| Publication Date: | 2022 |
| Electronic Forms: | 188 |
| Available Formats: | Print (1,382 pages, softcover, 2 volumes) |
| Electronic (searchable PDF via flash drive, CD, or immediate download) | |
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| Product #: | 857 |
Content Highlights:
“The book is important because it is the only book of its kind. It is written both from the point of view of attorneys and judges. It answers virtually every question that could be asked about any area of collection law. No other text has such a wealth of case citations from federal courts at all levels, as well as state courts, including extensive discussion of relevant circuit court decisions. Armed with this text, an attorney should be able to form the best available argument on every legal issue which has ever been encountered by the authors in practice, or by the Judge from the bench.”
– Hon. Robert A. Pustilnik, co-author
The new edition of Debt Collection for Virginia Lawyers: A Systematic Approach covers changes in the law through the 2022 Regular Session of the General Assembly. This comprehensive handbook provides a foundation for a Virginia collections practice, covering both Virginia and federal law, including the Fair Debt Collection Practices Act. Of particular value to a practicing attorney are the large number of practice forms and dozens of practice tips and warnings.
Just a few of the recent developments addressed in the new edition:
CHAPTER 1: OVERVIEW OF A COLLECTION PRACTICE AND THE COLLECTION PRACTICE SYSTEM
1.1 INTRODUCTION
1.101 Purpose of a Collection Practice System
1.102 Attorney Time
1.103 Expenses
1.104 Non-Attorney Staff
1.105 Debtor Index and File Numbers
1.106 Tickler System
1.2 DEALING WITH CLIENTS
1.201 Initial Meeting or Telephone Interview
1.202 Attorney-Client Communication
1.203 Settlements
1.204 Obtaining Information from the Client
1.205 Making Payment Arrangements with the Debtor
1.3 DEALING WITH DEBTORS
1.301 Staff’s Ability to Handle Contacts with Debtors
1.302 Conduct Toward the Debtor
1.4 EXPANSION OF A PRACTICE
1.401 Use of Non-Attorney Staff
1.402 Economy of Time
1.5 DEFENSIVE LAW PRACTICE
1.501 Documentation
1.502 Dealing with the Courts
1.503 Ethical Considerations
1.6 DEVELOPING A COLLECTION SYSTEM
1.601 Beginning a Collection Practice
1.602 Use of Non-Attorney Staff
1.603 Summary of a Collection System
1.604 Filing System
1.605 Index System
1.606 Claim Acknowledgment
1.607 Sending Demand
1.608 Tickler System
1.609 Time and Cost
1.7 LITIGATION AND EXECUTION SYSTEM
1.701 Attorney Time
1.702 Preparation by Non-Attorney Staff
1.703 Applications for Warrants
1.704 Motions for Judgment
1.705 Bills of Particulars
1.706 Recording Judgments
1.707 Executions
1.8 INFORMATION-GATHERING SYSTEM
1.9 BOOKKEEPING AND REMITTING SYSTEM
1.901 Maintaining an Escrow Account
1.902 Clients for Whom Monthly Statements Are Kept
1.903 Clients for Whom Monthly Statements Are Not Kept
1.904 Rules for Escrow Accounts
2.1 PRELIMINARY CONSIDERATIONS
2.101 Conflicts of Interest
2.102 Statutes of Limitations
2.103 Location or Venue
2.104 Kind and Quality of Claim
2.105 Amount of Claim
2.106 Commercial Versus Retail Claim
2.107 Nature of Claim
2.108 Amount to Claim for Client
2.109 Unreasonable Clients
2.110 Fee Arrangements
2.2 OPENING A FILE
2.201 In General
2.202 File Covers
2.3 ACKNOWLEDGMENT OF CLAIMS
2.301 In General
2.302 Types of Acknowledgments
2.303 Unusual Situations
2.304 Rejected Claims
2.305 Fair Debt Collection Practices Act Review
2.4 SENDING A DEMAND LETTER
2.401 In General
2.402 Commercial Demand and Follow-Up
2.403 Retail Demand and Follow-Up
2.404 Returned Demand Letters
2.405 Special Notices
2.5 DEBTOR’S RESPONSE
2.501 In General
2.502 Debtor’s Direct Response
2.503 Obtaining Note or Waiver of Statute of Limitations
2.504 Debtor’s Complaints or Defenses
2.6 OBTAINING AUTHORIZATION TO SUE
2.601 In General
2.602 Retail Matters
2.603 Commercial Matters
2.604 Content of Reports to Client
APPENDIX 2-1: WAIVER OF STATUTE OF LIMITATIONS
APPENDIX 2-2: COMMERCIAL DEMAND LETTER
APPENDIX 2-3: RETAIL DEMAND LETTER
APPENDIX 2-4: ACKNOWLEDGMENT OF RETAIL CLAIM WITH RATE CHANGE
APPENDIX 2-5: ACKNOWLEDGMENT OF COMMERCIAL CLAIM WITH RATE CHANGE
APPENDIX 2-6: UNAUTHORIZED PRACTICE RULE 3—COLLECTION AGENCIES
APPENDIX 2-7: RETAIL CLAIM JACKET
APPENDIX 2-8: RETAIL CLAIM JACKET
APPENDIX 2-9: COMMERCIAL CLAIM JACKET
APPENDIX 2-10: ACKNOWLEDGMENT LETTER AND REPORT
APPENDIX 2-11: ACKNOWLEDGMENT OF FORWARDED RETAIL CLAIM WITH RATE CHANGE
APPENDIX 2-12: CLAIM ACKNOWLEDGMENT LETTER REQUESTING INFORMATION ABOUT CLAIM
APPENDIX 2-13: RETURN OF CLAIM LETTER
APPENDIX 2-14: LETTER CLOSING FILE BECAUSE OF INSUFFICIENT DOCUMENTATION
APPENDIX 2-15: EXAMPLE OF INFORMATION TO BE NOTED IN THE FILE
APPENDIX 2-16: INITIAL REPORT TO FORWARDER ON RETAIL CLAIM
APPENDIX 2-17: INITIAL REPORT TO FORWARDER ON COMMERCIAL CLAIM
APPENDIX 2-18: INITIAL REPORT TO FORWARDER ON COMMERCIAL CLAIM
APPENDIX 2-19: INITIAL REPORT TO FORWARDER ON CONTESTED COMMERCIAL CLAIM
APPENDIX 2-20: INFORMATION REQUEST TO STATE CORPORATION COMMISSION
APPENDIX 2-21: INFORMATION REQUEST TO BUSINESS LICENSE BUREAU
APPENDIX 2-22: INITIAL REPORT TO FORWARDER ON COMMERCIAL CLAIM CITING STATUTE OF LIMITATIONS
APPENDIX 2-23: LETTER CLOSING FILE AND RETURNING CLAIMS BECAUSE OF CLIENT’S LACK OF RESPONSE
CHAPTER 3: FINANCIAL RECORDKEEPING, CLIENT ACCOUNTING, ESCROW ACCOUNTS, AND FEES
3.1 LOCATION OF RECORDS
3.2 ADVANCEMENT OF COSTS
3.3 ESCROW RECORDS
3.4 MONTHLY STATEMENTS
3.5 TIMING OF REMITTANCES AND MONTHLY STATEMENTS
3.6 ATTORNEY FEES
3.7 SUIT FEES
APPENDIX 3-1: FILE COVER WITH FINANCIAL ENTRY
APPENDIX 3-2: REMITTANCE CHECK
APPENDIX 3-3: RETAIL CLIENT FINANCIAL SHEET
CHAPTER 4: FAIR DEBT COLLECTION PRACTICES ACT
4.1 IN GENERAL
4.2 RESEARCH MATERIALS AND PROFESSIONAL ASSOCIATIONS
4.3 NATURE OF THE FAIR DEBT COLLECTION PRACTICES ACT
4.301 Congressional Purpose
4.302 Applicability to Attorneys
4.303 Exception for Formal Pleadings
4.304 Initial Communication
4.305 Applicability Limited to “Consumer” Debt
4.306 Applicability to Particular Types of Debts
4.307 Applicability Limited to “Debt Collectors”
4.308 Applicability to Subsequent Debt Collectors
4.309 Applicability to Litigation
4.310 Applicability to Attorneys
4.4 VIOLATIONS OF THE FDCPA
4.401 Communications
4.402 Harassment or Abuse
4.403 False or Misleading Representations
4.404 Unfair Practices
4.405 Application of Payments
4.406 Venue
4.5 REMEDIES
4.501 Civil Liability
4.502 Administrative Enforcement
4.503 Equitable Relief
4.504 Setoff
4.505 Jurisdiction
4.506 Standing
4.507 Right to Jury Trial
4.508 Statute of Limitations
.
