Pursuant to the common law doctrine of caveat emptor, the buyer could not recover from the seller for defects on the property that rendered the property unfit for ordinary purposes. Caveat emptor is Latin for let the buyer beware. Both Congress and state legislatures have enacted consumer protection laws intended to limit abuses inherent in the common law approach that would have the buyer beware. A person violating the provisions of a consumer protection statute is generally liable even though there was no intention to violate the law. Liability also exists even though the breach was a single occurrence rather than a pattern of repeated conduct
Proof of Consumer Status
A consumer claiming that there has been a violation of the consumer protection statute has the burden of proving that the statutory definition of consumer has been satisfied. The word consumer refers to individuals or households that use goods and services generated within the economy.
Action by Consumer
Some consumer protection statutes provide that a consumer who is harmed by a violation of the statutes may sue the business or organization that acted improperly. The consumer may sue to recover a specified penalty or may bring an action on behalf of consumers as a class. Consumer protection statutes are often designed to rely on private litigation as an aid to enforcement of the statutory provisions. In such an action, a consumer must show that the defendant engaged in misconduct of the kind prohibited by the applicable consumer protection statute.
Advertising
Consumer protection statutes commonly prohibit fraudulent advertising. Most advertising regulations are entrusted to an administrative agency, such as the Federal Trade Commission (FTC). The FTC is authorized to issue orders to stop false or misleading advertising. Statutes prohibiting false advertising are liberally interpreted. A business is liable for false advertising when it advertises a reduced price sale of a particular item, but that item is out of stock at the time the sale begins. It is no defense to the store that the pre-sale demand was greater than usual.
Under consumer protection statutes, deception rather than fraud, is the significant element. There can be a breach of a consumer protection statute even though there is no proof that the wrongdoer intended to defraud or deceive anyone. Instead of basing the law in terms of fault of the actor, the law is concerned with the problem of the buyer who is likely to be misled. The good faith of an advertiser or the absence of intent to deceive is immaterial. The purpose of false advertising legislation is to protect the consumer rather than to examine the advertiser’s motives.
The FTC requires that an advertiser maintain a file containing the data claimed to support an advertising statement as to safety, performance, efficacy, quality, or comparative price of an advertised product. The FTC can require the advertiser to produce this material, If it is in the interest of the consumer, the FTC can make this information public, except to the extent that it contains trade secrets or material that is privileged.
Corrective Advertising
When an enterprise has made false and deceptive statements in advertising, the Federal Trade Commission may require that new advertising be made in which the former statements are contradicted and the truth stated. This corrective advertising required by the Federal Trade Commission is also called retractive advertising.
Seals of Approval
Many commodities are sold or advertised with a sticker or tag stating that the article has been approved or is guaranteed by some association or organization. Ordinarily, when a product is sold in such a way, it will in fact have been approved by some testing laboratory and will probably have proven adequate to meet ordinary consumer needs. Selling with a seal of approval of a third person makes, in effect, a guarantee that the product has been so approved. A seller is liable if the product was, in fact, not approved.
Labeling
Closely related to the regulation of advertising is the regulation of labeling products. Various federal statutes are designed to give the consumer accurate information about the product, while others require warnings about dangers of use or misuse. Consumer protection regulations prohibit the use in the labeling of products with such terms as jumbo or giant which tend to exaggerate and mislead.
Selling Methods
Consumer protection statutes prohibit the use of improper and deceptive selling methods. These statutes are liberally construed to protect consumers from improper practices.
Deceptive Practices
Consumer protection statutes and deceptive trade practice acts are violated when the statements or the business methods of the defendant are deceptive. It is not necessary to prove that the defendant was guilty of fraud. It is immaterial that the defendant who misrepresented the facts did not intentionally do so.
Disclosure of Transaction Terms
Contract on Two Sides
To be sure that the consumer sees disclosures required by federal law, special provision is made for the case when the terms of the transaction are printed on both the front and back of a sheet or contract. In such a situation, both sides of the sheet must carry the warning: NOTICE: see other side for important information. Also, the page must be signed at the end of the second side.
