Enforcement of Liens and Judgments in Virginia (OLD EDITION)

Publication Date: 2009 (View 2016 edition.)
Electronic Forms: 67
Available Formats: Print (577 pages, looseleaf, 1 volume, with forms CD)
Product #: 883

Information

PLEASE NOTE: A 2016 edition of this publication is available in print, CD, USB flash drive, and immediate download. Click here for newest edition.

This comprehensive guide combines the law, practical advice, and a variety of forms to give the practitioner all the tools required to deal with creditor/debtor issues in Virginia. It explains how to perfect and enforce liens.

Table of Contents

PLEASE NOTE: A 2016 edition of this publication is available in print, CD, USB flash drive, and immediate download. Click here for newest edition.

TABLE OF CONTENTS (2009 Edition)
Chapters and Authors 
Acknowledgments
About the Editors and Authors
Preface


CHAPTER LIST
1. Deeds Of Trust
2. Enforcement Of Security Interests
3. Mechanics' Liens
4. Attachments
5. Other Statutory Liens, Statutory Exemptions, And Fraudulent And Voluntary Conveyances
6. Judgments
7. Federal, Foreign, And Foreign State Judgments
8. The Federal Insolvency Statute And The Federal Tax Lien
9. Bankruptcy: Its Effect On The Enforcement Of Liens And Judgments
10. Receivership As A Means Of Satisfying Obligations Due A Creditor
11. Fair Debt Collection Practices Act

CHAPTER 1: DEEDS OF TRUST  (back to top)

1.1 INTRODUCTION
1.101 In General
1.102 Limitations Periods
1.103 Foreclosure by a Trustee
1.104 Deed in Lieu of Foreclosure
1.105 Judicial Foreclosure

1.2 THE TRUSTEE
1.201 Eligibility
1.202 Duties
1.203 Substitution of Trustee
1.204 Trustee as Purchaser
1.205 Statute of Limitations

1.3 INITIAL PROCEDURES
1.301 Documentation
1.302 Commissioner of Accounts
1.303 Due Diligence
1.304 Title
1.305 Notice
1.306 Advertising

1.4 THE SALE
1.401 Place
1.402 Terms
1.403 Conduct of the Sale
1.404 Postponement
1.405 Adequacy of the Bid
1.406 Conclusion of the Sale

1.5 SETTLEMENT AND ACCOUNTING
1.501 The Trustee's Deed
1.502 Recordation Tax
1.503 Failure of the Purchaser to Comply with the Bid
1.504 Distribution of the Proceeds
1.505 Release of the Deed of Trust
1.506 Report to the Commissioner of Accounts
1.507 Consumer Protection Act

APPENDIX 1-1: ADDITIONAL FORM FOR CERTIFICATE TO EXTEND ENFORCEABILITY OF THE DEED OF TRUST OR MORTGAGE

APPENDIX 1-2: SUBSTITUTION OF TRUSTEE

APPENDIX 1-3: LETTER TO DEBTOR

APPENDIX 1-4: NOTICE OF ACCELERATION

APPENDIX 1-5: TRUSTEE'S SALE OF REAL ESTATE--NEWSPAPER AD

APPENDIX 1-6: LETTER TO NEWSPAPER

APPENDIX 1-7: ADDITIONAL TERMS OF SALE

APPENDIX 1-8: PURCHASER'S CONTRACT WITH TRUSTEE

APPENDIX 1-9: TWO-PARTY TRUSTEE'S DEED

APPENDIX 1-10: THREE-PARTY TRUSTEE'S DEED

APPENDIX 1-11: ACCOUNT OF FORECLOSURE SALE UNDER DEED OF TRUST

APPENDIX 1-12: NOTICE


CHAPTER 2: ENFORCEMENT OF SECURITY INTERESTS  (back to top)

2.1 IN GENERAL

2.2 THE IMPORTANCE OF THE PARTIES' AGREEMENT IN ESTABLISHING THE RIGHTS AND REMEDIES OF THE SECURED PARTY AND THE DEBTOR
2.201 The Importance of Default
2.202 Rights and Remedies Arising Only from the Parties' Agreement

