• Collecting On Delinquent Debt, Part 2 – Next Steps

    Insider asked attorney Richard Rothfelder to weigh in on his thoughts on dealing with delinquent debts. Yesterday Richard discussed what to do before you have a collection problem. Today we discuss how to handle a collection problem.

    If, despite all of our efforts, the outdoor advertiser gets stuck with an outstanding and sizable account, the first thing to do is communicate with the debtor. Some sort of demand is recommended, preferably a phone call between the principals of the billboard company and the advertiser. During the call, explain that the business is appreciated, but the contract requires prompt payment, and insistence on receipt of such payment is necessary to avoid exercising the remedies in the contract. Depending on the customer, and the size of his delinquent account, this communication may also include some discussion of payment terms, in order to avoid removal of the ad and exercise of legal remedies. Whatever is discussed or agreed, the outdoor advertiser should immediately document it, at least in an email, but preferably in a letter agreement signed by the debtor.

    If the customer won’t respond, then a formal demand letter should be sent to him by certified mail, return receipt requested. The letter should reference the requirements in the contract for timely payment and legal remedies for breach. Some states require that the letter be sent 30 days or another specified time before filing a collection lawsuit, in order to qualify for recovery of attorneys fees along with the outstanding amount in litigation. Otherwise, afford a short but reasonable time for discharge of the debt.

    If the debtor won’t respond or perform, despite all reasonable efforts to resolve the dispute amicably, the outdoor advertiser should move expeditiously to collect the debt. This can and should include:

    • Removing the billboard from your structure.
    • Sending a certified letter reminding them that as per the contract the ad is being removed, but liability for the rent due to the end of the contractual term remains owing.
    • Consider filing a lawsuit

    A lawsuit can be filed, in which the rent due through the full term of the contract is sought. Most states allow smaller delinquent accounts to be collected in lawsuits filed by the outdoor advertiser without an attorney. More challenging cases should definitely be filed by a collection attorney familiar with outdoor advertising, in which case, the lawsuit should seek recovery of attorney’s fees as well.  A collection lawsuit proceeds like any other litigation, hopefully resulting in a quick and cheap summary judgment in favor of the outdoor advertiser for the debt, attorney’s fees, and court costs.

    Upon securing the judgment, another demand should be made on the debtor to pay, along with negotiations as necessary to work out a payment plan or other terms (this time, with all of the leverage and bargaining power afforded to the outdoor advertiser who now holds an enforceable judgment). If, once again, the judgment debtor won’t respond or perform, the judgment can then be enforced and the debt collected through a variety of post-judgment collection tools. The most common is to file the judgment in the real property records where the debtor or his real property is located, thereby creating a lien and encumbrance on his realty. This “abstract of judgment” often just sits in the real property records, sometimes for years until the debtor needs to sell it, when a call may come from the title company or debtor trying to work out something to pay the debt in exchange for release of the lien. Another effective tool is the filing and enforcement of a writ of possession, which entitles the creditor to attach and sell the personal property of the debtor, and apply the sales proceeds to satisfy the judgment. Even post judgment discovery, such as interrogatories and document production requests, are available to the judgment creditor to locate and pursue the debtor’s real and personal property to satisfy the judgment.

    In conclusion, the best collection tools are:

    • Avoid problems up front by investigating the debtor and incorporating remedies in the contract
    • Communicate with the debtor promptly and regularly at the first sign of trouble.
    • Inevitably, you may end up resorting to the legal system to collect the debt, in which case an experienced attorney is crucial.

     

     


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