Particular Sales and Leases
The Motor Vehicle Information and Cost Savings Act requires a dealer to disclose to the buyer various elements in the cost of an automobile. The act prohibits selling an automobile without informing the buyer that the odometer has been reset below the true mileage. A buyer who is caused actual loss by odometer fraud may recover from the seller three times the actual loss or $1,500, whichever is greater. There is a breach of this statute when the seller has knowledge that the odometer has turned at 100,000 miles but the seller then states that the mileage is 20,000 miles instead of 120,000. The Consumer Leasing Act of 1976 requires that persons leasing automobiles and other durable goods to consumers make a full disclosure to the consumer of the details of the transaction.
Although the statute imposes liability only when the seller knowingly violates the statute, it is not necessary to prove actual knowledge. For example, an experienced auto dealer cannot claim lack of knowledge that the odometer was false when that conclusion was reasonably apparent from the condition of the car.
Referral Sales
The technique of giving the buyer a price reduction for customers referred to the seller is theoretically lawful. In effect, it is merely paying the buyer a commission for the promotion of other sales. In actual practice, however, the referral sales technique is often accompanied by fraud or by exorbitant pricing. Therefore, consumer protection laws condemn referral selling in various ways. As a result, the referral system of selling has been condemned as unconscionable under the Uniform Commercial Code (UCC), and is expressly prohibited by the Uniform Consumer Credit Code (UCCC) which has been adopted by a number of states.
Contract with Consumers
Contracts with consumers are affected by consumer protection legislation in various ways.
Form of Contract
Consumer protection laws commonly regulate the form of the contract, requiring that payments under the contract to be itemized and allocation to such items as principal, interest, and insurance are to be clearly indicated; Generally, certain portions of the contract or all of the contract must be printed in type of a certain size, and a copy must be furnished to the buyer. Such statutory requirements are more demanding than the statute of frauds section of the UCC. It is frequently provided that the copy furnished the consumer must be completely filled in.
Contract Terms
Consumer protection legislation does not ordinarily affect the right of the parties to make a contract on whatever terms they choose. It is customary, however, to prohibit the use of certain clauses that are believed to unconscionable to the debtor or that have too great a potential for abuse by a creditor.
Acceleration Clauses
An acceleration clause is a contractual provision which allows the holder to declare the remaining balance due and payable immediately upon the occurrence of a default in the obligation. Parties to a credit transaction may agree that payment should be made in installments but that if there is a default with respect to any installment, the creditor may declare the entire balance due at once. This cancels or destroys the schedule for payments by making the entire balance immediately due. Such acceleration of the debt can cause the debtor great hardship. Because of this, some statutes limit or prohibit the use of acceleration clauses.
Price Gouging
Some consumer protection statutes are aimed at preventing price gouging with respect to goods or services for which the demand is abnormally greater than the supply. The New York statute provides: “During any abnormal disruption of the market for consumer goods and services vital and necessary for the health, safety, and welfare of consumers, resulting from stress of weather, convulsion of nature, failure or short age of electric power or other source of energy . . . no merchant shall sell or offer to sell any such consumer goods or services for an amount which represents an unconscionably excessive price.” Consumer goods and services are defined as “those used, bought, or rendered primarily for personal, family, or household purposes.” Such a statute protects, for example, purchasers of electric generators for home use during a hurricane-caused blackout.
Credit Cards
The credit card permits the cardholder to buy on the credit or reputation of the issuer of the card.
Unsolicited Credit Cards
The unsolicited distribution of credit cards to persons who have not applied for them is prohibited.
Surcharge Prohibited
According to some consumer protection statutes, a seller cannot add any charge to the purchase price because the buyer uses a credit card instead of paying with cash or a check.