2.3 POSSESSION
2.301 In General
2.302 Possession Under the U.C.C.--"Self-Help"
2.303 Judicial Action by the Secured Party to Obtain Possession
2.304 Bankruptcy
2.305 Duties of a Secured Party in Possession

2.4 SALE OR OTHER DISPOSITION
2.401 In General
2.402 Sale of Collateral
2.403 Conditions of Sale
2.404 Provisions of U.C.C. Article 2
2.405 Bulk Transfers
2.406 Notice

2.5 PRIVATE SALES
2.501 Commercial Reasonableness
2.502 Notice of Sale to the Debtor
2.503 Purchase by the Secured Party at a Private Sale

2.6 PUBLIC SALES
2.601 Notice
2.602 Waiver of Notice
2.603 Waiver of Public Sale
2.604 Commercial Reasonableness
2.605 Purchase by the Secured Party

2.7 RETENTION OF THE COLLATERAL IN FULL OR PARTIAL SATISFACTION OF OBLIGATIONS
2.701 Proposal to Retain Collateral
2.702 Objection

2.8 SPECIAL RULES FOR THE DISPOSITION OF CONSUMER GOODS
AND INVESTMENT SECURITIES
2.801 Consumer Goods
2.802 Compliance With the Securities Act

2.9 APPLICATION OF PROCEEDS OF SALE OR OTHER DISPOSITION
2.901 Priority
2.902 Surplus

2.10 RIGHTS OF REDEMPTION
2.1001 Debtor or Owner
2.1002 Others

2.11 DEBTOR'S REMEDIES FOR IMPROPER DISPOSITION
2.1101 Failure to Follow Title 8.9A Procedures
2.1102 Action in Which Deficiency or Surplus Is in Issue

2.12 "LENDER LIABILITY" ISSUES

APPENDIX 2-1: "EVENTS OF DEFAULT" PROVISION FOR SECURITY AGREEMENT

APPENDIX 2-2: PROVISION FOR SECURITY AGREEMENT COVERING ACCOUNTS, CHATTEL PAPER, OR INSTRUMENTS

APPENDIX 2-3: PROVISION FOR AGREEMENT REQUIRING THE COLLATERAL TO BE ASSEMBLED AT A GIVEN LOCATION

APPENDIX 2-4: ACKNOWLEDGMENT OF DEFAULT AND WAIVER OF RIGHTS OF REDEMPTION AND NOTIFICATION OF SALE

APPENDIX 2-5: PROVISION FOR AGREEMENT ALLOWING THE SECURED PARTY TO ENTER THE DEBTOR'S PREMISES

APPENDIX 2-6: VERIFIED PETITION FOR ENTRY OF AN ORDER OF SEIZURE IN DETINUE

APPENDIX 2-7: ORDER OF SEIZURE IN DETINUE

APPENDIX 2-8: NOTICE OF SALE OR OTHER DISPOSITION


CHAPTER 3: MECHANICS' LIENS  (back to top)

3.1 IN GENERAL
3.101 Statutory Creation
3.102 Statutory Construction

3.2 WHO MAY CLAIM THE LIEN
3.201 Laborers and Suppliers
3.202 General Contractors and Subcontractors
3.203 Identifying a Mechanics' Lien Claimant

3.3 PROPERTY SUBJECT TO THE LIEN
3.301 In General
3.302 Public Property
3.303 Multiple Contracts, Lots, Units, or Buildings
3.304 Utility and Paving Contractors
3.305 Leased Property
3.306 Condominiums
3.307 Time-Share Property

3.4 PERFECTING THE LIEN
3.401 The 90-Day Rule
3.402 "Completed or Otherwise Terminated"
3.403 Replacement Materials; Open Accounts
3.404 Certification of Mailing

3.5 MECHANICS' LIEN AGENTS
3.501 In General
3.502 Designating the Mechanics' Lien Agent
3.503 Posting the Building Permit
3.504 Sufficiency of the Building Permit
3.505 Notice Requirements
3.506 Evidence of Receipt
3.507 Inaccurate Description of the Property
3.508 Time Period for Notice
3.509 Notice After the 30-Day Period
3.510 Determining Whether a Proper Building Permit Has Been Issued
3.511 Exceptions to the Requirement to Notify the Mechanics' Lien Agent

