will invariably produce a more recent date for the start of the delinquency, which is to your advantage.

4. Get delinquent customers’ promises to pay in writing.

If your customer promises now to pay at some point in the future, this can only be viewed as an attempt to "buy time." While it may be true that your customer does not have the money at this time, use this situation to your advantage, by agreeing to wait a short time (no more than 30 days), but only if the customer puts this promise to pay in writing. Remember, each stage of conducting business consists of exchanging something of value; when a customer becomes delinquent, this temporarily upsets that balance of exchange. In order to avoid being at the mercy of this customer, you should set out to continue the "give and take," rather than pleading for payment. Remember, you can always say "enough is enough" and file suit - you are doing your customer a favor by not doing so, and you should be rewarded with a favor in exchange.

5. Consider sending a survey to customers after you have completed your work, but before payment is due.

First of all, this is good customer service. You may want to include a business reply envelope, and perhaps even offer a gift certificate on the customer’s next purchase in exchange for sending back a contemplated survey. This survey is especially useful for the first-time customers, or existing customers who suddenly purchase a "big ticket" item. Beyond the customer service aspect, you will learn early on if there are any perceived problems from the customer’s point of view, and you may be able to utilize a favorable survey or even lack of a response as evidence of customer satisfaction if a dispute occurs later.

The information provided in this article is general information only and is not intended as legal advice. DO NOT use this information as a substitute for obtaining qualified legal advice or other professional help. Please contact us at (619) 448-2129 or e-mail us for a consultation.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Friday, March 18, 2005

Parents' Rights & Responsibilities

The information for this article comes from a legal guide for parents called Kids and The Law.

Parents have many responsibilities when it comes to their children. But they have important rights as well:

Custody and control: Parents must make important decisions about their children’s lives, such as where the children will live, what school they will attend, when medical care is appropriate and what, if any, religion they will practice. These rights are constitutionally protected and generally cannot be taken away unless it can be shown that the parents are unfit.

Cooperation and obedience: Parents are expected to control their children and are permitted to discipline them (not to the point of abuse or neglect, however). In some instances, children may run away from home, refuse to go to school or be beyond parental control. And, if the situation is extreme, the parents may seek to give up legal responsibility for the child. Or, if the parents fail to adequately control their child, a judge may determine that the child is in need of supervision and declare him or her a ward of the court. When this occurs, the court sometimes takes custody of the child and the responsibility for that child’s basic needs and education.

Children are not required to obey a parental order to do something dangerous or illegal. Parents who allow or encourage children to commit dangerous or illegal acts may be charged with contributing to the delinquency of a minor, (Penal Code § 272), child abuse (Penal Code § 273a) or neglect. (Penal Code § 270)

Earnings: While most parents allow their child to keep his or her earnings, parents do have a legal right to such wages. (FC § 7500) There are exceptions to this rule, however. A child’s earnings may not be available to parents if:
  • The parents have exploited, neglected or abandoned the child, and the child has brought suit to be freed from parental control. (Family Code § 7507)
  • The child’s income is the result of his or her special talent or athletic ability (a child star or athlete). (Family Code §§ 6750, 6753)
  • The child’s income is the result of a gift or inheritance. (Family Code § 7502; Probate Code § 3300)
Recovery for death or injury: If a child is killed or injured, parents are entitled to bring a lawsuit to recover costs such as medical or funeral expenses from the person responsible. (Code of Civil Procedure § 376)

Parental responsibilities: Parents’ most important responsibility is to support their children. They are legally obligated to provide their children with the necessities of life. (Penal Code § 270) Such necessities are not limited to food, clothing and shelter, but also include medical care. In addition, parents are expected to support their children according to their ability and station in life; this means that the children should share in both parents’ standard of living. (Family Code § 4053) This responsibility falls on both parents equally and applies to children’s adoptive parents as well. (Family Code § 9305) The failure to provide adequate food, clothing, shelter or parental care and supervision may lead to criminal prosecution for neglect. (Penal Code § 270)

If a county is required to support a child, it can seek reimbursement from parents who are capable, but have refused, to provide such support. (Welfare & Institutions Code § 11477) Parents also are required to reimburse the county for support costs incurred during the detention of a child under a juvenile court order. (Welfare & Institutions Code § 903) And parents must pay the county back for legal services provided to minors in juvenile court proceedings. (Welfare & Institutions Code § 903.1) The duty to provide support to children lasts until the child reaches the age of majority, usually 18, or 19 if the child is still enrolled in high school full-time. (Family Code § 3901)