4.6 DEFENSES
4.601 “Bona Fide Error”
4.602 “Good Faith Reliance”
4.7 BANKRUPTCY CASES
4.701 Applicability of the FDCPA in Bankruptcy Cases
4.702 Proofs of Claim
4.703 Property of the Estate
4.704 Standing of the Trustee or Debtor in Possession
4.705 Jurisdiction
4.706 Statute of Limitations
4.707 Abandonment
4.708 Effect of Closing the Case
4.709 Post-Discharge Collection Efforts
APPENDIX 4-1: CROSS-REFERENCE TABLE
APPENDIX 4-2: FDCPA NOTICE
APPENDIX 4-3: COVER LETTER
APPENDIX 4-4: “SAFE HARBOR” LETTER
CHAPTER 5: GATHERING INFORMATION
5.1 INTRODUCTION
5.2 CLIENT’S RECORDS
5.3 OFFICE LOCATION
5.4 CONTACT WITH DEBTOR BEFORE SUIT IS FILED
5.401 Written Correspondence
5.402 Telephone Contact
5.5 CONTACT WITH DEBTOR AFTER SUIT IS FILED
5.6 INFORMATION FROM BANKS
5.601 Debtor’s Check
5.602 Direct Inquiries
5.603 Locating a Business’ Bank
5.7 INFORMATION FROM THE DEPARTMENT OF MOTOR VEHICLES
5.701 In Virginia
5.702 In Other States
5.8 PUBLIC RECORDS
5.9 INFORMATION FROM MORTGAGE COMPANIES, LIENHOLDERS, AND OTHER CREDITORS
5.10 INFORMATION FROM CREDIT APPLICATIONS
5.11 INFORMATION FROM THE POST OFFICE
5.12 INFORMATION FROM EMPLOYER OR FORMER EMPLOYER
5.13 INVESTIGATORS
5.14 THE INTERNET, SOFTWARE, AND PRINT SOURCES
5.15 INFORMATION FROM MILITARY AUTHORITIES
5.16 INFORMATION FROM OTHER PEOPLE
5.1601 Neighbors
5.1602 Former or Estranged Spouse and Cosigners
5.1603 Former Co-Workers
5.1604 Sheriffs and Court Clerks
5.17 POST-JUDGMENT INTERROGATORIES
5.1701 Statutory Authority
5.1702 Statutory Procedure
5.1703 Dealing with Debtors Who Do Not Appear
5.1704 The Hearing
5.1705 Payments or Arrangements Before Hearing
5.1706 No-Service Returns
5.1707 Effect of Bankruptcy on Debtor Interrogatories
APPENDIX 5-1: LETTER TO BANK REQUESTING PAYOFF OF LIEN ON VEHICLE
APPENDIX 5-2: DMV REQUEST FOR VEHICLE INFORMATION FORM
APPENDIX 5-3: LETTER TO DEBTOR AT NEW LOCATION IN ANOTHER STATE
APPENDIX 5-4: LETTER TO COMMISSIONER OF REVENUE
APPENDIX 5-5: LETTER TO POSTMASTER
APPENDIX 5-6: REQUEST FOR CHANGE OF ADDRESS OR BOXHOLDER INFORMATION
APPENDIX 5-7: LETTER TO SHERIFF REQUESTING SECOND SERVICE OF PROCESS
APPENDIX 5-8: LETTER TO REPORTED EMPLOYER OF DEBTOR
APPENDIX 5-9: LETTER TO DEBTOR CONCERNING GARNISHMENT
APPENDIX 5-10: LETTER TO NONRESIDENT DEBTOR CONCERNING SUIT TO ENFORCE JUDGMENT
APPENDIX 5-11: SUMMONS TO ANSWER INTERROGATORIES (FORM DC-440)
APPENDIX 5-12: LETTER TO DEBTOR CONCERNING FAILURE TO APPEAR BEFORE THE COMMISSIONER
APPENDIX 5-13: CAPIAS
APPENDIX 5-14: LETTER TO SHERIFF REQUESTING THE ARREST OF DEFENDANT
APPENDIX 5-15: LETTER TO COMMISSIONER REQUESTING CANCELLATION OF HEARING
APPENDIX 5-16: LETTER TO COMMISSIONER REQUESTING CONTINUANCE
CHAPTER 6: IMPROVING THE CLIENT’S POSITION
6.1 INTRODUCTION
6.2 BEFORE THE CLAIM GOES TO THE ATTORNEY
6.3 DURING CONTACT WITH THE DEBTOR IN DISPUTED MATTERS
6.4 PAYMENTS BY DEBTOR TENDERED AS “PAYMENT IN FULL”
6.5 NOTE EVIDENCING AN OPEN ACCOUNT OR PAYMENT ON AN OPEN ACCOUNT
6.6 AFTER SUIT HAS BEEN FILED
6.7 OBTAINING JUDGMENT WHEN DEBTOR HAS ABSCONDED
6.8 TOLLING THE STATUTE OF LIMITATIONS
6.801 Tolling by Filing Suit
6.802 Other Tolling Provisions
6.803 Actions Against Estates
6.804 Dismissal with Prejudice; Dismissal Without Prejudice; Voluntary Dismissal of an Action Filed in Federal Court; Nonsuit
6.9 SANCTIONS
6.10 ASSIGNMENT OF PROCEEDS OF PERSONAL INJURY OR WRONGFUL DEATH CASES
6.11 OBTAINING A COSIGNER
6.12 ASSIGNMENT OF WAGES
6.13 MILITARY PERSONNEL AND FEDERAL EMPLOYEES
6.14 OBTAINING SECURITY FOR AN UNSECURED LOAN
6.15 BAD CHECKS
6.1501 Criminal Sanctions
6.1502 Civil Damages
6.16 LIABILITY OF INDIVIDUAL FOR ENTITY’S DEBTS
6.17 LIABILITY OF ENTITY FOR INDIVIDUAL’S DEBTS
6.18 LIABILITY OF DISSOLVED CORPORATION BY ESTOPPEL
6.19 SUSPENSION OF DRIVER’S LICENSE
6.20 RECOVERY OF CHILD SUPPORT OR SPOUSAL SUPPORT
6.21 RECOVERY OF CIVIL PENALTIES BY MEDICAL PROFESSIONALS
6.22 CIVIL PENALTIES FOR SHOPLIFTING AND EMPLOYEE THEFT
6.23 CIVIL PENALTIES FOR MAKING FALSE CLAIMS TO DEFRAUD THE COMMONWEALTH
6.24 CIVIL PENALTY FOR FAILURE TO PAY FOR GASOLINE
6.25 OTHER CIVIL PENALTIES OR STATUTORY AWARDS
6.26 EMPLOYER LIENS ON THIRD-PARTY ACTIONS IN WORKERS’ COMPENSATION AND UNINSURED MOTORIST CASES
6.27 RESTITUTION ORDERS
6.28 CURE OFFERS
6.29 DISSOLUTION OF LIMITED LIABILITY COMPANY OR LIMITED PARTNERSHIP
6.30 USING THE IRS (INDIRECTLY)
6.31 CONCLUSION
APPENDIX 6-1: BILL OF PARTICULARS INCORPORATING DEBTOR’S ADMISSION
APPENDIX 6-2: LETTER TO DEBTOR CONFIRMING PAYOUT PLAN
APPENDIX 6-3: PROMISSORY NOTE
APPENDIX 6-4: LETTER ACKNOWLEDGING RECEIPT OF PARTIAL PAYMENT