3.6 OWNER'S AFFIDAVIT OR STATEMENT

3.7 THE 150-DAY RULE

3.8 STATUTORY FORMS FOR THE MEMORANDUM OF LIEN
3.801 The Contractor's Memorandum
3.802 The Subcontractor's Memorandum

3.9 DEFENSES
3.901 Owner's Priority
3.902 Limitation on the Amount Claimed by Subcontractors and Sub-Subcontractors
3.903 Licensure of Claimant

3.10 PERSONAL LIABILITY OF OWNER OR GENERAL CONTRACTOR
3.1001 Remedy Created by Section 43-11 of the Virginia Code
3.1002 Creation of Personal Liability of Owner and General Contractor
3.1003 Priority of the Section 43-11 Claim
3.1004 Owner's Right to Setoff for Work Not Completed by General Contractor
3.1005 Limitations on Owner or General Contractor's Liability

3.11 ENFORCEMENT OF THE LIEN
3.1101 Complaint
3.1102 Intervening Petition by Other Lienholders
3.1103 Parties
3.1104 When the Suit Must Be Brought
3.1105 Automatic Stay in Bankruptcy
3.1106 Scope of Jurisdiction
3.1107 Sale of the Property
3.1108 Challenging the Validity of Lien
3.1109 Court-Ordered Release
3.1110 Diverting Funds

3.12 PRIORITY OF LIENS
3.1201 In General
3.1202 Priority Over Deeds of Trust
3.1203 Priority Over Security Interest in Accounts Receivable
3.1204 Priority Among Mechanics' Liens
3.1205 Removal of Materials Affixed to the Structure
3.1206 Federal Liens

3.13 ALTERNATIVES TO MECHANICS' LIENS
3.1301 Civil Suit
3.1302 Statutory Alternatives
3.1303 Threat of Filing
3.1304 Contract Provisions

3.14 MISCELLANEOUS CONSIDERATIONS
3.1401 Assignment
3.1402 Waiver
3.1403 Forfeiture
3.1404 Release or Discharge

3.15 PRACTICAL EFFECTS OF FILING A LIEN
3.1501 Effect on the Owner
3.1502 Effect on the Claimant's Business
3.1503 Effect on the General Contractor
3.1504 Effect on the Construction Lender
3.1505 Effect on the Title Agency

APPENDIX 3-1: MEMORANDUM FOR MECHANICS' LIEN CLAIMED BY GENERAL CONTRACTOR UNDER SECTION 43-5 OF THE VIRGINIA CODE

APPENDIX 3-2: MEMORANDUM FOR MECHANICS' LIEN CLAIMED BY SUBCONTRACTOR UNDER SECTION 43-8 OF THE VIRGINIA CODE

APPENDIX 3-3: MEMORANDUM FOR MECHANICS' LIEN CLAIMED BY SUB-SUBCONTRACTOR UNDER SECTION 43-10 OF THE VIRGINIA CODE

APPENDIX 3-4: MILLER ACT SUIT TO ASSERT CLAIM AGAINST BOND ON FEDERAL BUILDING OR PROJECT

APPENDIX 3-5: SUIT TO ASSERT CLAIM AGAINST BOND ON STATE BUILDING OR PROJECT

APPENDIX 3-6: DISCLOSURE STATEMENT FOR SITE DEVELOPMENT IMPROVEMENTS

APPENDIX 3-7: NOTICE TO MECHANICS' LIEN AGENT PURSUANT TO SECTION 43-4.01 OF THE VIRGINIA CODE

APPENDIX 3-8: COMPLAINT TO ENFORCE MECHANICS' LIEN

APPENDIX 3-9: ITEMIZED STATEMENT OF ACCOUNTS

APPENDIX 3-10: PETITION TO BOND OFF LIEN UNDER SECTION 43-71 OF THE VIRGINIA CODE

APPENDIX 3-11: BOND TO BOND OFF LIEN UNDER SECTION 43-71 OF THE VIRGINIA CODE

APPENDIX 3-12: DECREE TO BOND OFF LIEN UNDER SECTION 43-71 OF THE VIRGINIA CODE

APPENDIX 3-13: PRACTICAL TIPS FOR ENFORCING THE LIEN


CHAPTER 4: ATTACHMENTS  (back to top)

