Edited by James L. Baillie, Phillip L. Kunkel, Ryan T. Murphy & Samuel J.H. Sigelman
The Debtor-Creditor Handbook with eFormbook is written to be a user-friendly guide to judgments and execution, precollection practice, debtor’s assets, liens, collection and defense, secured and unsecured creditors, and much more! The Handbook is written by experienced attorneys and judges, and edited by James Baillie and Phillip Kunkel to ensure both accuracy as well as a balanced approach to all topics covered in this valuable resource. The 11th Edition of the Debtor-Creditor Handbook includes a brand-new chapter covering Remedies Available Against LLC Entities as well as updates to every chapter, new practice tips and author comments, updated forms, and much more!
2018 UPDATE
The 2018 Update to the Debtor Creditor Handbook with eFormbook includes updates to all 26 existing chapters, updated forms, and a brand-new chapter on Commercial Lending. The Update covers new case law and changes to statutes and rules. Update highlights include a new chapter covering topics in Commercial Lending, analysis of the latest Supreme Court decisions related to the Fair Debt Collection Practices Act, new sections on 2018 successor-in-interest requirements, an updated chapter including the latest revisions to Minnesota’s Farmer-Lender Mediation Act, updated practice tips throughout the Handbook, and much more! The updated Debtor Creditor eFormbook also provides subscribers will electronic access to more than 160 forms! The Debtor Creditor Handbook with eFormbook is better than ever, and a must-have for any attorneys practicing in this area!
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CHAPTER 1
Fair Debt Collection Practices Act
Introduction; Overview of Fair Debt Collection Practices Act; Consumer Protections
– Todd Murray
CHAPTER 2
Exemptions
Introduction; Minnesota Exemptions; Bankruptcy Code; Risks of Bankruptcy; Appendix A – Chart Comparing Exemptions
– Ryan T. Murphy
CHAPTER 3
Farmer-Lender Mediation Act
Introduction; Voluntary Mediation Proceedings; Mandatory Mediation: Applicability; Mandatory Mediation: Pre-Mediation: Pre-Mediation Notices and Filings; Mandatory Mediation: Other Pre-Mediation Procedures and Requirements; Mandatory Mediation: Mediation Procedure; Mandatory Mediation: Post-Mediation Procedure
– Matthew C. Berger & Dean Zimmerli
CHAPTER 4
Charging Orders and Other Remedies with Respect to Interests in Partnerships and LLCs
Introduction; The Charging Order Remedy; Exceptions to Charging Order Exclusivity
– Terese A. West
CHAPTER 5
Attachment
Introduction; Actions Where Remedy is Available, Jurisdiction and Venue; Grounds for Attachment; Property Subject to Attachment; Procedure for Attachment; Duties of the Sheriff; Rights of Respondent; Nature of the Attachment Lien and Priority; Claims of Third Parties; Enforcement of the Attachment Lien; Release Upon Satisfaction or Discharge
– James L. Baillie
CHAPTER 6
Judgments and Execution
Judgments; Execution
– Andrew J. Steil
CHAPTER 7
Locating Assets
Introduction; Non-Judicial Methods of Locating Assets; Judicial Methods of Locating Assets
– Derrick N. Weber & Megan J. Kunze
CHAPTER 8
Working With the Sheriff
History of the Office of Sheriff; Introduction to the Minnesota Sheriff; Sheriff’s Powers and Duties; Receipt of Process; Methods of Collection; Appendix A – Anoka County Sheriff’s Office Civil Process Fee Schedule; Appendix B – Minnesota State Sheriff’s Association Directory (2015); Appendix C – Financial Institution Levy; Appendix D – Levy on Earnings; Appendix E – Writ of Execution/Sale of Homestead Property; Appendix F – Writ of Execution/Sale of Non-Homestead Property; Appendix G – Writ of Execution/Sale of Personal Property
– Rod Nelson
CHAPTER 9
Garnishment
Background; When Garnishment is Authorized; Procedures; Types of Property Which May Become Subject to Garnishment; Federal Benefit Payments; Procedures/Rights Affecting Garnishee; Rights of Debtor; Rights of Third Parties; Garnishment of Funds at a Financial Institution; Pre-Judgment Garnishment
– Thomas E. Hoffman
CHAPTER 10