APPENDIX 6-5: SAMPLE BILL OF PARTICULARS
APPENDIX 6-6: CONFESSION OF JUDGMENT NOTE
APPENDIX 6-7: AFFIDAVIT FOR SERVICE OF PROCESS ON THE SECRETARY OF THE COMMONWEALTH (FORM DC-410)
APPENDIX 6-8: ASSIGNMENT OF PROCEEDS OF LITIGATION
APPENDIX 6-9: GUARANTY AGREEMENT
APPENDIX 6-10: GUARANTY AGREEMENT—ALTERNATIVE FORM
APPENDIX 6-11: WAGE ASSIGNMENT
APPENDIX 6-12: LETTER TO COMMANDING OFFICER OF DEBTOR
APPENDIX 6-13: LETTER TO PERSONNEL SUPERVISOR OF FEDERAL EMPLOYEE
APPENDIX 6-14: FOLLOW-UP LETTER TO PERSONNEL SUPERVISOR OF FEDERAL EMPLOYEE
APPENDIX 6-15: COURT-IMPOSED PAYMENT AGREEMENT
APPENDIX 6-16: DEBTOR’S PETITION FOR REINSTATEMENT OF LICENSE
APPENDIX 6-17: ORDER REINSTATING LICENSE
7.1 INTRODUCTION
7.2 CHOICE BETWEEN STATE COURT AND FEDERAL COURT
7.201 In General
7.202 Location of Court
7.203 Prevention of Delay by Defendant
7.204 Removal by Defendant to Federal Court
7.3 CHOICE BETWEEN CIRCUIT COURT AND GENERAL DISTRICT COURT
7.301 In General
7.302 General District Court
7.303 Circuit Court
7.4 SUIT FOR MONEY JUDGMENT IN GENERAL DISTRICT COURT
7.401 Forms
7.402 Procedure
7.403 Court Costs
7.404 Local Rules
7.405 Substitution of Counsel
7.5 VENUE IN GENERAL DISTRICT COURT
7.501 Venue
7.502 Preferred Venue
7.503 Permissible Venue
7.504 Forum Non Conveniens
7.505 Commercial Transactions
7.506 Practical Considerations
7.507 Agreement as to Venue
7.508 Multi-Party Actions
7.6 WARRANT IN DEBT IN GENERAL DISTRICT COURT
7.601 In General
7.602 Plaintiff
7.603 Limitations on Pro Se Actions
7.604 Naming the Defendant
7.605 Defendant’s Address
7.606 Amount Due
7.607 Interest
7.608 Basis of Claim
7.609 Return Date
7.7 WARRANT IN DETINUE IN GENERAL DISTRICT COURT
7.701 In General
7.702 Venue
7.703 Property Claimed
7.704 Damages
7.705 Attorney Fees
7.706 Statute of Limitations
7.707 Prejudgment Remedy of Detinue
7.708 Use of Detinue to Try Title to Property or Determine Rights of Possession
7.709 Form of Judgment and Election
7.710 Execution
7.711 Emergency Detinue
7.8 MOTION FOR JUDGMENT IN GENERAL DISTRICT COURT
7.801 Requirements
7.802 Advantages
7.9 CIVIL WARRANT OR MOTION FOR JUDGMENT UNDER SECTION 8.01-28
7.10 UNLAWFUL DETAINER ACTIONS
7.1001 Unlawful Entry and Detainer
7.1002 Tenant’s Personal Property
7.11 COURTROOM PRACTICE IN GENERAL DISTRICT COURT
7.1101 In General
7.1102 Obtaining Judgment in Uncontested Cases
7.1103 Service of Process
7.1104 Continuances
7.1105 Dismissal of Paid Claims
7.1106 Contested Cases
7.1107 Judgments
7.1108 Post-Judgment Remedies
7.1109 Special Process Server
7.1110 Duration of and Renewal of General District Court Judgments
7.1111 Retention of General District Court Records
7.12 ACTIONS IN CIRCUIT COURT
7.1201 Jurisdiction
7.1202 Confession of Judgment
7.13 REMOVAL TO CIRCUIT COURT
7.14 APPEALS TO CIRCUIT COURT
7.1401 In General
7.1402 Bond
7.1403 Trial de Novo
7.1404 Practice Tips
7.1405 Final Order
7.1406 Withdrawal of Appeals
7.15 SUIT BY VERIFIED ACCOUNTS AND CONTRACTS
7.16 COUNTERCLAIMS
7.17 DISCOVERY
7.18 DEFAULT JUDGMENTS
7.19 DISMISSAL OF SUIT DUE TO INACTION OF THE PARTIES
7.20 EXECUTION ON JUDGMENTS
7.21 RECORDATION OF JUDGMENTS
7.2101 Obtaining an Abstract of Judgment
7.2102 Creating a Lien
7.2103 Procedure for Recording Judgments
7.2104 Enforcement of Judgment Liens
7.2105 Judgments Against Nonresident Defendants
7.2106 Validity of Judgment Against Subsequent Transferee
7.2107 Other Reasons for Recording Judgments
7.2108 Recording Foreign Judgments, Judgments of Other States, and Judgments of Federal Courts
7.22 RELEASE OF JUDGMENTS
7.2201 Duty to Release Judgment
7.2202 Procedure
7.2203 Releasing Recorded Judgments
7.2204 Release of Judgment by Judgment Debtor
7.23 CLOSED FILES
7.24 SMALL CLAIMS COURT
7.25 ALTERNATIVE DISPUTE RESOLUTION
APPENDIX 7-1: PROMISSORY NOTE
APPENDIX 7-2: GENERAL DISTRICT COURT CIVIL FEES ASSESSMENT
APPENDIX 7-3: WARRANT IN DEBT (FORM DC-412)
APPENDIX 7-4: WARRANT IN DEBT—SMALL CLAIMS DIVISION (FORM DC-402)
APPENDIX 7-5: WARRANT IN DEBT (ACTION BY INDIVIDUAL AGAINST INDIVIDUAL FOR A DEBT)
APPENDIX 7-6: WARRANT IN DEBT (ACTION BY CORPORATION AGAINST INDIVIDUAL AND GUARANTOR)
APPENDIX 7-7: WARRANT IN DEBT (ACTION BY FOREIGN CORPORATION AGAINST RESIDENT INDIVIDUAL)
APPENDIX 7-8: WARRANT IN DEBT (ACTION BY COMPANY IN REPRESENTATIVE CAPACITY AGAINST INDIVIDUAL WHERE BUSINESS IS NO LONGER OPERATING)
APPENDIX 7-9: WARRANT IN DEBT REQUESTING COMPOUND INTEREST
APPENDIX 7-10: WARRANT IN DEBT (ACTION BY PERSON IN REPRESENTATIVE CAPACITY AGAINST MULTIPLE DEFENDANTS CLAIMING INTEREST AT A RATE HIGHER THAN JUDGMENT RATE)