4.1 IN GENERAL

4.2 STATUTORY BASIS
4.201 To Whom Available
4.202 Grounds
4.203 Attachment of Vessels
4.204 Judicial Interpretations
4.205 Jurisdiction and Venue

4.3 PLEADINGS AND PROCEDURE
4.301 Petition
4.302 Defendants
4.303 Issuance of the Attachment
4.304 Bond and Levy
4.305 Legal Risks

4.4 THE LIEN OF ATTACHMENT
4.401 Commencement
4.402 Property Affected

4.5 DEFENSES TO ATTACHMENTS AND JUDGMENTS
4.501 In General
4.502 Statutory Exemptions
4.503 Parties and Procedure
4.504 Bankruptcy
4.505 Dismissal of the Petition

4.6 JUDGMENT

4.7 PETITION FOR REHEARING

4.8 PENDING ACTIONS

APPENDIX 4-1: ATTACHMENT PETITION (CIRCUIT COURT)

APPENDIX 4-2: APPLICATION FOR AN ADDITIONAL ATTACHMENT

APPENDIX 4-3: PLAINTIFF'S BOND FOR LEVY OR SEIZURE

APPENDIX 4-4: MEMORANDUM OF ATTACHMENT


CHAPTER 5: OTHER STATUTORY LIENS, STATUTORY EXEMPTIONS, AND FRAUDULENT AND VOLUNTARY CONVEYANCES  (back to top)

5.1 THE LANDLORD'S LIEN
5.101 In General
5.102 Nature and Extent of the Lien
5.103 Enforcement of the Lien
5.104 Liens of Landlords and Farmers for Advances

5.2 MISCELLANEOUS LIENS UNDER TITLE 43
5.201 Introduction
5.202 Innkeepers and Boardinghouse Owners
5.203 Keepers of Livery Stables, Hangars, Tie-Downs, Marinas, and Garages
5.204 Towing and Recovery
5.205 Alterations and Repairs
5.206 Competing Liens
5.207 Leased Goods
5.208 Offspring of a Stallion or Jackass
5.209 Offspring of a Bull
5.210 Consigned Farm Products
5.211 Cleaners and Launderers
5.212 Enforcement of Liens for Storage, Alterations, and Repairs and Enforcement of Hotel and Innkeepers' Liens
5.213 Disputing the Validity of the Lien

5.3 WAREHOUSE OWNER'S AND CARRIER'S LIENS
5.301 Creation of the Warehouse Owner's Lien
5.302 Enforcement of the Warehouse Owner's Lien
5.303 Creation of the Carrier's Lien
5.304 Enforcement of the Carrier's Lien
5.305 Liability for Noncompliance
5.306 Other Remedies

5.4 ATTORNEY'S LIEN

5.5 LIEN FOR MEDICAL, NURSING, PHARMACIST, AMBULANCE, AND HOSPITAL SERVICES

5.6 HOMESTEAD AND OTHER EXEMPTIONS
5.601 In General
5.602 Homestead Exemption
5.603 Other Exemptions
5.604 Exemptions for Estates
5.605 Claim of Exemption; Hearing

5.7 FRAUDULENT AND VOLUNTARY CONVEYANCES
5.701 Introduction
5.702 Fraudulent Conveyances
5.703 Voluntary Conveyances
5.704 Property That May Be Recovered
5.705 Validity of the Transaction
5.706 Remedies

APPENDIX 5-1: WARRANT FOR DISTRESS

APPENDIX 5-2: FRAUDULENT CONVEYANCE

APPENDIX 5-3: VOLUNTARY CONVEYANCE

APPENDIX 5-4: MEMORANDUM OF LIS PENDENS


CHAPTER 6: JUDGMENTS  (back to top)