The fact that a child’s parents are not married does not affect the parents’ responsibility to support their child. (Family Code § 3900) If parents are unmarried or divorced, and cannot agree upon how much each should contribute toward the support of their children, the courts may be called upon to decide. One parent, or the child through a guardian ad litem, may bring an action against the other parent to enforce the duty to pay child support. (Family Code § 4000) Alternatively, the county may proceed on behalf of a child to enforce the child’s right of support against a parent who fails to provide it. (Family Code § 4002) A judge may order one parent to make specified payments to the other for child support. (Family Code § 4500) The court’s authority to order a parent to pay child support or to enforce such an award includes the following: a writ of execution or levy (Family Code § 5100), a wage garnishment (Family Code § 5230), civil contempt proceedings (Family Code § 290) or criminal prosecution. (Penal Code § 270)

Note: A stepchild (a child from a prior marriage) is generally not entitled to support from a stepparent. (Family Code § 3900) Birth parents remain primarily responsible for child support unless the stepparent adopts the child. (Family Code § 9305) If, however, a stepparent or other person provides necessary support to a child in good faith (when the custodial parent neglects to do so), that person may recover the reasonable value of those necessities from the custodial parent. (Family Code § 3950) However, the natural parents, stepchild or state would not be required to reimburse such costs if the support was provided voluntarily, unless there was a specific agreement to do so. (Family Code § 3951)

Supervision and control of children: Parents may be morally responsible for supervising and controlling their children. However, parents generally are not legally responsible for the acts of their children. (Family Code § 6600) There are exceptions.

For example, parents who encourage their children to break the law may be found guilty of contributing to the delinquency of a minor. (Penal Code § 272) Also, parents who know or should have known that their child engages in improper conduct, or who aid or encourage such conduct, may be held liable for their children’s acts. There are specific statutes that hold parents liable for certain harm caused by their children:

Injuries from guns: Parents may be required to pay victims up to $60,000. (Civil Code § 1714.3)

Willful misconduct: If the child causes injury or death to another, or property damage, the parents are liable for up to $25,000. (This could apply to the parents of a child who commits an Internet-related crime, such as software piracy.) (Civil Code § 1714.1)

Destruction of property: Parents may be liable for sums that their children cannot pay, up to $50,000. (Penal Code § 594(b)(d))

Graffiti: Parents may be liable for the costs of removal, repair and/or replacement of property, and for keeping the property free of graffiti for up to one year. (Penal Code § 594(c); Government Code § 38772(b))

Tear gas injuries: Parents who have signed a minor’s consent form to obtain tear gas may be liable for the child’s negligent or wrongful acts or omissions. (Penal Code § 12403.8(c))

Truancy fines: Parents may be required to pay fines of up to $100. (Education Code § 48264.5(d)(2))

Injuries to another person on school grounds; damage to school property; failure to return borrowed school property: Parents may be liable for up to $10,000, and up to $10,000 for any reward. The school may withhold grades, diplomas or transcripts until these amounts are paid. (Education Code § 48904)

Shoplifting: If a child steals from a store or library, the parents may be responsible for up to $500 plus costs. (Penal Code § 490.5(b))

Curfew violations: Parents must pay the actual administrative and transportation costs incurred by the police for picking up and returning children to their homes on a second violation. (Welfare & Insitutions Code § 625.5(e))

Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Wednesday, March 16, 2005

What Effect Will The Proposed Bankruptcy Reforms Have on Me?

The United States Senate recently approved legislation that, if signed into law, would be the most extensive reform in 25 years. The bankruptcy bill that just passed the Senate and is pending in the House would affect between 30,000 and 210,000 people a year, largely by forcing them to opt for Chapter 13 bankruptcy, where some repayment is required, rather than Chapter 7, which erases debts altogether.