Receiverships and Assignment for the Benefit of Creditors
Introduction; General and Limited Receiverships; From Appointment to Discharge Under the Statute; Assignment for the Benefit of Creditors; Affected Statutes; Appendix A – S.F. No. 2327 (Proposed Amendments to Minnesota Statutes section 559.17); Appendix B – H.F. No. 2650 (Proposed Amendments to Minnesota Statutes Section 559.17)
– Jeffrey R. Ansel
CHAPTER 11
Involuntary Bankruptcy
Introduction; Jurisdiction and Venue; Debtors Subject to an Involuntary Bankruptcy Proceeding; Petitioning Creditor Requirements; Procedure; Defenses to an Involuntary Petition; Gap Period; Miscellaneous Issues if Bankruptcy Order for Relief Issues
– James A. Lodoen
CHAPTER 12
Fraudulent Transfers, Now Voidable Transactions, and State Law Preferences
Introduction; What Law Applies; Elements of a Fraudulent Transfer Under UFTA and a Voidable Transaction Under UVTA; Limitations Period; Transfers Which Are Not Fraudulent Under UFTA or Voidable Under UVTA; Right to Jury Trial; Litigation Considerations; Standing; Remedies; Transferee Defenses; Leveraged Buyouts as Voidable Transactions; Intercorporate Guaranties; Ponzi Schemes as Fraudulent Transfers; Related Areas; State Law Preferences; Appendix A – Comparison of Bankruptcy Code § 548, UFCA, UFTA, and UVTA Provisions
– Shannon M. O’Toole
CHAPTER 13
Garnishing Wages of Federal Employees
Introduction; The Waivers of Sovereign Immunity; Garnishments for Child Support and Alimony; Garnishments for Consumer Debts
– Friedrich A. P. Siekert & Cindy Loken
CHAPTER 14
Mechanics Liens
Introduction; Persons Entitled to a Mechanic’s Lien; Property Interests Subject to a Mechanic’s Lien; Pre-Lien Notice; Amount of the Mechanic’s Lien; Rights of an Owner to Make and Withhold Payment; Perfecting the Mechanic’s Lien; Priorities; Foreclosure; Findings of Fact, Conclusions of Law, and Order for Judgment; Sale of the Real Estate; Bankruptcy; Civil Remedy for Contractor Conversion
– Gregory T. Spalj, Nathan R. Sellers & Sara E. Porter
CHAPTER 15
Contractors’ Surety Bonds and Miller Act
Contractor Surety Bonds; Minnesota Public Works’ Bonds; Private Contract Bonds; Federal Contract Bonds (Miller Act Bonds); Rights of the Surety; Commercial and Miscellaneous Bonds; Developer/Subdivision Bonds; Motor Vehicle Dealer’s Bond; Mechanic’s Lien Discharge Bonds; Grain Buyer’s and Grain Storage Bonds; Probate Bonds
– Daniel R. Gregerson & Margaret L. Evavold
CHAPTER 16
Statutory Liens and Other Special Rights of Creditors
Introduction; Federal Statutory Trusts, Liens, Rights, and Priorities; Minnesota Statutory Liens Under Chapter 514; Other Statutory Liens; State Criminal Forfeiture Provisions; Local Unit of Government Liens
– Jennifer G. Lurken & Jeffrey D. Klobucar
CHAPTER 17
Tax Claims, Tax Liens, and Hot Goods
Introduction; Federal Tax Claims; Federal Tax Liens and Collection Procedures; State Tax; State Sales Taxes Payable by Lender; State Gift Tax; Vehicle Registration Tax; Unemployment Taxes; Minnesota’s Successor Liability Tax Statute; Requirements for Financial Institutions to Provide Data to the Minnesota Department of Revenue; Hot Goods
– Hon. Kathleen H. Sanberg & Michael R. Stewart
CHAPTER 18
Debtor Creditor Provisions in the Uniform Commercial Code
Introduction; General Provisions of the U.C.C.; Sales of Goods; Security Interests in Personal Property Leases; Negotiable Instruments and Deposit Accounts; Security Interests in Letters of Credit; Warehouse Receipts and Documents of Title; Security Interests in Investment Property
– Phillip L. Kunkel & Abigail M. McGibbon
CHAPTER 19
Secured Transactions Under The Uniform Commercial Code Article 9
Introduction; Scope of Article 9; Attachment of a Security Interest; Perfection of Security Interests; Choice of Law Rules; Priorities Among Conflicting Claimants; Default and Enforcement
– Steven W. Meyer & Emily M. Hendricks
CHAPTER 20
Replevin and Claim Delivery
Introduction; Jurisdiction and Venue; Prerequisites; Procedure for Claim Delivery; Jury Trial Subsequent Hearings, Verdict, and Judgment
– James L. Baillie
CHAPTER 21
The Basics of Representing Creditors in Bankruptcy Cases