6.1 INTRODUCTION

6.2 ENFORCEMENT OF AN EQUITABLE DECREE

6.3 PERFECTION OF A JUDGMENT LIEN ON REAL ESTATE
6.301 Docketing the Judgment
6.302 When the Judgment Lien Arises
6.303 Jurisdiction
6.304 Duration of the Judgment Lien
6.305 Protection of a Junior Lienor
6.306 Release of the Judgment Lien

6.4 EXECUTION AGAINST TANGIBLE PERSONAL PROPERTY
6.401 Types of Execution
6.402 When Execution Can Issue
6.403 Against Whom Execution Can Issue
6.404 Execution of the Lien
6.405 Property Subject to Levy
6.406 Exemptions from Levy
6.407 Fraudulent Conveyances
6.408 Conflicts
6.409 What Constitutes a Levy
6.410 Sale

6.5 EXECUTION AGAINST INTANGIBLE PERSONAL PROPERTY
6.501 The Execution Lien
6.502 Duration of the Lien
6.503 Property Subject to the Lien
6.504 Practical Considerations

6.6 GARNISHMENT
6.601 Definition
6.602 Institution of Garnishment Proceedings
6.603 Proceedings
6.604 Money Other Than Wages Subject to Garnishment

6.7 INTERROGATORIES TO A DEBTOR
6.701 In General
6.702 Procedure in Circuit Court
6.703 Procedure in District Court
6.704 Discovery of New Assets

6.8 CREDITORS' SUIT TO ENFORCE A JUDGMENT LIEN
6.801 Introduction
6.802 Prerequisites
6.803 Preliminary Considerations
6.804 Which Property to Pursue?
6.805 Proper Parties
6.806 Where to Bring Suit
6.807 Pleading
6.808 Proceedings
6.809 Conclusion

6.9 SUSPENSION OF DRIVING PRIVILEGES
6.901 Introduction
6.902 Prerequisites
6.903 Procedure
6.904 Exceptions
6.905 Suspension of Driving Privileges Because of an Out-of-State Judgment
6.906 Satisfaction Defined
6.907 Installment Payments
6.908 Duration of Suspension
6.909 Registration of Vehicle in Another's Name
6.910 Application to Nonresidents
6.911 Escrow of Funds Pending Judgment

APPENDIX 6-1: WRIT OF FIERI FACIAS (CIRCUIT COURT)

APPENDIX 6-2: LETTER TO CLERK

APPENDIX 6-3: LETTER TO SHERIFF

APPENDIX 6-4: NOTICE OF LIEN

APPENDIX 6-5: LETTER TO ASSET HOLDER

APPENDIX 6-6: (RESERVED)

APPENDIX 6-7: COMPLAINT

APPENDIX 6-8: NOTICE--MOTION FOR APPOINTMENT OF COMMISSIONER IN CHANCERY

APPENDIX 6-9: DECREE OF REFERENCE APPOINTING A COMMISSIONER IN CHANCERY

APPENDIX 6-10: NOTICE THAT COMMISSIONER IN CHANCERY wILL FILE REPORT

APPENDIX 6-11: REPORT OF COMMISSIONER IN CHANCERY

APPENDIX 6-12: DECREE FOLLOWING COMMISSIONER'S REPORT (APPROVING THE REPORT, APPOINTING A SPECIAL COMMISSIONER, AND ORDERING SALE OF THE PROPERTY)

APPENDIX 6-13: ADVERTISEMENT OF SALE

APPENDIX 6-14: NOTICE--MOTION TO CONFIRM SALE

APPENDIX 6-15: DECREE CONFIRMING SALE

APPENDIX 6-16: SUPPLEMENTAL REPORT OF COMMISSIONER IN CHANCERY

APPENDIX 6-17: NOTICE--MOTION TO CONFIRM REPORT OF SPECIAL COMMISSIONER

APPENDIX 6-18: REPORT OF SPECIAL COMMISSIONER

APPENDIX 6-19: SPECIAL WARRANTY DEED

APPENDIX 6-20: SECOND REPORT OF SPECIAL COMMISSIONER

APPENDIX 6-21: DECREE CONFIRMING REPORT AND DISCHARGING SPECIAL COMMISSIONER

APPENDIX 6-22: ABSTRACT OF JUDGMENT (FORM DC-465)