Unauthorized Fee
A card holder is normally not liable for more than $50 for the unauthorized use of a credit card.
Payments
Consumer legislation may provide that when a consumer makes a payment on an open charge account, the payment must be applied toward payment of the earliest charges. The result is that, should there be a default at a later date, any right of repossession of the creditor is limited to the later, unpaid items.
Product Safety
The health and well-being of consumers is protected by a variety of statutes and rules of laws. Most states have laws governing the manufacture of various products and establishing product safety standards. The federal Consumer Product Safety Act provides for research and the setting of uniform standards for products in order to reduce health hazards. This act also establishes civil and criminal penalties for the distribution of unsafe products. It also recognizes the right of a person to sue for money damages and to obtain an injunction against the distribution of unsafe products. The Act also creates a Consumer Product Safety Commission to administer it. The federal Anti-Tampering Act makes it a federal crime to tamper with consumer products.
Credit, Collection and Billing Methods
The Equal Credit Opportunity Act (ECOA) was passed in order to make sure that consumer credit was awarded based on an applicant’s credit worthiness rather than the applicant’s age, sex, color, religion, or national origin. For example, a lender cannot consider the following when making a loan: race; marital status; receipt of public assistance income; receipt of alimony or child support; or future plans for children. Spouses have rights to individual credit application and consideration. The other spouses income does not have to be disclosed unless the applicant is relying on that income to qualify for credit.
The penalties for violating the ECOA are the actual damages and the possibility of punitive damages of up to $10,000. If there is a pattern or practice of violations, a class action may be filed which can result in damages up to $500,000 or 1% of the net assets of the defendant, whichever is less.
The Truth-in-Lending Act (TILA) is part of the Federal Consumer Credit Protection Act. The purpose of the TILA is to make full disclosure to debtors of what they are being charged for the credit they are receiving. The Act merely asks lenders to be honest to the debtors and not cover up what they are paying for the credit. Regulation Z is a federal regulation prepared by the Federal Reserve Board to carry out the details of the Act.
TILA applies to consumer credit transactions. Consumer credit is credit for personal or household use and not commercial use. TILA applies to both open end and closed end transactions. Examples of open -end transactions are credit cards, lines of credit, and revolving charge accounts. Closed-end transactions involve a fixed amount to be paid back over a period of time such as a note or a retail installment contract. Open-end disclosure requirements include: finance charges (including interest), the dates that bills will be sent and what, if any, security interest is being taken. Bills must contain the following information:
- balance from last statement;
- payments and credits;
- new charges made since last statement;
- finance charges on unpaid balance;
- the billing period covered by the bill;
- the time period in which payment can be made in order to avoid a finance charge (e.g., 30 days); and
- information regarding billing errors — what to do and where to inquire about billing errors.
When an organization solicits consumer to use its credit card, the solicitation must include the following disclosures:
- fees for issuing the card;
- APR for the card;
- minimum or fixed finance charges;
- any transaction charges;
- grace periods (if any);
- how the daily balance is computed;
- when payments will be due;
- what the late payment will be; and
- any charges that will be assessed for going over the credit limit.
Disclosures regarding closed-end credit must include:
- amount being financed;
- finance charges
- annual percentage rate;
- number of payments and when due;
- total cost of financing (price of goods plus all finance charges);
- any penalties for prepayment or late payment;
- any security interest or lien in the goods sold or used as collateral; and
- any credit insurance cost.
In advertisements that include part of the credit terms, all the credit terms must be disclosed. If payments are disclosed, the creditor must disclose the annual percentage rate (APR), the down payment, and the number of payments.
Regulation Z gives a three-day cooling-off period for certain credit contracts. This cooling-off period applies in a credit situation when the debtor’s home is given as security for the loan or a home solicitation sale is involved. The Home Equity Loan Consumer Protection Act of 1988 applies to home equity loans and provides for additional disclosures, e.g., that the debtor can lose his home in the event of a default.
