Monthly Archives: April 2013

It is a common mis-perception for people to believe that contracts must be in writing to be binding. While this is true for some agreements, an oral contract may also be legally upheld. Additionally, contracts can be express of implied.

The minimum requirements to be contractually bound are fairly simple, including:

·         An agreement (generally referred to as an offer and acceptance) between two or more people.

·         Supported by consideration. Consideration refers to promising to do something that you are not obligated to do or refraining from doing something that you have a legal right to do. Consideration must be mutual. This generally requires each party to give up something as such, a promise to provide a gift does not qualify as a valid contract even if it is in writing.

·         The parties entering into the agreement must intend to be bound and must have the mental capacity to understand that they are entering into a binding contract.

·         The purpose of the contract must be legal

If you have entered into a binding contract and one of the other parties has failed to meet the terms of the agreement, we can help you recover damages for losses incurred, including the loss of “the benefit of the bargain” you would have received, as well as out-of-pocket costs resulting from the breach. If the contract provides for attorney’s fees to be paid by one of the parties in the event of a breach, we will also help you recover attorney’s fees you paid to us to prosecute or defend your claim.

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

When creditors are trying to collect on their past due accounts, they don’t want to spend a lot of money on the task. As a result, many believe that hiring a collection agency is the best route to take. This is true if your accounts are recent and the clients are cooperative. However, for more difficult delinquent accounts, the cost-effective method is to use an attorney to recover your money.

Using a skilled Arizona business attorney has many benefits:

• Clients are often more intimidated by an attorney
• Customers do not want to be held liable for your attorneys fees
• A lawyer can utilize the Arizona court system to enforce the debt
• An attorney can file judgment liens, garnishments and other post-judgment remedies for recovering the debt owed to you

At Windtberg & Zdancewicz, PLC, we understand that recovering the money owed to you is essential to your business. We take a fast and aggressive approach in recovering your accounts. We use every legal means available to get you paid. If you believe your past due accounts may be difficult to recover, don’t waste time and money, let an attorney get the results you want.

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We handle many types of business disputes on behalf of both creditors. Our attorneys handle cases from pre-litigation negotiations through litigation, obtaining and enforcing judgments to collect what our clients are owed.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

Many creditors are shocked to learn (after the fact) that debtors in a Chapter 13 bankruptcy may be allowed to “strip” or remove their lien from real property. When does this happen?

• If the real property is the debtor’s principal residence
• The debtor filed a Chapter 13 case
• Your lien is a junior, non-purchase money debt
• The value of the real property is LESS than the sum of all senior lien.

If the real property is not the debtor’s principal residence, the lien can be partially or fully avoided depending on the value of the property.

If you have a judgment lien rather than a consensual mortgage lien based on a loan, it is possible for the debtor to avoid your lien in a Chapter 7 or Chapter 13. If the lien attached to the real property prior to the filing of the bankruptcy case, it impairs the debtor’s homestead exemption provided by the Bankruptcy Code. Again, the value of the property and the amount of the senior liens on the date the case was filed must be considered.

This is a confusing area of law. If you are a creditor facing this circumstance, contact Windtberg & Zdancewicz, PLC, to assist you.

If you are interested in learning more about your rights as a creditor, contact Windtberg & Zdancewicz, PLC, at 480.584.5660.  Our office is located in Tempe, Arizona.  We handle all matters related to a creditor’s rights against a bankrupt borrower.  Our attorneys handle cases from pre-litigation collection through litigation, obtaining and enforcing judgments to collect what our clients are owed.

Getting clients and customers to pay you is essential to your business. Providing reasons or incentives to pay their invoices promptly can make all the difference. A few options are:

• Accept credit card payments. Allowing a client to pay by credit card often gives them the ability to pay their entire invoice. Obviously you will have to pay a small percentage to the credit card company for each transaction, but this is minimal compared to not being paid at all.

• Offer a discount for payments made promptly. By offering a 5-10% discount for clients who pay their invoice promptly, you may be surprised at the response. Everyone is looking for ways to save money, and receiving your customer’s payments quickly is great for your business.

• Charge interest on overdue accounts. Even negative incentives can motivate your clients to make timely payments. Consider charging a higher interest rate on the unpaid balance if payment is not made within 30 days of your invoice.

There are other ways to motivate your clients do make timely payments. Get creative and see what works. If you need legal assistance, contact Windtberg & Zdancewicz, PLC, to schedule an appointment.

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation. Our attorneys handle cases from pre-litigation negotiations through litigation, obtaining and enforcing judgments to collect what our clients are owed.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

Many creditors do not know whether or not attending the 341 meeting or “meeting of creditors” would be beneficial to them. The answer largely depends on the particular circumstances of the debt. However, as a general rule, attending this meeting does not provide a creditor a large benefit. Due to the time constraints, questioning of the debtor by creditors is very limited. If you wish to discover detailed information about the debtor, your better option is to seek court approval to take the debtor’s deposition under Bankruptcy Rules 2004.

A few examples of questions the trustee typically asks the debtor at the meeting of creditors are as follows:

•Have you reviewed your bankruptcy pleadings and is everything true and correct?

•Did you list everything that you own and everything that you owe?

•Do you expect any kind of windfall (like an inheritance) in the near future?

•Do you have any claims against anyone (like a lawsuit)?

•Where do you live and where do you work?

•Do you own any real property other than your home?

As you can see, these types of questions are likely not the type of information you are seeking. If you need assistance obtaining court approval to conduct a deposition of the debtor, contact an attorney at Windtberg & Zdancewicz, PLC, to assist you.

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

Whether your business is large or small, you are going to encounter customers and clients who do not pay what they owe you. This is often a main contributing factor to why so many businesses fail within their first two years of operation. Thus, it is important that business owners understand that no matter how much business a client brings you, they are not a good client if they are not paying you.

