John Halpern and a panel of three other attorneys presented a continuing legal education seminar, which was sponsored by the Hennepin County Bar Association’s Debtor-Creditor Committee. The site of the seminar was the Minnesota Law Center in downtown Minneapolis, and CLE credit was earned by attorneys in attendance and attorneys on the webcast.
Topics Covered at HCBA Seminar on February 17, 2016
1. Strategies for Collecting Money Before Judgment
A. What is the extent of your success when attempting to collect a delinquent account by letter and by telephone?
B. When working on a delinquent commercial account, do you urge amicable payment while also referencing your option to commence litigation?
C. When suing a business entity, do you check with the Minnesota Secretary of State for correct legal name?
D. At what point in the collection process do you run a PACER search regarding a debtor=s possible bankruptcy?
E. After verbally resolving a collection matter, do you usually send debtor, or debtor=s attorney, a letter confirming the payment arrangement, or do you routinely draft a Payment Stipulation and Confession of Judgment?
2. Creative Defenses to Collection Litigation
A. The Hennepin County District Court Administrator’s Vault B at the Hennepin County Government Center contains a treasure trove of pleadings including filed Answers in contested cases, accessible by computers.
B. In contested collection cases, are the following provisions often set forth in the Answers you draft and serve upon opposing counsel (or see opposing counsel asserting)?
1. Denies each and every thing, matter, and allegation of plaintiff’s Complaint unless hereinafter specifically admitted or qualified and puts plaintiff to its strict proof thereof.
2. Admits the allegations set forth in the following paragraphs of plaintiff’s Complaint.
3. Alleges that defendant performed itemized services to [or provided goods, merchandise, and/or materials for] plaintiff in accordance with defendant’s contractual obligation to plaintiff in a commercially reasonable matter.
4. Alleges that paragraph contains a legal conclusion for which no response is required, but if a response is required, defendant denies same.
5. On information and belief, the following affirmative allegations may apply:
a. Failure to join necessary and indispensable parties.
b. Claims barred by the applicable statute of limitations.
c. Any damages sustained by plaintiff were due to the negligence, acts, or omissions of third parties over which defendant has no control or that plaintiff’s negligence, acts, or omissions caused or contributed to plaintiff’s damages.
d. Reserved the right to interpose additional affirmative defenses as warranted by the discovery of additional evidence.
e. Failed to state a claim upon which relief may be granted against defendant.
f. Bound by the doctrine of unclean hands.
g. Barred by waiver.
h. Barred by estoppel.
i. Barred by failure of a crucial stated or implied condition.
j. Barred under the doctrine of impossibility.
C. When representing defendants, do you explore the possibility of a Counterclaim and/or a Third Party Complaint?
3. Fraudulent Transfers (a/k/a Voidable Transactions): Analysis and Advice
A. What has been your experience in being asked to evaluate and possibly litigate fraudulent transfer (a/k/a voidable transaction) cases?
B. What are the pragmatic impediments to actually collecting money judgments obtained in fraudulent transfer (voidable transaction) cases?
4. Jumping Through Judicial Hoops in Contested Cases
A. Since the state district courts started requiring Scheduling Orders and Discovery Conferences in contested cases, often requiring mediation before a trial setting, how have these changes impacted the litigation process?
B. Do you have some contested litigation advice or tips you can share with your colleagues?
5. How Chapter 7 Bankruptcy Trustees Maximize Recovery
A. What statutory tools can a Chapter 7 Bankruptcy Trustee use to compel full disclosure and seek monetary redress from debtors and third parties?
B. What lessons have the practicing bar learned from the Madoff, Petters, and Hecker clawback cases (and other bankruptcy litigation matters)?