APPENDIX 7-11: WARRANT IN DEBT (ACTION BY MINOR AGAINST CORPORATION)
APPENDIX 7-12: WARRANT IN DEBT (ACTION BY SUCCESSOR CORPORATION AGAINST NONRESIDENT CORPORATION WITHOUT A REGISTERED AGENT)
APPENDIX 7-13: WARRANT IN DEBT (ACTION BY SUBROGEE FOR PROPERTY DAMAGE)
APPENDIX 7-14: WARRANT IN DEBT (ACTION BY PARTNERSHIP AGAINST NONRESIDENT INDIVIDUAL)
APPENDIX 7-15: WARRANT IN DEBT (ACTION BY PROFESSIONAL FOR SERVICES RENDERED TO MINOR CHILD)
APPENDIX 7-16: WARRANT IN DEBT (ACTION BY INDIVIDUAL TRADING UNDER FICTITIOUS NAME AGAINST INDIVIDUAL WITHOUT STREET ADDRESS)
APPENDIX 7-17: WARRANT IN DEBT (ACTION BY HEALTH CARE PROVIDER AGAINST PERSON IN REPRESENTATIVE CAPACITY)
APPENDIX 7-18: WARRANT IN DEBT (ACTION BY INDIVIDUAL AGAINST INDIVIDUAL WITH UNKNOWN LAST NAME)
APPENDIX 7-19: MOTION FOR JUDGMENT
APPENDIX 7-20: MOTION FOR JUDGMENT
APPENDIX 7-21: CERTIFICATE OF MAILING
APPENDIX 7-22: NOTICE OF COMMENCEMENT OF ACTION AND REQUEST FOR WAIVER OF SERVICE OF PROCESS AND ACCEPTANCE/WAIVER OF SERVICE OF PROCESS AND WAIVER OF FUTURE SERVICE OF PROCESS AND NOTICE
APPENDIX 7-23: BILL OF PARTICULARS—CONTRACT OR NOTE
APPENDIX 7-24: BILL OF PARTICULARS—DEFICIENCY ACTION
APPENDIX 7-25: BILL OF PARTICULARS—OPEN ACCOUNT
APPENDIX 7-26: NOTICE OF CHANGE OF ADDRESS (FORM DC-437)
APPENDIX 7-27: ABSTRACT OF JUDGMENT (FORM DC-465)
APPENDIX 7-28: SUMMONS FOR UNLAWFUL DETAINER (FORM DC-421)
APPENDIX 7-29: NOTICE OF HEARING TO ESTABLISH FINAL RENT AND DAMAGES (FORM DC-422)
APPENDIX 7-30: REQUEST FOR WRIT OF POSSESSION IN UNLAWFUL DETAINER PROCEEDINGS (FORM DC-469)
APPENDIX 7-31: PROMISSORY NOTE
APPENDIX 7-32: CONFESSION OF JUDGMENT
APPENDIX 7-33: LETTER TO CLERK OF COURT CONCERNING CONFESSION OF JUDGMENT
APPENDIX 7-34: LETTER TO CLERK OF COURT AUTHORIZING RELEASE OF JUDGMENT
APPENDIX 7-35: DEFAULT JUDGMENT ORDER
APPENDIX 7-36: DEFAULT JUDGMENT ORDER, SERVICE OF PROCESS BY POSTING
APPENDIX 7-37: DEFAULT JUDGMENT ORDER, ORE TENUS HEARING
APPENDIX 7-38: REQUEST FOR ABSTRACT OF JUDGMENT
APPENDIX 7-39: LETTER TO CLERK REQUESTING RECORDATION OF ABSTRACT OF JUDGMENT
APPENDIX 7-40: LETTER TO ASSESSOR OF REAL ESTATE REQUESTING DESCRIPTION OF PROPERTY
APPENDIX 7-41: RECORDATION OF JUDGMENT
APPENDIX 7-42: AFFIDAVIT OF NAME CHANGE BY DEFENDANT
APPENDIX 7-43: LETTER TO PURCHASER OF REAL ESTATE SUBJECT TO JUDGMENT LIEN
APPENDIX 7-44: LETTER TO DEBTOR ADVISING OF JUDGMENT LIEN
APPENDIX 7-45: LETTER TO CLERK OF DISTRICT COURT RELEASING JUDGMENT
APPENDIX 7-46: NOTICE OF SATISFACTION (FORM DC-458)
APPENDIX 7-47: LETTER TO CLERK OF CIRCUIT COURT RELEASING JUDGMENT
APPENDIX 7-48: AUTHORIZATION OF CLERK OF COURT TO RELEASE JUDGMENT
APPENDIX 7-49: AUTHORITY TO CLERK OF COURT TO RELEASE DOCKETED JUDGMENT
APPENDIX 7-50: CASE STATUS CARD
APPENDIX 7-51: CASE STATUS CARD
APPENDIX 7-52: CASE STATUS CARD
APPENDIX 7-53: SERVICE OTHER THAN BY VIRGINIA SHERIFF (FORMS DC-411 AND CC-1407)
APPENDIX 7-54: NOTICE FOR REVIVAL OF JUDGMENT
APPENDIX 7-55: ORDER TO SHOW CAUSE FOR REVIVAL OF JUDGMENT
APPENDIX 7-56: ORDER FOR REVIVAL OF JUDGMENT
APPENDIX 7-57: NOTICE AND MOTION FOR JUDGMENT
APPENDIX 7-58: AFFIDAVIT CONCERNING SERVICE OF PROCESS ON A CORPORATION
APPENDIX 7-59: AFFIDAVIT—DEFAULT JUDGMENT—SERVICEMEMBERS CIVIL RELIEF ACT (FORM DC-418)
APPENDIX 7-60: MOTION TO REHEAR/MOTION FOR NEW TRIAL (FORM DC-368)
APPENDIX 7-61: MOTION TO SET ASIDE DEFAULT JUDGMENT (FORM DC-434)
APPENDIX 7-62: BILL OF PARTICULARS (FORM DC-441)
APPENDIX 7-63: GROUNDS OF DEFENSE (FORM DC-442)
APPENDIX 7-64: MOTION AND NOTICE OF HEARING (FORM DC-371)
APPENDIX 7-65: MOTION FOR JUDGMENT TO BE MARKED SATISFIED (FORM DC-459)
APPENDIX 7-66: SUBPOENA DUCES TECUM (CIVIL)—ATTORNEY ISSUED (FORM DC-498)
APPENDIX 7-67: SUBPOENA FOR WITNESS (CIVIL)—ATTORNEY ISSUED (FORM DC-497)
APPENDIX 7-68: MOTION AND ORDER FOR VOLUNTARY NONSUIT (FORM DC-419)
APPENDIX 7-69: NOTICE OF MOTION FOR NONSUIT AS A MATTER OF RIGHT
APPENDIX 7-70: ORDER
APPENDIX 7-71: NOTICE OF HEARING ON MOTION TO SUFFER A SECOND OR SUBSEQUENT NONSUIT
APPENDIX 7-72: ORDER
APPENDIX 7-73: NOTICE OF APPEAL—CIVIL (FORM DC-475)
APPENDIX 7-74: CIVIL APPEAL BOND (FORM DC-460)
APPENDIX 7-75: WARRANT IN DETINUE (FORM DC-414)
APPENDIX 7-76: WRITS OF POSSESSION AND FIERI FACIAS IN DETINUE (FORM DC-468)
APPENDIX 7-77: MOTION AND NOTICE AND JUDGMENT FOR ARREARAGES (FORM DC-625)
APPENDIX 7-78: ITEMIZED LIST OF DAMAGES (FORM DC-443)
CHAPTER 8: EXECUTIONS ON JUDGMENTS
8.1 LEVY (EXECUTION ON PERSONAL PROPERTY)
8.101 In General
8.102 Issuance of Writ
8.103 Effect of Lien and Levy
8.104 Effect of Prior Lien