APPENDIX 6-23: DETINUE SEIZURE ORDER (FORM DC-416)

APPENDIX 6-24: WRITS OF POSSESSION AND FIERI FACIAS IN DETINUE (FORM DC-468)

APPENDIX 6-25: WRIT OF FIERI FACIAS (FORM DC-467)

APPENDIX 6-26 GARNISHMENT DISPOSITION (FORM DC-453)


CHAPTER 7: FEDERAL, FOREIGN, AND FOREIGN STATE JUDGMENTS  (back to top)

7.1 INTRODUCTION

7.2 ENFORCEMENT OF JUDGMENTS AGAINST THE REAL PROPERTY OF A JUDGMENT DEBTOR
7.201 Judgments of Federal Courts Located in Virginia
7.202 Judgments of Federal Courts Located Outside Virginia
7.203 Enforcement of a Federal Judgment by a Judicial Sale

7.3 ENFORCEMENT OF FEDERAL JUDGMENTS AGAINST THE PERSONAL PROPERTY OF THE JUDGMENT DEBTOR
7.301 Writ of Execution
7.302 Prejudgment Remedies
7.303 Discovery of Assets

7.4 ENFORCEMENT OF FOREIGN STATE COURT JUDGMENTS
7.401 In General
7.402 Registration
7.403 Action on a Judgment

7.5 ENFORCEMENT OF FOREIGN COUNTRY MONEY JUDGMENTS
7.501 In General
7.502 Definition of "Foreign Country Money Judgment"
7.503 Enforceable Judgments
7.504 Exceptions to Enforcement
7.505 Relevance of Personal Jurisdiction
7.506 Permissive Stay of Proceedings

7.6 EXEMPTIONS FROM EXECUTION AND OTHER LEGAL PROCESSES
7.601 In General
7.602 Exemptions

APPENDIX 7-1: ABSTRACT OF JUDGMENT (FEDERAL COURT)

APPENDIX 7-2: CERTIFICATION OF JUDGMENT

APPENDIX 7-3: POSTJUDGMENT INTERROGATORIES

APPENDIX 7-4: LETTER TO CLERK

APPENDIX 7-5: AFFIDAVIT OF LAST KNOWN ADDRESSES

APPENDIX 7-6: COMPLAINT (FEDERAL COURT)


CHAPTER 8: THE FEDERAL INSOLVENCY STATUTE AND THE FEDERAL TAX LIEN  (back to top)

8.1 INTRODUCTION

8.2 THE FEDERAL INSOLVENCY STATUTE
8.201 In General
8.202 Exception for Federal Tax Liens and Certain Other Federal Liabilities
8.203 Situations to Which the Federal Insolvency Statute Applies
8.204 Act of Bankruptcy

8.3 THE FEDERAL TAX LIEN
8.301 In General
8.302 Assessment
8.303 Notice and Demand
8.304 Failure to Pay
8.305 Duration

8.4 PROPERTY TO WHICH THE FEDERAL TAX LIEN ATTACHES

8.5 FILING OF THE FEDERAL TAX LIEN

8.6 PRIORITY OF THE FEDERAL TAX LIEN

8.7 PARTIES DEFEATING THE UNFILED FEDERAL TAX LIEN
8.701 In General
8.702 Purchasers
8.703 Mechanics' Lienors
8.704 Holders of Security Interests
8.705 Judgment Lien Creditors
8.706 Simultaneous Attachment

8.8 PARTIES DEFEATING THE FILED FEDERAL TAX LIEN
8.801 In General
8.802 Securities
8.803 Motor Vehicles
8.804 Personal Property Purchased at Retail
8.805 Personal Property Purchased in Casual Sale
8.806 Personal Property Subject to Possessory Lien
8.807 Real Property Tax and Special Assessment Liens
8.808 Residential Property Subject to Mechanics' Liens for Repairs and Improvements
8.809 Attorneys' Liens
8.810 Certain Insurance Contracts
8.811 Deposit Secured Loans