The penalties for violation of the TILA include an amount equal to two times the amount of the finance charges with a minimum recovery of $100 and a maximum recovery of $1000 plus any punitive damages. In a class action law suit the maximum amount of damages is $500,000 or 1% of the creditor’s net worth, whichever is less.
The Fair Credit Billing Act requires monthly statements on open-end credit transactions. The bill must contain an address for the debtor to write in order to report errors in the bill. Any such notification must be sent within 60 days of the bill’s receipt. The creditor then has thirty days in which to acknowledge the notification and ninety days to take action. The debtor does not have to pay the protested amount during this period of time. Once the matter is resolved, the debtor must pay the correct amount owed. If the creditor does not comply with the time limits of the Act the debtor does not have to pay the disputed amount, even if it is correct.
The Fair Credit Reporting Act regulates the use of information on a consumer’s personal and financial condition. The most typical transaction which this Act would cover would be where a person applies for a personal loan or other consumer credit. Consumer credit is credit for personal, family, or household use, and not for business or commercial transactions. Also, this Act can apply when a person applies for a job or even a policy of insurance when certain investigations are made of the applicant.
The purpose of the Act is to insure that consumer information obtained and used is done in such a way as to insure its confidentiality, accuracy, relevancy and proper utilization. Under the Act, consumer reports are communications in any form by which furnishes information on consumers to potential creditors, insurers or employers.
Upon request, a credit bureau must tell a consumer the names and addresses of persons to whom it has made a credit report on that consumer during the previous six months. It also must tell, when requested, what employers were given such a report during the previous two years.
Some information obtained by credit reporting bureaus is based on statements made by persons, such as neighbors who were interviewed by the bureau’s investigator. Needless to say, these statements are not always correct and are sometimes the result of gossip. In any event, such statements may go on the records of the bureau without further verification and may be furnished to a client of the bureau who will regard the statements as accurate. A person has the limited right to request an agency to disclose the nature and substance of the information possessed by the bureau to see if the information is accurate. If the person claims that the information of the bureau is erroneous, the bureau must take steps within a reasonable time to determine the accuracy of the disputed items. If no correction is made, the debtor can write a 100 word statement of clarification which will be included in future credit reports, even it the agency disagrees with clarification.
The FCRA requires that a credit reporting agency follow reasonable procedures to assure accuracy of the information it gathers. Adverse information obtained by investigation cannot be given to a client after three months unless it is verified to determine that it is still valid.
Credit reporting bureaus are not permitted to disclose information to persons not having a legitimate use for this information. It is a federal crime to obtain or to furnish a credit report for an improper purpose. Under the FCRA, agencies can only disclose information to the following:
- a debtor who asks for his own report;
- a creditor who has the debtor’s signed application for credit;
- a potential employer; and
- a court pursuant to a subpoena.
The Consumer Leasing Act is an amendment to TILA and provides disclosure protection for consumers who lease goods. Basically, these disclosures fall into three categories:
- how much is paid by the consumer over the life of the lease;
- how much, if any, is owed by the consumer at the end of the lease; and
- whether or not the lease can be terminated.
The Fair Debt Collection Practices Act (FDCPA) prohibits harassment or abuse in collecting a debt such as threatening violence, use of obscene or profane language, publishing lists of debtors who refuse to pay debts, or even harassing a debtor by repeatedly calling the debtor on the phone. Also, certain false or misleading representations are forbidden, such as representing that the debt collector is associated with the state or federal government, or stating that the debtor will go to jail if he does not pay the debt. This Act also sets out strict rules regarding communicating with the debtor.
The FDCPA applies only to those who regularly engage in the business of collecting debts for others — primarily to collection agencies. The Act does not apply when a creditor attempts to collect debts owed to it by directly contacting the debtors. It applies only to the collection of consumer debts and does not apply to the collection of commercial debts. Consumer debts are debts for personal, home, or family purposes.
