Collections: Fifth Amendment Claim Denied in Civil Action

The Hanover County Circuit Court, in the case of EVB v. Strum, denied a defendant’s motion to quash a summons for debtor’s interrogatories and subpoena duces tecum, in which the debtor asserted his Fifth Amendment right against self-incrimination.

The court ruled that there is no blanket Fifth Amendment right to refuse to answer questions in noncriminal proceedings. The privilege must be specifically claimed on a particular question in the debtor’s interrogatories, and the matter submitted to the court for its determination of the validity of the claim. Further, a defendant must assert his Fifth Amendment right in regard to each specific document in regard to a subpoena duces tecum, and the court must assess the claim as to each individual document.

Foreclosure: Deeds of Trust

It all starts with the deed of trust. The deed of trust is the primary method of acquiring a lien against real estate in Virginia. With a deed of trust, the owner of the real estate conveys legal title to a trustee, in trust, to secure the noteholder’s indebtedness. A deed of trust establishes a lien on the subject real estate upon execution by the grantor and recordation in the land records of the Circuit Court for the jurisdiction (County or City) in which the property is located. While recording the deed of trust is not essential to the validity of the deed of trust between the parties, an unrecorded deed of trust does not establish a lien on the subject real estate as to other creditors and purchasers of the grantor. An unrecorded deed of trust will not provide the beneficiary of the deed of trust with a priority position against other creditors with recorded liens, even if they are subsequent in time.

Real Estate: Using Deeds of Trust to Secure Your First, Second, Equity Line or Refinance Home Loans

In the previous editions of Creditor News we began a discussion of the benefits of using real estate to improve creditors’ positions. As I have emphasized, properly securing debts through real estate could make the difference between collecting the funds and incurring a loss. In this edition, we will review the benefits of securing your first, second, equity line or refinance home loans with a deed of trust.

Real estate liens provide important security for your debt. Since real estate is the largest investment and asset for most individuals, they will usually make every effort to pay debts secured by their real estate first. However, you need to know the chain of title in order to make an informed decision about your loan. Specifically, in what position will your lien be? Are there any “clouds” on the title? You will not know the answer to these questions without a proper title search and review.

Once you know your position you will need to examine the available equity to cover your loan. What is the value? What are the balances due on the liens ahead of your anticipated position? Beyond the business decision of determining when the equity is sufficient for your risk tolerance, in order to take advantage of the “$1.00 rule” in the bankruptcy code for chapter 13 cases (should your debtor decide to later file bankruptcy), you need to ensure that there is at least $1.00 in equity to cover the loan. You should take into consideration that property values may go down (e.g., 2008 to present).

If the deal is made and the real estate closing occurs, immediate and proper recording of your deed of trust is essential to preserve your position. If the debtor defaults, foreclosure on the property can occur. If the debtor seeks reorganization of his debt in chapter 13, you can seek full payment of the debt.

We have experienced attorneys and staff who can examine title and properly represent your interests in real estate closings.

Bankruptcy: Preferential Payments - Ordinary Course of Business

In the case of Huffman v. New Jersey Steel Corp. the United States Bankruptcy Court at Roanoke, Virginia, reviewed payments made by a debtor, a steel fabricator, for steel reinforcing rods, in regard to a complaint of preferential transfer.

The Court found as fact that the debtor fabricated "rebar" or steel reinforcing rods, for use in construction projects. The debtor obtained "rebar" from the creditor; this was the subject of this avoidance complaint. A large portion of the debt incurred by the debtor to the creditor during the preference period arose after a mistake made by the two companies, when the debtor ordered "six loads" of rebar, which the creditor interpreted as "six train-car loads", not "six truck loads". What began as a mistake was later ratified by the creditor when it continued to deal with the debtor, filled the debtor's orders and did not immediately request additional security.

The trustee and the creditor agreed that the transfers at issue were preferential as defined in the Bankruptcy Code. The trustee, however, disagreed with the creditor that the transfers were made in the ordinary course of business, and thus an exception pursuant to Bankruptcy Code §547 (b).

The trustee argued that the mistaken order was not in ordinary course because it was much larger than previous orders and resulted in the debtor's exceeding the credit limit that the creditor had established.

The creditor argued that it accepted the increase in credit and continued to ship. It further argued that it was lenient with credit terms, and presented evidence consistent with the same. The creditor also argued that it was not unusual in the industry for substantial purchases to be made at one time given the nature of the fabricating business.

The Court found that the parties entered into a transaction through a mutual mistake of fact, but that rather than rescind, the parties elected to carry out the terms of the agreement. The Court noted that such conduct was consistent with the understanding of the parties to treat the transaction as ordinary. Also, the agreement to continue was at arms length between two independent commercial entities in the marketplace. The Court found no evidence that ratification after discovery of the mistake was used to give the creditor an advantage over other creditors. The Court stated that although ratification of an agreement borne of mutual mistake of fact may not be common, but in the context of this case it was ordinary.

The Court next looked at the payments made and determined that there had been a long-standing relationship between the parties, and that payments occurred ordinarily, by check, within 54 to 67 days of invoice. Those payments made in that manner were made an exception as ordinary, the four payments made within a different time frame or by wire transfer were not.