8.9 PURCHASE MONEY SECURITY INTERESTS

8.10 STATE TAX LIENS

8.11 FUTURE ADVANCES

8.12 REQUESTING IRS TO REMOVE A FEDERAL TAX LIEN
8.1201 In General
8.1202 Statute of Limitations
8.1203 Release
8.1204 Withdrawal
8.1205 Discharge
8.1206 Subordination
8.1207 Nonattachment

8.13 PROCEEDINGS TO REMOVE A FEDERAL TAX LIEN
8.1301 In General
8.1302 Collection Due Process
8.1303 Judicial Sales
8.1304 Nonjudicial Sales (Sales by a Trustee of a Deed of Trust)

8.14 ESTATE AND GIFT TAX LIENS

APPENDIX 8-1: NOTICE OF FEDERAL TAX LIEN


CHAPTER 9: BANKRUPTCY: ITS EFFECT ON THE ENFORCEMENT OF LIENS AND JUDGMENTS  (back to top)

9.1 INTRODUCTION
9.101 In General
9.102 Common Types of Bankruptcy Relief
9.103 Types of Bankruptcy Claims
9.104 The Bankruptcy Estate
9.105 The Automatic Stay
9.106 Adequate Protection

9.2 THE TREATMENT AFFORDED CERTAIN ASSETS DURING BANKRUPTCY
9.201 Exempt Property
9.202 Entirety Property
9.203 Cash Collateral

9.3 PROTECTION AND ENFORCEMENT OF LIENS AND JUDGMENTS DURING BANKRUPTCY
9.301 Initial Proceedings
9.302 Proof of Claim
9.303 Motions Concerning the Use of Cash Collateral
9.304 Objections to Discharge and to Dischargeability
9.305 Motions to Lift the Automatic Stay
9.306 Reaffirmation Agreements

9.4 SALE OR OTHER USE DURING BANKRUPTCY OF ASSETS SUBJECT TO LIENS
9.401 Sales Free and Clear of Liens
9.402 Imposition of Junior or Senior Liens
9.403 Imposition of Administrative Charges

9.5 AVOIDANCE OR SUBORDINATION OF LIENS IN BANKRUPTCY
9.501 Preferences
9.502 Fraudulent Transfers Under the Bankruptcy Code
9.503 Fraudulent and Voluntary Transfers Under State Law
9.504 Leveraged Buyouts
9.505 Disallowance Under Section 502(d)
9.506 Equitable Subordination
9.507 Lien Avoidance Under Section 506

9.6 LETTERS OF CREDIT IN BANKRUPTCY
9.601 In General
9.602 Enforcement: Twist Cap and Beyond

9.7 MOTIONS TO DISMISS ON THE BASIS OF A BAD-FAITH FILING

9.8 TREATMENT OF COLLATERAL THAT IS NOT DISPOSED OF DURING BANKRUPTCY
9.801 Methods of Disposition
9.802 Chapter 11 Plans
9.803 Chapter 13 Plans

9.9 CONCLUSION

APPENDIX 9-1: NOTICE OF APPEARANCE

APPENDIX 9-2: MOTION FOR RELIEF FROM STAY


CHAPTER 10: RECEIVERSHIP AS A MEANS OF SATISFYING OBLIGATIONS DUE A CREDITOR  (back to top)

10.1 THE RECEIVERSHIP: AN OVERVIEW
10.101 Introduction
10.102 Types of Receivers and Their Roles
10.103 Statutory Remedies or Equity Jurisprudence

10.2 STATUTORY REMEDIES: CORPORATE DISSOLUTION AND APPOINTMENT OF A RECEIVER TO SATISFY A CREDITOR'S CLAIM
10.201 In General
10.202 Present Statutory Provisions
10.203 Insolvency
10.204 Effectuating and Ordering the Judicial Dissolution of a Corporation
10.205 The Appointment of a Receiver for a Corporation
10.206 The Permanent Receiver Charged with Liquidation of a Corporation

10.3 THE UNSECURED CREDITOR'S NON-STATUTORY REMEDIES
10.301 In General
10.302 The Nunnally Rule
10.303 Continuing Validity of the Nunnally Rule

10.4 APPOINTMENT OF A RECEIVER TO ENABLE A SECURED CREDITOR TO ENFORCE ITS CLAIM AND PRESERVE AND PROTECT THE LIENHOLDER'S COLLATERAL
10.401 Real Property
10.402 Personal Property
10.403 The Receiver's Expenses