When a collector contacts a debtor, if the debtor asks for verification of the debt, the collector must provide this verification in writing. The debtor must include the amount of the debt, the name of the creditor, and the debtor’s right to dispute the debt.
The collector is restricted in the type of contact he can make with the debtor. He can’t contact the debtor before 8:00 a.m. or after 9:00 p.m. He can contact the debtor at home, but cannot contact the debtor at the debtor’s club or church or at a school meeting of some sort. The debtor cannot be contacted at work if his employer objects. If the debtor tells the creditor the name of his attorney, any future contacts must be made with the attorney and not with the debtor. The debtor can call off the collection contacts at any time. The collector would then have to use other collection means like filing suit.
The Act prohibits contacting other people about the debtors debts, with the exception of the debtor’s spouse and parents. Another exception is that third parties can be contacted in order to get the debtor’s address, phone number and place of employment. Contact with the debtor by postcard is prohibited because someone other than the debtor may see the contents of the postcard.
When a collection agency violates the Act, it is liable to the debtor for damages, and it is no defense that the debtor in fact owed the money that the agency was seeking to collect. Debtors can collect up to $1,000 in actual damages in addition to actual damages. Also the Federal Trade Commission can get a cease and desist order to stop any unlawful practices.
If a creditor files a civil suit for the debt and gets a judgment, he will have to execute on that judgment unless the defendant voluntarily pays the judgment. One way of execution is garnishment where a judgment creditor serves a writ of garnishment on the debtor’s employer. The employer is then required to withhold part of the debtor’s wages for payment to the creditor in satisfaction of the judgment. The Consumer Credit Protection Act limits the amount that can be garnished to 25% of the debtor’s net wages. A judgment creditor can also garnish a debtor’s bank account or an account receivable due to the debtor. Basically, any debt due to the debtor can be garnished.
Privacy and Information Law — Protect Your Online Information and Avoid Being
Scammed — OnGuardOnline.gov provides practical tips from the federal government and the technology industry to help you be on guard against Internet fraud, secure your computer, and protect your personal information. The Federal Trade Commission (FTC) maintains OnGuardOnline.gov. Much of the following information in this section came from the OnGuardOnline.gov website.
Protect your personal information.
To an identity thief, your personal information can provide instant access to your financial accounts, your credit record, and other assets. Anyone can be a victim of identity theft. There are almost 10 million victims every year. Some cases start when online data is stolen. You can go to www.ftc.gov/idtheft to learn what to do if your identity is stolen. When it comes to crimes like identity theft, you can’t entirely control whether you will become a victim. But following these tips can help minimize your risk while you’re online:
If you’re asked for your personal information (e.g., your name, email or home address, phone number, account numbers, or Social Security number) find out how it’s going to be used and how it will be protected before you share it. If you have children, teach them to not give out your last name, your home address, or your phone number on the Internet.
If you get an email or pop-up message asking for personal information, do not reply or click on the link in the message. The safest course of action is not to respond to requests for your personal or financial information. If you believe there may be a need for such information by a company with whom you have an account or placed an order, contact that company directly in a way you know to be genuine. In any case, do not send your personal information via email because email is not a secure transmission method.
If you are shopping online, do not provide your personal or financial information through a company’s website until you have checked for indicators that the site is secure, like a lock icon on the browser’s status bar or a website URL that begins “https:” (the “s” stands for “secure”). Unfortunately, no indicator is foolproof; some scammers have forged security icons.
Read website privacy policies. They should explain what personal information the website collects, how the information is used, and whether it is provided to third parties. The privacy policy also should tell you whether you have the right to see what information the website has about you and what security measures the company takes to protect your information. If you do not see a privacy policy, or can not understand it, consider doing business elsewhere.
Know with whom you’re dealing.
It is remarkably simple for online scammers to impersonate a legitimate business, so you need to know whom you’re dealing with. If you’re shopping online, check out the seller before you buy. A legitimate business or individual seller should give you a physical address and a working telephone number at which they can be contacted in case you have problems.