It is true there are exigent circumstances that sometimes prevent a customer from paying you, but the majority of the time it is being done on purpose. Thus, when you first start your business, you may want to find creative ways to provide yourself more financial protection than simply ‘trusting’ that payment will be made.

Depending on the type of business you run, it may or may not be possible to use these tactics. However, if you are able to do so, consider:

• Requiring upfront payment. This can be especially important when you are providing a service.
• Requiring a partial payment upfront. Once a customer has invested into your service, the client is more likely to complete payment.
• Create a payment schedule that requires a one-third payment upfront, another third at the halfway point of the project, and the remaining third when the project is completed.

Regardless of what you decide, stick with it! Inform the client of the payment plan from the beginning. Chances are once the project has started and they have already paid money, they will continue to pay to get the project completed.

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation in all collection matters.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance with your collection matters, please contact us at (480) 584-5660.

If you have a judgment against a debtor, a wage garnishment is an effective tool for recovering the money owed to you. A wage garnishment is an order from a court that is sent to the debtor’s employer. It requires the employer to withhold a certain amount of money from your paycheck and then send this money directly to you.

It is important to note that Arizona law limits the amount that judgment creditors can garnish from a debtor’s paycheck. Creditors can only garnish nonexempt wages, and the amount they can take is limited. The law protects a debtor’s need to have enough to pay for living expenses. Also, a creditor can only garnish from a debtor’s disposable earnings. “Disposable earnings” are those wages left after your employer has made deductions required by law.

Arizona follows the limits on wage garnishments established by federal law. Of your nonexempt disposable earnings, a creditor can only take the lessor of the following:

• 25% of your non-exempt weekly earnings, or
• the amount of your non-exempt weekly earnings that exceeds 30 times the federal minimum wage.

If you have questions regarding wage benefits and how they can benefit you, contact Windtberg & Zdancewicz to schedule an appointment.

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

If you deal with a variety of customers or clients, it is important that you establish firm and clear payment guidelines. These guidelines should be incorporated into a credit application and signed by the customer. Additionally, terms should be printed on your shipping documents, invoices and contracts.

Examples of guidelines that creditors typically use include:

• Payment is due within 30 days from the date goods or services are provided
• If payment is not received within that time, the creditor should provide written notice to the customer or client that the account will be turned over to an attorney if payment is not received
• Call the customer to follow-up and discuss a forthcoming payment
• If payment is not timely received, the account should be placed with an attorney
• A creditor’s rights attorney will use every resource available to recover the money owed to you

Many creditors wait too long before taking efforts to recover the money owed to them. The longer you delay, the less likely you are to get paid in full.  As time passes, the borrower may move or close business. The information provided on the credit application becomes outdated, making tracking down the borrower more difficult.

If you need help creating payment guidelines or enforcing them, contact Windtberg & Zdancewicz today.

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  Our attorneys handle cases from pre-litigation negotiations through litigation, obtaining and enforcing judgments to collect what our clients are owed.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.

If you own or manage a business, it is important that you find a trustworthy business litigation attorney. Whether you need assistance with recovering money owed to you or representation in a contract dispute, at some point you will need the assistance of a business attorney.

Many business attorneys deal with the transactional side of things only. However, a business litigation attorney knows how to get matters resolved in court. You want a lawyer who is proficient in filing the right documents with the court and how to efficiently obtain the result you want. Having somebody you can rely upon when the need arises is essential to the success and growth of your business.

There are many remedies out there for businesses who have not been paid by customers and other clients who owe them money.  It is important for a business to ensure that any legal remedies are used whenever disputes or conflicts arise with regard to their business.  In addition to recovering money that is due, a business litigation attorney will also represent and defend an entity that is being sued. You want a lawyer who knows how to aggressively defend your best interests if the need should ever arise.

If you are looking for business litigation attorneys you can trust, contact Windtberg & Zdancewicz, PLC, to schedule an appointment.

The attorneys at Windtberg & Zdancewicz, PLC, provide Arizona residents and businesses with experienced legal representation in all collection matters.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance with your collection matters, please contact us at (480) 584-5660.

When it comes to guarantees, it is better to get them than to give them! A guaranty agreement obligates a party for the liability of another party. Arizona law requires that a guaranty agreement must be in writing. If you are a lender, it is always a good idea to obtain a guaranty agreement on substantial loans.

In a commercial transaction between legal entities with limited liability, individuals often sign guaranty agreements. The individuals are often the owners, members or managers of the entity. These individuals are typically reluctant to agree to be personally liable for the loan to the entity since it was created to shield them from liability, but the extension of credit to a corporate entity without any personal guarantees accompanying it could be a suspect transaction.

Arizona is a community property state. If your individual guarantor is married, both spouses must sign the guaranty in order to bind the marital community property.

Before you extend credit to a corporate entity, it is imperative that you investigate its creditworthiness and ability to repay the debt. If there is any indication that the corporation is not creditworthy, a personal guaranty by the principals, and their spouses, of the corporation should be required.

If you have any questions regarding personal guarantees or you need assistance drafting a guarantee document, please contact Windtberg & Zdancewicz, PLC today.

The attorneys at Windtberg & Zdancewicz, PLC, provide clients with experienced legal representation.  We handle many types of business disputes on behalf of both creditors and debtors. Our attorneys handle cases from pre-litigation negotiations through litigation, obtaining and enforcing judgments to collect what our clients are owed.  We are experienced in creditor’s rights including garnishments, charging orders, attachment, property execution, trustee’s sales, foreclosures, judgments, judgment collection, domestication of foreign judgments, and creditor’s issues in bankruptcy cases.  If you need assistance, or are interested in learning more, please contact us at (480) 584-5660.