8.105 Levy on Money
8.106 Procedure
8.107 Sheriff’s Reports
8.108 Determining Whether to Proceed with Sale
8.109 Using a Locksmith to Enter Premises
8.110 Posting Bond
8.111 Client’s Approval
8.112 Steps Short of Sale
8.113 Sheriff’s Sale
8.114 Conclusion
8.2 EXECUTION ON PROPERTY NOT CAPABLE OF BEING LEVIED UPON
8.201 In General
8.202 Notice
8.203 Practical Application
8.204 Conclusion
8.3 GARNISHMENT
8.301 In General
8.302 Prerequisites to Filing
8.303 Initiation of Garnishment
8.304 Court in Which Garnishment May Be Filed
8.305 Filling Out a Garnishment Form
8.306 Calculating the Amount of the Garnishment
8.307 Garnishment Answer
8.308 Examination of Garnishee Defendant
8.309 Judgment on the Garnishment
8.310 Bank Account Garnishment
8.311 The Exemption Hearing
8.312 Liens of Other Creditors on Debtor’s Bank Account
8.313 Other Garnishments
8.314 Effect of Bankruptcy on a Pending Garnishment
8.315 A Word to the Wise
8.316 Reference
8.4 RELEASING GARNISHMENTS
8.401 Procedure
8.402 Conditional Release
8.403 Reasons to Release a Garnishment
8.404 Arrangements for Payment
8.405 Releasing a Checking Account Garnishment
8.406 Improving the Client’s Position
8.407 Conclusion
8.5 JUDGMENT CREDITORS’ SUITS
8.501 In General
8.502 Liens of Homeowners’ Associations
8.503 Partition of Jointly Owned Property
8.504 Setting Aside Fraudulent Conveyances
8.505 A Hypothetical Case
8.506 Parties
8.507 Complaint
8.508 Procedure and Evidence
8.509 Practical Considerations
8.510 Effect of Bankruptcy
8.511 Liability of Deceased Debtor’s Real Estate for Payment of Debts
8.512 Conclusion
8.6 CHARGING ORDERS—EXECUTIONS AGAINST AN INTEREST IN A PARTNERSHIP OR LLC
8.601 In General
8.602 Procedure
8.603 Practice Suggestions
8.604 Conclusion
8.7 PARTITION OF PERSONAL PROPERTY
8.8 DEBTOR’S EXEMPTIONS
8.801 In General
8.802 “Poor Debtor’s” Exemption
8.803 Homestead Exemption
8.804 Other Exemptions
8.805 Exemption for Disabled Veterans
8.806 Minimizing Debtor Exemptions
APPENDIX 8-1: WRIT OF FIERI FACIAS (FORM DC-467)
APPENDIX 8-2: ORDER OF DEFAULT JUDGMENT ALLOWING IMMEDIATE EXECUTION
APPENDIX 8-3: LETTER TO CLERK REQUESTING NEW EXECUTION TO BE SENT TO SHERIFF
APPENDIX 8-4: LETTER TO CLERK REQUESTING NEW EXECUTION RETURNED TO LAW FIRM
APPENDIX 8-5: LETTER TO SHERIFF REQUESTING LEVY
APPENDIX 8-6: LETTER TO SHERIFF REQUESTING LEVY ON SPECIFIC VEHICLE
APPENDIX 8-7: LETTER TO SHERIFF REQUESTING LEVY ON VEHICLE AND ENCLOSING INDEMNIFYING BOND
APPENDIX 8-8: REPORT OF SHERIFF ADVISING DEBTOR PROPERTY WILL BE SOLD
APPENDIX 8-9: LETTER TO CREDITOR-CLIENT REQUESTING COSTS AND AUTHORIZATION TO PROCURE INDEMNIFYING BOND
APPENDIX 8-10: POWER OF ATTORNEY FOR INDEMNIFYING BOND
APPENDIX 8-11: LETTER TO SHERIFF REGARDING CONDITION AND VALUE OF PROPERTY
APPENDIX 8-12: LETTER TO SHERIFF REQUESTING AMOUNT OF BOND
APPENDIX 8-13: LETTER TO DEBTOR ADVISING THAT SHERIFF WILL BRING LOCKSMITH TO GAIN ENTRY TO MAKE LEVY
APPENDIX 8-14: NOTICE OF SHERIFF’S SALE
APPENDIX 8-15: NOTICE OF LIEN OF FIERI FACIAS
APPENDIX 8-16: LETTER TO CLERK REQUESTING ISSUANCE OF LIEN OF FIERI FACIAS
APPENDIX 8-17: LETTER TO SHERIFF REQUESTING SERVICE OF NOTICE OF FIERI FACIAS
APPENDIX 8-18: LETTER ADVISING WHY LIEN OF FIERI FACIAS WAS SERVED
APPENDIX 8-19: SUGGESTION FOR SUMMONS IN GARNISHMENT (FORM DC-450)
APPENDIX 8-20: GARNISHMENT SUMMONS (FORM DC-451)
APPENDIX 8-21: REQUEST FOR HEARING—GARNISHMENT EXEMPTION CLAIM (FORM DC-454)
APPENDIX 8-22: AFFIDAVIT CONCERNING DEPENDENT CHILDREN AND HOUSEHOLD INCOME (FORM DC-449)
APPENDIX 8-23: AFFIDAVIT TO SERVE GARNISHMENT ON REGISTERED AGENT
APPENDIX 8-24: AFFIDAVIT TO SERVE GARNISHMENT ON REGISTERED AGENT
APPENDIX 8-25: AFFIDAVIT TO SERVE GARNISHMENT ON REGISTERED AGENT
APPENDIX 8-26: GARNISHEE INFORMATION SHEET (FORM DC-455)
APPENDIX 8-27: GARNISHEE ANSWER (FORM DC-456)
APPENDIX 8-28: LETTER TO EMPLOYER REGARDING FAILURE TO ANSWER IN GARNISHMENT PROCEEDING
APPENDIX 8-29: SHOW CAUSE SUMMONS (FORM DC-481x)
APPENDIX 8-30: AFFIDAVIT REGARDING FICTITIOUS NAME
APPENDIX 8-31: NOTICE OF HEARING
APPENDIX 8-32: LETTER TO TENANTS NOTIFYING THEM OF GARNISHMENT OF RENT
APPENDIX 8-33: LETTER TO CLERK RELEASING GARNISHMENT
APPENDIX 8-34: LETTER TO GARNISHEE RELEASING GARNISHMENT
APPENDIX 8-35: GARNISHMENT DISPOSITION (FORM DC-453)
APPENDIX 8-36: ORDER DISMISSING GARNISHMENT—MONEY PAID TO ATTORNEY
APPENDIX 8-37: ORDER DISMISSING GARNISHMENT—EMPLOYER HOLDING MONEY
APPENDIX 8-38: ORDER DISMISSING GARNISHMENT—MONEY PAID TO COURT
APPENDIX 8-39: LETTER TO EMPLOYER AGREEING TO ACCEPT CHECK AND RELEASE GARNISHMENT