10.5 CONSIDERATIONS OF THE COURT IN APPOINTING A RECEIVER
10.501 Discretionary Standard
10.502 Considerations
10.503 Presumption Against the Appointment of a Receiver
10.504 Showing Required

10.6 THE THREE TYPES OF SPECIAL RECEIVERS AND THEIR DUTIES
10.601 The Permanent Receiver
10.602 The Receiver Pendente Lite (Custodian)
10.603 The Emergency Receiver

10.7 THE MECHANICS OF APPOINTING A RECEIVER
10.701 Appointment of a Receiver

10.8 OTHER CONSIDERATIONS IN THE APPOINTMENT OF A RECEIVER
10.801 Who May Be a Receiver?
10.802 The Receiver's Bond
10.803 Compensation of the Receiver
10.804 Receiver's Certificates
10.805 Priority for Certain Administrative Claims
10.806 Termination of the Receivership

10.9 PROPERTY IN THE HANDS OF A RECEIVER
10.901 The Receivership Does Not Alter Creditor Priorities
10.902 The Assets Held by the Receiver Are Immune from Creditor Interference
10.903 The Receiver Holds the Property Subject to the Court's Directions
10.904 Preservation and Distribution of Real Estate

10.10 THE CREDITOR'S RIGHT TO BE COMPENSATED FOR ITS CLAIM WHEN A RECEIVER HAS BEEN APPOINTED
10.1001 In General
10.1002 The Secured Creditor
10.1003 The Unsecured Creditor
10.1004 Unmatured and Contingent Claims

10.11 INTERPLAY OF RECEIVERSHIP LAW WITH THE BANKRUPTCY CODE
10.1101 Receiver's Role When the Entity Files for Bankruptcy Protection
10.1102 Involuntary Filing Considerations
10.1103 Environmental Law Considerations

APPENDIX 10-1: COMPLAINT FOR EMERGENCY APPOINTMENT OF A SPECIAL RECEIVER AND INJUNCTIVE RELIEF


CHAPTER 11: FAIR DEBT COLLECTION PRACTICES ACT  (back to top)

11.1 IN GENERAL

11.2 RESEARCH MATERIALS AND PROFESSIONAL ASSOCIATIONS

11.3 NATURE OF THE FAIR DEBT COLLECTION PRACTICES ACT
11.301 Congressional Purpose
11.302 Applicability to Attorneys
11.303 Exception for Formal Pleadings
11.304 Initial Communication
11.305 Applicability Limited to "Consumer" Debt
11.306 Applicability to Particular Types of Debts
11.307 Applicability Limited to "Debt Collectors"
11.308 Applicability to Subsequent Debt
11.309 Applicability to Litigation
11.310 Applicability to Attorneys

11.4 VIOLATIONS OF THE FDCPA
11.401 Communications
11.402 Harassment or Abuse
11.403 False or Misleading Representations
11.404 Unfair Practices
11.405 Application of Payments
11.406 Venue

11.5 REMEDIES
11.501 Civil Liability
11.502 Administrative Enforcement
11.503 Equitable Relief
11.504 Setoff
11.505 Jurisdiction
11.506 Standing
11.507 Right to Jury Trial
11.508 Statute of Limitations

11.6 DEFENSES
11.601 "Bona Fide Error"
11.602 "Good Faith Reliance"

11.7 BANKRUPTCY CASES
11.701 Applicability of the FDCPA in Bankruptcy Cases
11.702 Property of the Estate
11.703 Standing of the Trustee or Debtor in Possession
11.704 Jurisdiction
11.705 Statute of Limitations
11.706 Abandonment
11.707 Effect of Closing the Case
11.708 Post-Discharge Collection Efforts

APPENDIX 11-1: CROSS-REFERENCE TABLE

APPENDIX 11-2: SAMPLE LETTER TO CONSUMER

APPENDIX 11-3: FAIR DEBT COLLECTION PRACTICES ACT (FDCPA) NOTICE

TABLE OF AUTHORITIES

INDEX

 

Authors

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