Phishing is the act of sending an e-mail to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft. The e-mail directs the user to visit a Website where they are asked to update personal information, such as passwords and credit card, social security, and bank account numbers, that the legitimate organization already has. The Web site, however, is bogus and set up only to steal the user’s information.
For example, in 2003 there was a phishing scam in which users received e-mails supposedly from eBay claiming that the user’s account was about to be suspended unless he clicked on the provided link and updated the credit card information that the genuine eBay already had. Because it is relatively simple to make a website look like a legitimate organizations site by mimicking the HTML code, the scam counted on people being tricked into thinking they were actually being contacted by eBay and were subsequently going to eBay’s site to update their account information. By spamming large groups of people, the “phisher” counted on the e-mail being read by a percentage of people who actually had listed credit card numbers with eBay legitimately.
Phishers send spam or pop-up messages claiming to be from a business or organization that you might deal with, for example, an Internet service provider (ISP), bank, online payment service, or even a government agency. Again, the message usually says that you need to “update” or “validate” your account information. It might threaten some dire consequence if you do not respond. The message directs you to a website that looks just like a legitimate organization’s, but is not. The purpose of the bogus site is to trick you into divulging your personal information so the operators can steal your identity and run up bills or commit crimes in your name. Do not take the bait. Never reply to or click on links in email or pop-ups that ask for personal information. Legitimate companies do not ask for this information via email. If you are directed to a website to update your information, verify that the site is legitimate by calling the company directly, using contact information from your account statements.
Every day, millions of computer users share files online. File-sharing can give people access to a wealth of information, including music, games, and software. You download special software that connects your computer to an informal network of other computers running the same software. Millions of users could be connected to each other through this software at one time. Often the software is free and easily accessible. But file-sharing can have a number of risks. If you do not check the proper settings, you could allow access not just to the files you intend to share, but also to other information on your hard drive, like your tax returns, email messages, medical records, photos, or other personal documents. If you decide to use file-sharing software, set it up very carefully. Take the time to read the End User Licensing Agreement to be sure you understand and are willing to tolerate the side effects of any free downloads.
Many free downloads come with potentially undesirable side effects. Spyware is software installed without your knowledge or consent that adversely affects your ability to use your computer, sometimes by monitoring or controlling how you use it. To avoid spyware, resist the urge to install any software unless you know exactly what it is. Your anti-virus software may include anti-spyware capability that you can activate, but if it does not, you can install separate anti-spyware software, and then use it regularly to scan for and delete any spyware programs that may sneak onto your computer.
Use anti-spyware software, as well as a firewall, and update them all regularly.
Firewalls help keep hackers from using your computer to send out your personal information without your permission. While anti-virus software scans incoming email and files, a firewall is like a guard, watching for outside attempts to access your system and blocking communications to and from sources you don’t permit. Some operating systems and hardware devices come with a built-in firewall that may be shipped in the “off” mode. Make sure you turn it on. For your firewall to be effective, it needs to be set up properly and updated regularly.
If your operating system does not include a firewall, get a separate software firewall that runs in the background while you work, or install a hardware firewall — an external device that includes firewall software.
Be sure to set up your operating system and Web browser software properly, and update them regularly.
Hackers also take advantage of Web browsers (like Internet Explorer or Netscape) and operating system software (like Windows or Linux) that are unsecured. Lessen your risk by changing the settings in your browser or operating system and increasing your online security. Check the “Tools” or “Options” menus for built-in security features. If you need help understanding your choices, use your “Help” function.
Your operating system also may offer free software patches that close holes in the system that hackers could exploit. In fact, some common operating systems can be set to automatically retrieve and install patches for you. If your system does not do this, bookmark the website for your system’s manufacturer so you can regularly visit and update your system with defenses against the latest attacks. Updating can be as simple as one click. Your email software may help you avoid viruses by giving you the ability to filter certain types of spam.