APPENDIX 8-40: LETTER TO BANK RELEASING GARNISHMENT
APPENDIX 8-41: AGREEMENT WITH DEBTOR TO RELEASE GARNISHMENT
APPENDIX 8-42: WAGE ASSIGNMENT
APPENDIX 8-43: COMPLAINT IN JUDGMENT CREDITOR’S SUIT— PROPERTY UNENCUMBERED
APPENDIX 8-44: COMPLAINT IN JUDGMENT CREDITOR’S SUIT— PROPERTY TRANSFERRED SUBSEQUENT TO JUDGMENT
APPENDIX 8-45: COMPLAINT IN JUDGMENT CREDITOR’S SUIT— PROPERTY ENCUMBERED
APPENDIX 8-46: COMPLAINT IN PARTITION SUIT
APPENDIX 8-47: ANSWER OF DEFENDANT TRUSTEE—JUDGMENT CREDITOR’S SUIT
APPENDIX 8-48: ANSWER OF DEFENDANT—PARTITION SUIT
APPENDIX 8-49: CHANCERY DECREE OF REFERENCE—JUDGMENT CREDITOR’S SUIT
APPENDIX 8-50: DECREE CONFIRMING COMMISSIONER’S REPORT AND ORDERING SALE— JUDGMENT CREDITOR’S SUIT
APPENDIX 8-51: DECREE CONFIRMING COMMISSIONER’S REPORT AND ORDERING SALE—PARTITION SUIT
APPENDIX 8-52: REPORT OF SPECIAL COMMISSIONER
APPENDIX 8-53: REPORT OF SPECIAL COMMISSIONER
APPENDIX 8-54: DECREE OF CONFIRMATION
APPENDIX 8-55: DECREE OF CONFIRMATION
APPENDIX 8-56: SPECIAL COMMISSIONER’S DEED
APPENDIX 8-57: SPECIAL COMMISSIONER’S DEED
APPENDIX 8-58: PETITION FOR DISTRIBUTION
APPENDIX 8-59: PETITION FOR DISTRIBUTION
APPENDIX 8-60: ORDER OF DISTRIBUTION
APPENDIX 8-61: ORDER OF DISTRIBUTION
APPENDIX 8-62: LETTER TO DEBTOR ADVISING OF JUDGMENT CREDITOR’S SUIT
APPENDIX 8-63: LETTER TO DEBTOR ADVISING OF HEARING BEFORE COMMISSIONER IN CHANCERY
APPENDIX 8-64: LETTER TO DEBTOR CONFIRMING ARRANGEMENTS FOR PAYING JUDGMENT UPON DISMISSAL OF JUDGMENT CREDITOR’S SUIT
APPENDIX 8-65: MEMORANDUM OF LIS PENDENS AFFECTING REAL ESTATE SUIT PURSUANT TO SECTIONS 64.2-532 THROUGH 64.2-538 OF THE VIRGINIA CODE
APPENDIX 8-66: FINAL ORDER IN SUIT PURSUANT TO SECTIONS 64.2-532 THROUGH 64.2-538 OF THE VIRGINIA CODE
APPENDIX 8-67: HOMESTEAD DEED TO CLAIM PERSONAL PROPERTY PURSUANT TO SECTION 34-14 OF THE VIRGINIA CODE
APPENDIX 8-68: WAGE GARNISHMENT FACT SHEET
9.1 INTRODUCTION
9.2 CLAIMS FOR WHICH AN ATTACHMENT MAY BE BROUGHT
9.201 In General
9.202 Jurisdiction
9.203 Venue
9.204 Grounds
9.3 COMMENCING THE ATTACHMENT ACTION
9.4 PLEADINGS AND ORDERS
9.5 SUBSEQUENT PROCEDURE
9.6 TRIAL
9.7 PRACTICAL CONSIDERATIONS
9.8 PROBLEM AREAS
APPENDIX 9-1: NOTICE OF LIS PENDENS OR ATTACHMENT
APPENDIX 9-2: PETITION FOR ATTACHMENT—PERSONAL PROPERTY
APPENDIX 9-3: PETITION FOR ATTACHMENT—SPECIFIC PERSONAL PROPERTY AND REAL ESTATE
APPENDIX 9-4: ATTACHMENT TO BE SERVED BY THE SHERIFF
APPENDIX 9-5: FINAL ORDER
APPENDIX 9-6: FINAL ORDER
APPENDIX 9-7: ATTACHMENT PETITION (FORM DC-445)
APPENDIX 9-8: ATTACHMENT SUMMONS (FORM DC-446)
APPENDIX 9-9: PLAINTIFF’S BOND FOR LEVY OR SEIZURE (FORM DC-447)
CHAPTER 10: REAL PROPERTY FORECLOSURES
10.1 INTRODUCTION
10.2 PRELIMINARY MATTERS
10.201 In General
10.202 Qualification of Trustees
10.203 Separation of Title
10.204 Equity of Redemption
10.3 LOAN DOCUMENTS
10.301 Note
10.302 Deed of Trust
10.303 Title Insurance
10.304 Account History
10.305 Authorization to Foreclose
10.4 PRIORITY OF LIENS
10.401 Scope of Title Examination
10.402 Real Estate Tax Lien
10.403 Cloud on Title
10.404 Determination by Court
10.405 Mechanics’ Liens
10.406 Lis Pendens
10.5 REQUIRED NOTICES
10.501 Notices Required by the Fair Debt Collection Practices Act
10.502 Lost Note Notice
10.503 Notices of Acceleration and Foreclosure
10.504 Advertisement
10.505 Notice to the Internal Revenue Service
10.506 Notice to Other Interested Parties
10.507 Post-Sale Notice Required for Residential Properties
10.6 SUBSTITUTION OF TRUSTEES
10.7 RECEIVERS
10.8 CONDUCT OF FORECLOSURE SALE
10.801 In General
10.802 Time
10.803 Place
10.804 Manner
10.805 Terms
10.806 Individual and Bulk Offerings
10.807 Personal Property
10.808 One Price Written Bid
10.809 Right of Noteholder or Trustee to Bid
10.810 Valuation
10.811 Deposit
10.812 Completion of Sale
10.813 Recess and Postponement of Sale
10.814 Enforcement of Sale
10.815 Closing
10.816 Distribution of Sale Proceeds
10.817 Trustee’s Fees and Expenses
10.818 Release of Deed of Trust
10.9 REPORT TO COMMISSIONER OF ACCOUNTS
10.901 Statutory Requirement
10.902 Effect of Failure to File
10.903 Contents of Report
10.904 Disposition of Documents
10.905 Approval Process; Exceptions
10.906 Effect of Confirmation
10.907 Surcharge and Falsification
10.908 Collateral Attacks
10.10 POST-SALE REMEDIES
10.1001 Deficiency Actions
10.1002 Obtaining Possession
10.1003 Purchaser’s Default
10.11 FEDERAL LIENS AND REDEMPTION RIGHTS
10.1101 Creation of Federal Tax Lien
10.1102 Priority
10.1103 Notice
10.1104 Consent
10.12 MECHANICS’ LIENS, JUDGMENT LIENS, AND TAX LIENS
10.1201 Mechanics’ Liens