The main features of the proposed legislation which would affect debtors are the following:

  • Your ability to file a Chapter 7 Bankruptcy would be "needs based." There would be a current monthly income requirement that would have to be satisfied before one would qualify for filing. The figure currently being looked at in the committee is $6000 per month. Apparently anyone with a monthly income above that would not be allowed to file Chapter 7 and could only do a Chapter 13.
  • The bill would create a "means test." The court would be allowed to convert a Chapter 7 case to a Chapter 13 based on income and other factors. Under existing law, such a conversion only takes place if the debtor asks for it.
  • The homestead exemption would be capped at $100,000.00 if the home was acquired during the two year period preceding the filing of the bankruptcy.
In essence, bankruptcy filers with incomes above their state’s median income and who have the ability to repay $100 a month over five years — a total of $6,000 — would have to file under Chapter 13. The bill shields retirement benefits up to $1 million, but it also states that child support, alimony, student loans and most tax obligations cannot be wiped out by bankruptcy.

Nearly 1.6 million people filed for bankruptcy in 2003. The new reform legislation will apparently effect only a small number of the people who file for bankruptcy each year, the ultimate consequences of the proposed legislation will remain unknown until the final version is signed into law.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Monday, March 07, 2005

Discharging Tax Debts Through Bankruptcy

Disclaimer: The information contained in this article is provided for general information purposes only and is not intended to be a legal opinion, legal advice or a complete discussion of the issues related to the area of consumer bankruptcy. Every individual's factual situation is different and you should seek independent legal advice from an attorney familiar with the laws of your state regarding specific information.

Discharging Tax Debts Through Bankruptcy

People can get into tax debt for many reasons: divorce, health problems, poor business planning, etc. Whatever the reasons for your tax problems, it may be possible to eliminate some or all of your tax debt with proper planning and filing for bankruptcy.

If the IRS or state tax agency is being uncooperative during a collection negotiation or has begun enforcement proceedings such as a wage garnishment or bank account seizure, the client should consider seeking protection granted by the Bankruptcy Code. The Bankruptcy Code provides that upon the filing of a bankruptcy petition, an Automatic Stay is entered prohibiting the continuation of litigation or efforts to collect any debt without the express approval of the Bankruptcy Court.

Automatic Stay

Filing any type of bankruptcy will preclude the IRS or other tax agency from continuing to levy upon wages or other assets of the taxpayer. The IRS can be ordered to return property seized prior to bankruptcy. Therefore, if the IRS seizes an asset, the taxpayer can still seek help from the Bankruptcy Court to stop a sale and get the property back in a Chapter 13 case.

Types of Bankruptcy

The taxpayer has several types of bankruptcy proceedings to choose from. A Chapter 13 provides for repayment of the individual taxpayer's debt in whole or in part over a 3 to 5 year period. A Chapter 7 Bankruptcy provides for the gathering and liquidation of taxpayer's nonexempt assets and for the discharge of his or her dischargeable debts.

Chapter 13 Repayment Plan

Only individuals may use Chapter 13 of the Bankruptcy Code. Chapter 13 is not limited to wage earners. Instead the debtor may have regular income from any source; welfare, Social Security, unemployment compensation, pension, a business, investments, etc., so long as it is regular and stable enough to allow the debtor to meet obligations under the plan. Chapter 13, however, is limited to small debtors. A debtor's unsecured debt may not exceed $250,000 and secured debts may not exceed $750,000. The filing of a Chapter 13 petition, like the filing of a petition under any other chapter of the code, automatically stays all efforts to collect debts from the individual other than through the bankruptcy proceeding. The stay applies to the efforts of the Internal Revenue Service.

Debtors Retain Assets

Under Chapter 13 a debtor will usually remain in possession and control of the assets. If the debtor has a business, the debtor may operate that business without interference from the trustee or by any creditor. A trustee is appointed to serve as a disbursing agent. Payments pursuant to the plan are made to the trustee who receives a percentage fee (usually 8-10%) for disbursing the funds to the various claiming creditors. Payments must begin within thirty days of the petition. Only the debtor may prepare a Chapter 13 plan. The plan must provide for full payment to all secured creditors to the extent of their secured interest and priority creditors (e.g., most taxes due the Internal Revenue Service). Nonpriority taxes may be partially paid as unsecured debts and will be discharged upon successful completion of the plan. The plan may provide for less that full payment of unsecured, nonpriority debts including many tax penalties. Ordinarily, the plan should provide for repayment within three years. However, the court may, in extraordinary circumstances, approve up to five years for repayment.

There is no requirement for a vote by the creditors to approve the plan. If the court believes that the plan is fair and equitable to all the parties and that the debtor has the ability to meet the payments pursuant to the plan, it will approve it. The only exception to this is that secured creditors may object to the plan. However, if one or more secured creditors object, the court may still approve if it is satisfied that the plan permits the creditor to repay its lien and if the plan offers the nonassenting secured creditor payment with a present value at least equal to the value of the creditor's secured interest.

