Creditors' Rights and Collection
At Rubin & Levin, we dedicate ourselves to protecting creditors in every aspect of commercial transactions. Whether pre-default strategy and document preparation, or post-default collections and execution, we are the creditors’ rights firm in Indiana.
With two certified specialists, we have the experience necessary to negotiate, litigate and resolve claims involving sales of goods, services rendered, leases and other contracts, replevins, foreclosure of security interests, receiverships, bankruptcies, out-of-court workouts, forbearance agreements, promissory notes and any other legal issue facing creditors.
Frequently Asked Questions
Can I recover interest on the debt?
In Indiana, you can recover pre-judgment interest at a rate specified in a written contract (subject to certain limitations for consumer transactions and loansharking), this usually includes a rate set out on invoices provided to the debtor. The rate of 8% per annum applies in the event there is no rate provided for in any writing between the parties.
Do I need a contract to recover?
In most cases a contract is not required. If your transaction is one for the sale of goods and you have no written contract, the requirement of a writing (the “statute of frauds”) can be satisfied by invoices, purchase orders, partial payments, and any other indicia of an agreement. Essential terms not provided for in the writings can be supplied by the Uniform Commercial Code.
What can I expect once a lawsuit is filed?
Once a lawsuit is filed, service must be obtained on the debtor by sheriff or certified mail. The service returns are filed with the court and if proper service is not obtained, alias summonses are issued. Depending on the type of service obtained, debtor has 20- 23 days to appear and answer the complaint. Generally, an 30-day extension of time is granted. Thereafter, a motion for summary judgment may be filed requesting the court to enter judgment without the necessity of trial when there are no factual disputes and judgment can be entered as a matter of law. This motion requires a response 30 days after service and the court may schedule a hearing on the motion. If summary judgment is unsuccessful, trial will be set by the court. The process can take anywhere from six months to several years, depending on the pleadings filed and the court calendar.
What is a guaranty and why do I need one?
A guaranty is an agreement to be responsible for the debt of another. A guaranty can be from a person or another entity; it can be unconditional, limited, or contingent. In Indiana, guarantees must be in writing, and guarantors are favored in the law. This means that any ambiguity will be resolved in favor of the guarantor. Obtaining a guaranty increases the likelihood of collectibility of a claim by increasing the number of entities liable for the debt.
What is a restrictive endorsement on a check?
A restrictive endorsement is any indication that a check for less than the full amount owed is being presented to settle the debt. Restrictive endorsements can be written on the face or reverse side of a check, or on a letter accompanying or preceding presentment of the check. If cashed, the check may constitute an “accord and satisfaction,” resulting in the creditor forfeiting the balance of the claim. In some cases, a restrictively-endorsed check can be returned within 90 days to avoid settling the debt. Cashing a check “with reservation of rights” is ineffective in Indiana.
Why is a credit application important?
A credit application provides invaluable information when a debt is placed for collection, such as the name of the debtor, tax identification or social security numbers, banking information, etc. It also allows for the opportunity to establish terms governing your relationship with the debtor: the interest rate being charged; jurisdiction and venue provisions; waiver of jury demands or relief from valuation and appraisement laws; and recovery of collection costs or attorneys fees.