10.1202 Judgment Liens
10.1203 Tax Liens
10.13 DEED IN LIEU OF FORECLOSURE
10.14 BANKRUPTCY CONSIDERATIONS
10.1401 Automatic Stay
10.1402 Reaffirmation
10.1403 Cure of Default
10.1404 Equity of Redemption
10.15 ETHICAL ISSUES
10.1501 Professional Corporation as Trustee
10.1502 Corporate Trustee
10.1503 Employee of the Noteholder as Trustee
10.1504 Fiduciary Responsibility of the Trustee
10.1505 Trustee Bidding at Sale
10.1506 Compliance with Deed of Trust Terms
10.1507 Conflicts of Interest
10.16 COMMISSION AND EXPENSES
10.1601 Trustee’s Commission
10.1602 Lesser and Greater Charges
10.1603 Expenses
10.17 THE SERVICEMEMBERS CIVIL RELIEF ACT
10.1701 In General
10.1702 Applicability
10.1703 Foreclosure-Related Protections Afforded by the SCRA
10.1704 Methods of Protection
APPENDIX 10-1: LETTER TO CLIENT REGARDING RECEIPT OF FILE
APPENDIX 10-2: APPOINTMENT OF SUBSTITUTE TRUSTEE
APPENDIX 10-3: LETTER TO DEBTOR ADVISING OF FORECLOSURE
APPENDIX 10-4: NOTICE OF TRUSTEE’S SALE OF PROPERTY
APPENDIX 10-5: LETTER TO NEWSPAPER ADVERTISING FORECLOSURE
APPENDIX 10-6: BIDDING INSTRUCTIONS
APPENDIX 10-7: LIST OF BIDDERS ATTENDING SALE
APPENDIX 10-8: TRUSTEE’S MEMORANDUM OF SALE
APPENDIX 10-9: SUBSTITUTE TRUSTEE’S DEED
APPENDIX 10-10: SUBSTITUTE TRUSTEE’S REPORT
APPENDIX 10-11: LETTER TO INTERNAL REVENUE SERVICE REGARDING LIEN
APPENDIX 10-12: NOTICE OF NONJUDICIAL SALE OF PROPERTY
APPENDIX 10-13: LETTER TO COMMISSIONER OF ACCOUNTS REGARDING REPORT
APPENDIX 10-14: PARTIAL REPORT OF TITLE
APPENDIX 10-15: NOTICE TO QUIT PREMISES
CHAPTER 11: MEMORANDUM OF LIS PENDENS
11.1 INTRODUCTION
11.2 PURCHASER PENDENTE LITE
11.3 FILING A MEMORANDUM OF LIS PENDENS
11.4 RELEASE OF A LIS PENDENS
11.5 USE OF LIS PENDENS IN COLLECTION MATTERS
11.6 IMPROPER USE OF LIS PENDENS
11.7 CONCLUSION
APPENDIX 11-1: MEMORANDUM OF LIS PENDENS AFFECTING REAL ESTATE—PARTITION SUIT
APPENDIX 11-2: MEMORANDUM OF LIS PENDENS AFFECTING REAL ESTATE—FRAUDULENT CONVEYANCE
12.1 IN GENERAL
12.101 Statutory Creation
12.102 Statutory Construction
12.2 WHO MAY CLAIM THE LIEN
12.201 Identifying a Mechanic’s Lien Claimant
12.202 Statement Declaring Intention to Claim the Benefit of a Lien Required
12.203 Laborers and Suppliers
12.204 Architects, Engineers, and Surveyors
12.205 General Contractors and Subcontractors
12.3 PROPERTY SUBJECT TO THE LIEN
12.301 In General
12.302 Public Property
12.303 Multiple Contracts, Lots, Units, or Buildings
12.304 Utility and Paving Contractors
12.305 Leased Property
12.306 Condominiums
12.307 Time-Share Property
12.4 PERFECTING THE LIEN
12.401 The 90-Day Rule
12.402 “Completed or Otherwise Terminated”
12.403 Replacement Materials; Open Accounts
12.404 Certification of Mailing
12.5 MECHANICS’ LIEN AGENTS
12.501 In General
12.502 Designating the Mechanics’ Lien Agent
12.503 Posting the Building Permit
12.504 Sufficiency of the Building Permit
12.505 Notice Requirements
12.506 Evidence of Receipt
12.507 Inaccurate Description of the Property
12.508 Time Period for Notice
12.509 Notice After the 30-Day Period
12.510 Determining Whether a Proper Building Permit Has Been Issued
12.511 Amendment of Building Permit
12.512 Exceptions to the Requirement to Notify the Mechanics’ Lien Agent
12.6 AFFIDAVIT VERIFYING PAYMENT FOR LABOR AND MATERIALS
12.601 Purchaser to Be Provided Affidavit or Statement at Settlement
12.602 Penalty for Failure to Provide
12.7 THE 150-DAY RULE
12.701 Statutory Basis of Rule
12.702 Cases Construing the Rule
12.8 STATUTORY FORMS FOR THE MEMORANDUM OF LIEN
12.801 The Contractor’s Memorandum
12.802 The Subcontractor’s Memorandum
12.803 Statement Declaring Intention to Claim the Benefit of a Lien Required
12.9 DEFENSES
12.901 Owner’s Priority
12.902 Limitation on the Amount Claimed by Subcontractors and Sub-Subcontractors
12.903 Licensure of Claimant
12.10 PERSONAL LIABILITY OF OWNER OR GENERAL CONTRACTOR
12.1001 Remedy Created by Section 43-11 of the Virginia Code
12.1002 Creation of Personal Liability of Owner and General Contractor
12.1003 Priority of the Section 43-11 Claim
12.1004 Owner’s Right to Setoff for Work Not Completed by General Contractor
12.1005 Limitations on Owner’s or General Contractor’s Liability
12.11 ENFORCEMENT OF THE LIEN
12.1101 Complaint
12.1102 Intervening Petition by Other Lienholders
12.1103 Parties
12.1104 When the Suit Must Be Brought
12.1105 Automatic Stay in Bankruptcy
12.1106 Scope of Jurisdiction
12.1107 Sale of the Property
12.1108 Challenging the Validity of Lien
12.1109 Court-Ordered Release
12.1110 Diverting Funds
12.12 PRIORITY OF LIENS