Introduction; Bankruptcy Overview; Initial Actions; The Automatic Stay; Proofs of Claim; Discharge and Dischargeability; Specific Types of Claims; Avoidance Actions; Appeals; Jurisdiction and Authority of the Bankruptcy Court
– Erin Bryan & Alexander A. Rich
CHAPTER 22
Guaranties and Their Enforcement
Introduction; Identification of a Guaranty; General Legal Principles Applicable to a Guaranty; Determining When a Demand May be Made on a Guaranty; Revocable Versus Irrevocable Guaranties; Suretyship Defenses and Their Waiver; Defenses to Guaranty Enforcement; Subrogation; Multiple Guarantor Rules
– Steven J. Heim
CHAPTER 23
Workouts
Workouts Generally, From a Debtor’s Perspective; Workouts From a Lender’s Perspective Document Review; Review of Operations; Physical Inspection; Legal Review; Zone of Insolvency; Remedial Options; Other; Appendix A – Commercial Loan Workouts Checklist
– Mark J. Kalla & Kenneth Corey-Edstrom
CHAPTER 24
Foreclosures
Foreclosure by Advertisement Versus Foreclosure by Action; Foreclosure by Advertisement; Foreclosure by Action; Voluntary Foreclosures; Short Sales
– D. Charles Macdonald
CHAPTER 25
Consumer Protections Under the Servicemembers Civil Relief Act
Introduction; Purpose of the Servicemembers Civil Relief Act; Definitions – 50 U.S.C. § 3911; Jurisdiction – 50 U.S.C. § 3912; Beginning and Termination of Protections; Extension to Persons Secondarily Liable – 50 U.S.C. § 3913; Waiver of Rights and Protections Under the SCRA – 50 U.S.C. § 3918; Protection From Discrimination Against Servicemember – 50 U.S.C. § 3919; Default Judgments – 50 U.S.C. § 3931; Stay Provisions – 50 U.S.C. § 3921; Stay Where Servicemember Has Notice – 50 U.S.C. § 3932; Fines or Penalties Under Contracts – 50 U.S.C. § 3933; Stay or Vacation of Judgments – 50 U.S.C. § 3934; Tolling of Statutes of Limitation – 50 U.S.C. § 3936; Maximum Interest Cap on Pre-Service Debt – 50 U.S.C. § 3937; Evictions – 50 U.S.C. § 3951; Installment Contracts for Purchase or Lease – 50 U.S.C. § 3952; Mortgage Foreclosure Protection - 50 U.S.C. § 3953; Servicemember’s Right to Terminate Leases (Home, Business, Auto) – 50 U.S.C. § 3951-3959; Termination of Vehicle Leases; Termination of Telephone Service Contracts - 50 U.S.C. § 3956; Enforcement of Liens - 50 U.S.C. § 3958; Business or Trade Obligations Protections - 50 U.S.C. § 4926; Title VIII: Civil Liability; Minnesota Statutory Provisions; Appendix A – Additional Resources; Appendix B – Servicemembers Civil Relief Act Financial Services Provisions December 1, 2015 Recodification Chart
– Johanna Clyborne
CHAPTER 26
Consumer Law Considerations
Introduction; The Consumer Financial Protection Bureau: Section 1022(b) of the Dodd Frank Act, 12 U.S.C. § 5512(b); RESPA Servicing Provisions; Truth In Lending Act Servicing Rule: TILA §§ 139c(h), 129f, 129g (15 U.S.C. §§ 1639c(h), 1639f, 1639g): 12 C.F.R. § 1026.36(c); Other TILA Provisions; Setoff; Bankruptcy Special Rules for Primary Residencens: Bankruptcy Rule 3001(c); Garn-St Germain Depository Institutions Act: 12 U.S.C. § 1701j-3; Credit Practices Rule (Regulation AA): Interagency Guidance Regarding Unfair or Deceptive Credit Practices; Telephone Consumer Protection Act: 47 U.S.C. § 227; 47 C.F.R. § 64.1200; No Robosigning/Notary Practices; Minnesota Homeowner’s Bill of Rights: Minn. Stat. § 582.043; MERS and “Show Me the Note” Defenses in Minnesota.
– Heather Thayer, Amanda M. Daeges & Amy Thoreson Long
CHAPTER 27
Topics in Commercial Lending
Spectrums of Commercial Lending; Minnesota’s Credit Agreement Statute of Frauds; Regulatory Authority for Public Utility Borrowing; Corporate Formalities;
– James M. Pfau & Breia L. Schleuss
Table of Authorities
Cases; Minnesota Statutes; Code of Federal Regulations; Uniform Commercial Code; United States Code; Miscellaneous
Subject Index
Farmer Lender Mediation Act
Assignment and Composition Agreements
Attachment
Judgments and Execution
Discovery of Assets
Garnishment
Mechanic’s Liens
Replevin and Claim and Delivery
Bankruptcy
Miscellaneous Forms
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