If you are not using your computer for an extended period, turn it off or unplug it from the phone or cable line. When it’s off, the computer doesn’t send or receive information from the Internet and isn’t vulnerable to hackers.
Protect your passwords.
Keep your passwords in a secure place, and out of plain view. Don’t share your passwords on the Internet, over email, or on the phone. Your Internet Service Provider (ISP) should never ask for your password. In addition, hackers may try to figure out your passwords to gain access to your computer. You can make it tougher for them by:
- Using passwords that have at least eight characters and include numbers or
- Avoiding common words: some hackers use programs that can try every word in the dictionary.
- Not using your personal information, your login name, or adjacent keys on the keyboard as passwords.
- Changing your passwords regularly (at a minimum, every 90 days).
- Not using the same password for each online account you access.
- Internet fraud – If a scammer takes advantage of you through an Internet auction, when you’re shopping online, or in any other way, report it to the Federal Trade Commission, at gov. The FTC enters Internet, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.
Deceptive Spam – If you get deceptive spam, including email phishing for your information, forward it to [email protected]. Be sure to include the full header of the email, including all routing information. You also may report phishing email to [email protected]. The Anti-Phishing Working Group, a consortium of ISPs, security vendors, financial institutions and law enforcement agencies, uses these reports to fight phishing.
Divulged Personal Information — if you believe you have mistakenly given your personal information to a fraudster, file a complaint at ftc.gov, and then visit the Federal Trade Commission’s Identity Theft website at www.ftc.gov/idtheft to learn how to minimize your risk of damage from a potential theft of your identity.
Debtor Creditor Relations
Mechanic’s liens are fairly simple to understand (and may even be within the experience of some students). Generally, a lienholder must file written notice of the lien within 60 to 120 days from the last date on which work was provided.
Artisan’s Lien
An artisan’s lien, too, is a fairly simple device. Normally, the lienholder must have retained possession of the property and have agreed to provide services on a cash, not a credit, basis. To protect a lien and surrender possession simultaneously, a lienholder must record notice of the lien under state lien law. Under an artisan’s lien, a creditor can recover payment from a debtor for labor and materials furnished in the repair of personal property.
Judicial Liens
These liens help ensure that a judgment is collectible. Judicial lien is a lien obtained by judgment, levy, sequestration or other legal or equitable process or proceeding. If a court finds that a debtor owes money to a creditor and the judgment remains unsatisfied, the creditor can ask the court to impose a lien on specific property owned and possessed by the debtor. After imposing the lien, the court issues a writ directing the local sheriff to seize the property, sell it and turn over the proceeds to the creditor.
Under Bankruptcy proceedings, a creditor can obtain a judicial lien by filing a final judgment issued against a debtor through a lawsuit filed in state court. A certified copy of a final judgment may be filed in the county in which the debtor owns real property. A bankruptcy debtor can file a motion to avoid Judicial Lien. A Motion to avoid Judicial Lien can be filed by a debtor in either a chapter 7 or chapter 13 bankruptcy proceeding. In a Chapter 7 proceeding, an Order Avoiding Judicial Lien will remove the debt totally.
Writ of Attachment
Prejudgment attachment requires notice to the debtor and an opportunity to be heard (under the Fourteenth Amendment’s due process clause). The creditor must have an enforceable right to payment, file an affidavit, and post a bond. The court issues a writ of attachment. The sheriff seizes the debtor’s property, which can be sold to satisfy the judgment.
Writ of Execution
If a debtor does not or cannot pay an adverse judgment, the creditor can go back to court for a writ of execution. The sheriff seizes the debtor’s property, which can be sold to satisfy the judgment. Before the property is sold, the debtor can pay the judgment and redeem the property.