The approval of the Internal Revenue Service is not required for a plan. Because approval is not required, a Chapter 13 bankruptcy gives an individual taxpayer the ability to force a payment plan upon the Internal Revenue Service over its objection. Instead of having to deal with an unreasonable Revenue Officer, the taxpayer presents his or her other case to a Federal Bankruptcy Judge who has the ability to force the IRS to accept extended payments. All of this makes a Chapter 13 Bankruptcy particularly attractive when the taxpayer has sufficient income to allow repayment of the IRS tax liability within five years. The major disadvantages of Chapter 13 are the adverse effect upon the taxpayer's credit rating and the administration fee taken by the trustee for collecting the plan payments. On the other hand, in most cases, the taxpayer may avoid paying interest to the IRS.

Partial Payment of Liabilities

A Chapter 13 plan may provide for partial payment of dischargeable taxes. For example, if the taxpayer had limited assets and income, the plan might provide for a payment of 10% of dischargeable taxes.

Chapter 7 Bankruptcy

Chapter 7 is also known as a "straight" bankruptcy. Such a proceeding may be commenced by the filing of a voluntary petition by the debtor or by the filing of an involuntary petition by a group of the debtor's creditors. The taxpayer is required to file a schedule of all of his or her assets and liabilities with the court. Within 20 to 40 days after the filing of the bankruptcy petition, the taxpayer will be required to appear before a trustee to be examined regarding his or her assets and liabilities. The trustee will liquidate all of the taxpayer's property which is not exempted by state or federal statutes, as applicable.

Subsequent to the first meeting, the court will enter a discharge of the taxpayer's debt. All debts which are not specifically excluded by statute will be discharged by this order. The Bankruptcy Code provides that the following taxes are not dischargeable:

  • Any tax entitled to priority under Section 507 of the Bankruptcy Code;
  • Any tax for which a required return was not filed or which a late return was filed if that late return was filed within two years of the Chapter 7 petition;
  • Any tax for which the debtor filed a fraudulent return or which the debtor otherwise tried to willfully evade. (Note: such a liability might be dischargeable in Chapter 13.)
Priority Taxes

The Bankruptcy Code gives the following types of federal, state and local taxes priority:

  • Income taxes which are less than three years old, computed from the date the return was due, not the end of the tax year. Any income or gross receipts tax assessed within 240 days before the petition was filed are nondischargeable. The 240 day period is extended if the taxpayer makes an offer of settlement within 240 days after assessment of such tax. The key here is the date the tax was assessed and not the date of the return. In addition, any tax assessable after the date of the petition is not dischargeable;
  • Any withholding tax (Trust Fund Taxes) for which the debtor is liable in any capacity. Thus, whether the debtor is liable for trust fund taxes as an employer or, pursuant to IRC § 6672, as a responsible officer of a corporation, the tax liability is not dischargeable regardless of the age of the debt;
  • Other employment related taxes if within three years of the filing date;
  • Excise taxes which are less than three years old;
  • Certain customs duties; and
  • Any pecuniary loss penalty on any of the foregoing.
Dischargeable Taxes

As a result of Bankruptcy Code Sections 523 and 507 the following taxes are dischargeable:

  • Tax penalties for nonfiling, late payment, late deposit, fraud penalties and late estimated payments if the taxes to which they relate are dischargeable.
  • Income taxes which are: Over three years old; Have been filed at least two years prior to the petition; and/or Have been assessed as an audit deficiency for at least 240 days.
  • Estate and gift taxes which are over three years old.

Adverse Effects of Bankruptcy

Because of the adverse effects upon a taxpayer's credit rating, many people should consider bankruptcy as a last resort. An extensive analysis of the taxpayer's risks, (i.e., the property which he might be required to liquidate and which liabilities would be discharged) should be undertaken prior to the initiation of any bankruptcy proceeding.

Post-Bankruptcy Actions

Once a discharge has been entered by the Bankruptcy Court, submit a written request to Special Procedures Branch that the IRS abate the tax. The Service will abate the liability by preparing a Form 3870. Some have found that the IRS is very inefficient in preparing post-bankruptcy abatements. Some debtors have had levies made on their wages or bank accounts after a bankruptcy. Your attorney must aggressively pursue abatement. If all else fails, the client may request that the Bankruptcy Court hold the IRS in contempt of court.