12.1201 In General
12.1202 Priority over Deeds of Trust
12.1203 Priority over Security Interest in Accounts Receivable
12.1204 Priority Among Mechanics’ Liens
12.1205 Removal of Materials Affixed to the Structure
12.1206 Federal Liens
12.13 ALTERNATIVES TO MECHANICS’ LIENS
12.1301 Civil Suit
12.1302 Statutory Alternatives
12.1303 Threat of Filing
12.1304 Contract Provisions
12.14 MISCELLANEOUS CONSIDERATIONS
12.1401 Assignment
12.1402 Waiver
12.1403 Slander of Title
12.1404 Forfeiture
12.1405 Release or Discharge
12.1406 Attorney Fees
12.15 PRACTICAL EFFECTS OF FILING A LIEN
12.1501 Effect on the Owner
12.1502 Effect on the Claimant’s Business
12.1503 Effect on the General Contractor
12.1504 Effect on the Construction Lender
12.1505 Effect on the Title Agency
APPENDIX 12-1: MEMORANDUM FOR MECHANIC’S LIEN CLAIMED BY GENERAL CONTRACTOR UNDER SECTION 43-4 OF THE VIRGINIA CODE
APPENDIX 12-2: MEMORANDUM FOR MECHANIC’S LIEN CLAIMED BY SUBCONTRACTOR UNDER SECTION 43-7 OF THE VIRGINIA CODE
APPENDIX 12-3: MEMORANDUM FOR MECHANIC’S LIEN CLAIMED BY SUB-SUBCONTRACTOR UNDER SECTION 43-9 OF THE VIRGINIA CODE
APPENDIX 12-4: COMPLAINT TO ASSERT CLAIM AGAINST BOND ON STATE BUILDING OR PROJECT
APPENDIX 12-5: DISCLOSURE STATEMENT FOR SITE DEVELOPMENT IMPROVEMENTS
APPENDIX 12-6: NOTICE TO MECHANICS’ LIEN AGENT PURSUANT TO SECTION 43-4.01 OF THE VIRGINIA CODE
APPENDIX 12-7: OWNERS’ AFFIDAVIT AS TO MECHANICS’ LIENS AND POSSESSION (WITH “GAP” COVERAGE)
APPENDIX 12-8: COMPLAINT TO ENFORCE MECHANIC’S LIEN
APPENDIX 12-9: STATEMENT OF ACCOUNT
APPENDIX 12-10: PETITION TO BOND OFF LIEN UNDER SECTION 43-71 OF THE VIRGINIA CODE
APPENDIX 12-11: BOND TO BOND OFF LIEN UNDER SECTION 43-71 OF THE VIRGINIA CODE
APPENDIX 12-12: DECREE TO BOND OFF LIEN UNDER SECTION 43-71 OF THE VIRGINIA CODE
APPENDIX 12-13: ATTORNEY CHECKLIST FOR MECHANIC’S LIEN CASE
CHAPTER 13: OTHER LIENS
13.1 INTRODUCTION
13.2 INNKEEPERS’ LIENS
13.3 LIVERY STABLE OR MARINA KEEPERS’ LIENS
13.4 MECHANICS’ LIEN FOR REPAIRS
13.5 ENFORCEMENT OF LIENS
13.6 REPRESENTING SECURED CREDITORS
13.7 REPRESENTING MECHANICS AND STOREKEEPERS
13.8 RIGHTS OF THIRD PARTIES
13.9 CONCLUSION
APPENDIX 13-1: SUMMONS—LIEN OF MECHANIC FOR REPAIRS (FORM DC-463)
APPENDIX 13-2: COMPLAINT
CHAPTER 14: BANKRUPTCY CONSIDERATIONS
14.1 INTRODUCTION
14.2 CHAPTER 7
14.201 Overview of Chapter 7
14.202 Creditor Strategies in Chapter 7 Cases
14.3 CHAPTER 11
14.301 Overview of Chapter 11
14.302 Effect on Secured Claims of Confirmation of a Chapter 11 Plan
14.303 Chapter 11 Creditor Strategies
14.4 CHAPTER 13
14.401 Overview of Chapter 13
14.402 Secured Non-Priority Creditors
14.403 Claims Secured by Debtor’s Residence
14.404 Effect of Confirmation on a Deed of Trust Lien
14.405 Chapter 13 Creditor Strategies
14.406 Overview of the Automatic Stay
14.407 The Bankruptcy Estate: Property Interests Subject to the Automatic Stay
14.408 Property Exempt from the Automatic Stay
14.409 Acts Exempt from the Automatic Stay
14.410 The Co-Debtor Stay of 11 U.S.C. § 1301
14.411 Violations of the Automatic Stay
14.412 Duration of the Stay
14.5 RELIEF FROM THE AUTOMATIC STAY
14.501 The Statute
14.502 Bankruptcy Rule 4001
14.503 No Automatic Stay on Appeal
14.504 Local Rules
14.505 Grounds for Relief from the Automatic Stay
14.506 Motion for Relief
14.507 Ex Parte Relief
14.508 Notice
14.509 Certificates
14.510 Experts
14.511 Non-expert Opinion
14.512 Trial
14.513 Scope of Relief
14.6 OTHER CREDITORS’ ISSUES IN BANKRUPTCY
14.601 Fraudulent Conveyance Attacks
14.602 Creditors’ Interest in Rents
14.603 Lien Avoidance
14.604 Reaffirmation
14.605 Exemptions
APPENDIX 14-1: MOTION FOR RELIEF FROM STAY (CHAPTER 7)
APPENDIX 14-2: MOTION FOR RELIEF FROM STAY (CHAPTER 13)
APPENDIX 14-3: MOTION FOR RELIEF FROM STAY (CHAPTER 11)
APPENDIX 14-4: PRE-HEARING ORDER
APPENDIX 14-5: MOVANT’S CERTIFICATION REQUIRED WITH RESPECT TO MOTION FOR RELIEF FROM STAY
APPENDIX 14-6: NOTICE OF MOTION FOR RELIEF FROM STAY
APPENDIX 14-7: NOTICE OF MOTION
APPENDIX 14-8: NOTICE OF MOTION (OR OBJECTION)
APPENDIX 14-9: ORDER (CHAPTER 7)
APPENDIX 14-10: ORDER (CHAPTER 13)
APPENDIX 14-11: REAFFIRMATION DISCLOSURE STATEMENT
APPENDIX 14-12: REAFFIRMATION AGREEMENT
APPENDIX 14-13: CERTIFICATION BY DEBTOR’S ATTORNEY
APPENDIX 14-14: DEBTOR’S STATEMENT IN SUPPORT OF REAFFIRMATION AGREEMENT
APPENDIX 14-15: MOTION FOR COURT APPROVAL OF REAFFIRMATION AGREEMENT
APPENDIX 14-16: ORDER APPROVING REAFFIRMATION AGREEMENT
TABLE OF AUTHORITIES
INDEX
Hon. Robert A. Pustilnik
Steven L. Higgs
James R. Hart
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