Attachment is a court-ordered seizure and taking into custody of property prior to the securing of a judgment for a past-due debt. To use attachment as a remedy, a creditor (1) files with a court an affidavit, stating that a debtor is in default and the grounds on which attachment is sought, and (2) posts a bond to cover costs, the value of the loss of use of the good by the debtor, and the value of the property. The court directs the sheriff or other officer to seize nonexempt property, which can be sold to satisfy a judgment. A writ of execution is a court order directing a sheriff to seize and sell any of the debtor’s nonexempt real or personal property within the court’s jurisdiction. This is used when a debtor will not or cannot pay a judgment.
Writ of Execution. If a creditor is successful in a suit against a debtor, the court awards the creditor a judgment against the debtor (usually for the amount of the debt plus interest and costs incurred in obtaining the judgment). If the debtor does not pay the judgment, the creditor can go back to court and obtain a writ of execution under which some of the debtor’s property can be seized and sold.
Garnishment
Garnishment is a collection remedy directed at a debtor’s property or rights held by a third person (typically, an employer or a bank). Garnishment is a state law remedy and the procedures differ from state to state. In some states, a separate order may be required for, for example, each pay period to garnish wages.
Laws Limiting the Amount of Wages Subject to Garnishment
Federal and state laws limit the amount that can be garnished from wages. State laws often provide for larger exemptions, and state and federal statutes can be applied together to reduce the amount that may be garnished.
Garnishment occurs when a creditor obtains a court order to collect a debt by seizing property of the debtor held by a third party (such as a paycheck held by an employer or a checking account held by a bank). Garnishment is used in some cases in which debts are not paid.
A Composition with Creditors is an agreement among several creditors of a debtor, usually a business. Usually, the agreement involves paying a lessened amount over a period of time.
Foreclosure is the procedure by which a party who has loaned money secured by a mortgage or deed of trust on real property (or has an unpaid judgment), forces the sale of the real property to recover the money due, unpaid interest, plus the costs of foreclosure, after the debtor fails to make payment. The lender must serve a notice of default on the debtor after a certain time period from when the payment becomes past due, which varies by state. The notice will give the borrower a certain time period and amount necessary to be paid in order to “cure” the default and avoid foreclosure. If the delinquency and costs of foreclosure are not paid within this time, then the lender (or the trustee in states using deeds of trust) will set a foreclosure date for selling the property at public sale. The property may be redeemed by the borrower by paying all delinquencies and costs, up to the time of sale and in some state, for a period after sale.
There is also judicial foreclosure which is used in several states with the mortgage system or in deed of trust. This procedure is used when the amount due is greater than the equity value of the real property, and the lender wishes to get a deficiency judgment for the amount still due after sale. However, some states give deficiency judgments
Suretyship and Guaranty
The distinction between the two statuses has been abolished in some states.
Surety
A surety is primarily liable: the creditor can hold the surety responsible for payment of the debt when the debt is due, without first exhausting all remedies against the debtor. A surety agreement does not have to be in writing to be enforceable (but it usually is).
Guaranty
A guarantor is secondarily liable: the principal must first default. The contract between guarantor and creditor must be in writing to be enforceable unless the “main purpose” exception applies.
Defenses of the Surety and the Guarantor
Actions Releasing the Surety
Any material change in the contract between principal and creditor without prior consent of the surety (or guarantor) may discharge the surety, even if the change does not affect the risk. If the debt is paid, or tender of payment is made and rejected, the surety is discharged.
Defenses of the Principal Debtor
A surety can use any defenses available to the principal (except personal defenses). This is the most important concept in suretyship, because most defenses available to a surety are those of the principal.
Rights of the Surety and the Guarantor
Laws Assisting Debtors
Each state allows a homestead exemption, which permits a debtor to retain all or part of the family home free from the claims of unsecured creditors or trustees in bankruptcy. Personal property that is most often exempt (up to at least a specified dollar amount) includes:
- Household furniture.
- Clothing and certain personal possessions.
- A vehicle (or vehicles) for transportation.
- Certain animals.
- Equipment the debtor uses in a business or trade.