Although bankruptcy is not a cure-all, it may be a viable alternative to dealing with unreasonable Revenue Officers. In the proper circumstances, bankruptcy can be used to:
Reduce tax liability; and/or

  • Eliminate tax liability; and/or
  • Reduce tax liability; and/or
  • Secure an extended plan for payment of the tax liabilities; and/or
  • Litigate tax controversies.

Prior to the initiation of any of these proceedings, however, the attorney and client should thoroughly research the applicable bankruptcy statutes and, of course, the client should be fully advised of the adverse effects of a bankruptcy on his credit rating. We are a bankruptcy and debt relief agency. We help people file for bankruptcy.

If you have any questions, please call us at (619) 448-2129 or e-mail us to set up an appointment.

About the Author
Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Thursday, March 03, 2005

Wage Garnishment Procedures in California

So you have been to court, won a money judgment and the debtor has not paid. What is next? If the debtor has a job, you can initiate a wage garnishment to have the debtor's employer withhold money from his or her paycheck as payment towards the judgment.

Writ of Execution - To begin a wage garnishment, you must first obtain a document called a Writ of Execution. A Writ of Execution of a form that is available from the clerk of the court where you obtained your judgment. You must fill out the form completely and submit it to the court clerk with a nominal filing fee. The Writ of Execution is a certification of the amount owed and allows you to send the levying officer to the debtor's employer to begin the wage garnishment. In most counties in California, the Sheriff is the levying officer.

Application for Earnings Withholding Order - Wage garnishments are also called Earnings Withholding Orders ("EWO"). After you obtain the Writ of Execution, you must also fill out the EWO application. The EWO application is another form that can be obtained from the court clerk.

After filling out the EWO Application, you file it and the original Writ of Execution with the levying officer for the County where the debtor's employer is located.

An Earnings Withholding Order (wage garnishment) requires an employer to withhold and remit up to 25% of the debtor’s disposable earnings (net income) to the sheriff or levying officer for payment to the creditor. The withholding amount is 50% if the writ is for spousal or child support. The Earnings Withholding Order remains in effect for 10 years or indefinitely (if for support) until the judgment is paid, the debtor ceases to work for that employer, a higher priority Earnings Withholding Order takes effect (such as an Earnings Withholding Order for child support) or the Order is terminated by operation of law (court order or failure to file Opposition to Claim of Exemption.)

If the earnings withholding order is not for spousal or child support, the debtor may file a claim of exemption with the Sheriff in an attempt to terminate the wage garnishment or to reduce the withholding amount. The Sheriff will mail a copy of any claim of exemption and instructions on how to oppose the claim to the creditor. The wages of a spouse not listed as a debtor on the writ of execution may only be garnished pursuant to a court order.

An Earnings Withholding Order should be used to levy on monies earned by the debtor for personal services rendered (whether called wages, salary, commissions, bonuses, or anything else.)

The Earnings Withholding Order includes a warning to the employer stating, "It is illegal not to pay amounts withheld for the Earnings Withholding Order to the levying officer. Your duty is to pay the money to the levying officer who will pay the money in accordance with the laws that apply to this case. If you violate any of these laws, you may be held liable to pay civil damages and you may be subject to criminal prosecution." The Sheriff’s responsibilities are limited to serving the earnings withholding order and receiving and disbursing collected monies. The Sheriff cannot call or otherwise attempt to compel an employer to comply with the wage garnishment. However, Code of Civil Procedure Section 708.210 et seq. allows the creditor to sue the employer for failing to comply with a wage garnishment order.

The information provided in this article is general information only and is not intended as legal advice. DO NOT use this information as a substitute for obtaining qualified legal advice or other professional help. Please contact us at (619) 448-2129 for a consultation.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Tuesday, March 01, 2005

Get the Legal Facts of Life

The State Bar of California offers a number free pamphlets the discuss a wide range of common consumer issues. You can obtain free copies of the pamphets by calling the Consumer Education Pamphlet Hotline: 888-875-LAWS (888-875-5297) or clicking on the links below:

The purpose of this artile is to provide general information on the law in California, which is subject to change. If you have a specific legal problem, you may want to consult a lawyer. Please contact us for a consultation at (619) 448-2129

Carl H. Starrett II, Esq., has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.