Dean Thompson Kirby Jr's Answers

Chicago Tribune bankruptcy - repossessing equipment

In order to have a perfected purchase money security interest in goods sold, the seller must file a financing statement with the Secretary of State in the state in which the buyer is organized. In this case, I believe that this would have been Delaware. When a security interest has not been perfected, it can be avoided in bankruptcy. However, in order to avoid your security interest the Tribune Company would have to sue. Now that the Tribune Co. has filed its bankruptcy petition there...

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Can an Affirmative Defense unintentionally directly/indirectly admit parts of allegations as true?

A defendant should not omit to plead any valid affirmative defense due to a concern that an admission of liability will result. A waiver could result from the failure to plead it. That being said, it is not good practice to allege facts in pleading an affirmative defense which constitute damaging admissions. It is not necessary to make any admissions in pleading a statute of limitations defense, which goes something like this: The Complaint, and each cause of action therein, is...

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I am a judgement creditor and am preparing a "writ of execution"

A judgment debtor is "free" to move funds out of accounts if he thinks that a levy is coming. A collection attorney chasing a judgment debtor may send bank levies to several banks that are considered (based on location, past history, etc) likely. This kind of conduct is not completely without risk, however, In addition to the problems it creates with the judgment debtor's banking relationships (pointed out above), the Bankruptcy Code makes in possible to successfully object to a chapter...

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How to assign Promissory Note

Before paying any signficant amount of money for an assigment of this note, you should consult a lawyer. The following are some general issues as to which you may be concerned: 1) Is your friend willing to sign an agreement warranting that the note has not been modified, and stating what payments have already been made and what the balance of the note is? 2) Does the note bear interest at a legal (non-usurious) rate? 3) Has the maker of the note been discharged in bankruptcy? 4)...

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I am the judgment creditor. how do i impound the judgment debtors airplane

Because you are a judgment creditor and not the finance company, you do have to obtain possession of the airplane by levy, meaning the sheriff must be involved. The problem is one of timing and location. If you found the plane using online FAA searches, you may not know the location of the plane. One way to find it is using Flightaware.com, a website which tracks airplanes in real time using the flight plans filed with the FAA, if you have a tail number. There are other, expensive data...

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What course of action do I have to collect on promissory notes in excess of $90,000?

The collection process would go something like this: Your lawyer sends a written demand to the payor. Sometimes this is sufficient. Many debtors won't pay until they know that legal action is imminent. If there is no satifisfactory response, you may commence a lawsuit. In the case of a promissory note, pre-judgment attachment can bring faster results. Your question does not give enough facts to indicate whether fraud or other aggravating circumstances are involved. Your lawyer...

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In California, can a private party collect 10% interest plus accrued interest on an unpaid, unsecured promissory note from 1998?

Whether an action on a promissory note is barred by limitations can be a complex issue, and much is left out of the facts your provided. For example, under an installment note that has not been accelerated, limitations runs on each installment as it becomes due, and on the entire principal at maturity. The statute of limitations is six years as to a promissory note that is a negotiable instrument, 4 years otherwise. However, the running of limitations is tolled if, before limitations has...

How does one enforce the lien creatd by the Abstract?

If your judgment lien was recorded in proper form at a time when your judgment debtor held record title to the property (in other words, if you have a valid, perfected judgment lien), it is not necessary for you to sue the new owner of the property in order to enforce the judgment. In order to actually sell property at execution which is subject to a judgment lien, the procedure is to conduct a levy on the property (this works even for property standing in the name of the third person. In...

Can I use an Attorney to represent me in a judgement Debtors exam? I have the judgement

Your question is unclear as to whether the judgment is against you, or in your favor. In either case, however, you should definitely consult a lawyer before conducting (or appearing at) a judgment debtor's examination. If you are the judgment creditor (i.e., the judgment is in your favor) and you suspect that the judgment may be collectible in some substantial part, then hiring a lawyer may literally pay off. If you hire a lawyer, your lawyer can subpoena records to the examination, and...

Can I attach a judgment to a case?

A couple of additional remarks. I would most definitely start with filing the Judicial Council form mentioned below. However, in a class action the "Smiths" are probably not themselves named party plaintiffs. They are class members that would receive a portion of any settlement or recovery. Perhaps from the class action lawyer's trust account or perhaps from a disbursing agent. In this case it would be prudent to serve garnishment notices on the lawyer and any disbursing agent identified...