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Dean Thompson Kirby Jr

Dean Kirby’s Answers

41 total


  • Can I legally issue a refund to my customer when the funds came from their lending company?

    We recently completed a project where we supplied a new retail business with equipment and furniture. The original order was close to $100k. The customer received an equipment loan from a third party lender for the items they purchased from us. Ho...

    Dean’s Answer

    You should NOT issue that check without permission from the lender. If the lender is really a lender and not an equipment leasing company, the equipment sold is now collateral for the lender's loan. The security agreement entered into with the lender will likely prohibit the sale of the lender's collateral without the lender's permission. If part of the sale is rescinded, the lender should get part of its money back. So your customer needs to go to its lender and ask how much the lender should be repaid in exchange for releasing that portion of the collateral. The practical answer is the same in the case of an equipment lease. A release of the lender's collateral would probably take the form of UCC-2 amendment to the lender's financing statement

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  • What is a reasonable amount of time to file, process and serve a writ for debt collection?

    It has been over three months since my final judgement was awarded and the law firm representing me still has not been able to get the sheriff's writ processed and served due to what seems to me to be procedural errors by the firm's paralegal. I ...

    Dean’s Answer

    • Selected as best answer

    We handle a great number of judgment collection matters. Depending on the jurisdiction, the delays may be due to slow or incompetent handling by court clerks. It may, or may not, be wholly or partly the fault of your lawyer. Three months is not shocking to me, based on delays we all have experienced.

    Good luck,

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  • Company has refused to pay four outstanding invoices totaling $19,723.26. What is the best way to proceed with collections?

    My company is located in Toledo OH and the client is in San Diego CA. In emails they have admitted they owe my company money but refuse to pay the full amount because of various excuses (they say the invoices are too old being one year old now and...

    Dean’s Answer

    Our law firm is located in San Diego. We do handle commercial collection matters.

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  • I got a writ of execution from bankruptcy court & levy service instructions. What form do I use for spousal affidavit?

    I looked on the sheriff's website and it says a spousal affidavit must accompany the levy service instructions if I want to garnish the debtor wife's bank account. However, the writ of execution was signed by the clerk of the bankruptcy court for ...

    Dean’s Answer

    We use California Judicial Council forms form levies to enforce federal judgments, including bankruptcy judgments, if there is no corresponding federal form. Just change the name of the court where it appears on the form. The references on the form to California statutes are still OK, because California law does govern the procedures for enforcing a federal judgment.

    Good luck!

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  • I invested several thousand dollars in a 2nd mortgage company. Now they are only paying me out of my principle.

    I am talking about $80,000 that is mine that they are paying me back at $200 a month. I tried getting out of the contract but they would not deal with me. I just want my original money returned. It was $100,000, but now has been brought down to...

    Dean’s Answer

    As the other responses mention, the facts are unclear. I assume that you may have "invested" by becoming a beneficiary (lender) under a loan, secured by a deed of trust, that was arranged by a mortgage company. In that case, it would be important to identify that deed of trust and its status. Is the borrower paying? Is the senior trust deed foreclosing?
    If instead you invested in a fund administered by the mortgage company, the questions are different and may involve the securities laws. I agree with everyone responding that you should consult a lawyer rather than attempt to get to the bottom of this on your own.
    Good luck,
    Dean

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  • What type of Lawyer do I need to collect on a personal debt?

    We loaned someone $35,000.00 to start a record label business.

    Dean’s Answer

    I have been certified as a Creditor Rights specialist. We do commercial collection. The location of the debtor may be an issue, however, as we are in San Diego.

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  • I sold my 9 unit building in Riverside to a LLC and carry a promissary note as 2nd in he amount of $260,000.00 @6% for one year

    LLC defaulted and I got nothing.The person whose name is on the LLC is refuse to take my calls or talk to me.I need a real estate attorney to help me out but I have no money I will pay out of what ever attorney collect. Please help. Naim Bhatti 8...

    Dean’s Answer

    Your collection alternatives depend upon whether the note is still secured by a trust deed. If it is, the only route available is foreclosure. Whether that is a viable alternative depends (in large part) on the value of the property, as well as your ability to cure a default under the first trust deed. If a foreclosure has taken place under the first trust deed, your remedies are the same as any other holder of a promissory note - filing a lawsuit and seeking to attach. However, if the payor under the note is a single asset LLC which has just lost the property to foreclosure, collection of the note may not be a viable option. You need to consult an attorney to decide on a course of action. Good luck.

    Dean

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  • As a landlord, how can I practically and cost effectively collect a judgement from an unlawful detainer outcome?

    Assuming the person is self employed with little income, but is believed to have well beyond the judgement amount in some financial institution (e.g. $30K-50K). Can one cost effectively discover the institution (.e.g from IRS tax records) and pos...

    Dean’s Answer

    There is no effective way to discover a judgment debtor's tax records in order to locate assets. These are confidential and not even subject to subpoena. Also, in the absence of perjury and fraud, someone with "$30-$50K in a financial instituion" would not want to file chapter 7 bankruptcy. Of course, if that money is on deposit in an IRA it would be exempt from execution to enforce your judgment and would even pass through a bankruptcy anyway.
    The primary tools available to collect a small judgment are: first, levy and garnishment based on information available; then judgment debtor examination. Often the judgment debtor had some sort of economic relationship with the judgment creditor. E.g., may have been a former tenant or customer. They may have written checks or supplied employment or credit information. If they are self-employed does the business have a website or facebook page that possibly refers to existing customers? Even the judgment debtor's residence and business address can help you to make a good guess where they bank.

    Exhaust these possible avenues, and then obtain an order for the debtot to appear and testify under oath at a judgment debtor's examination. If they don't appear and testify a warrant may be issued for their arrest.

    Also, you should record an abstract of your judgment, even if your debtor does not currently own real property.

    Good Luck!

    Dean

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  • I need to collect from 2 parties from one money judgment. Do I file attachment motions for each or combine into one motion?

    I am currently In Pro Per ... I have a money judgment against company X (265k) and VP Smith (265k + 205k). 265k is joint and severally and 205k is individually against Smith. Company X is selling their remaining assets (patents) and then will dist...

    Dean’s Answer

    The previous response was perhaps a little abrupt, but I must say that every lawyer reading your question would have the same reaction. The reasons are: (i) it seems that the judgment might be collectable; and (ii) you do not seem to have a good enough understanding of the basic toolbox for collecting the judgment in what appears to be a complex situation. There are various potential reasons why you would, or would not, be "first in line for creditors." You can "attach the proceeds via a garnishment levy with no need for a motion, etc. Even if it were the best play to obtain an assignment order, let along assignment to a receiver, your chances of getting that done don't seem great if you aren't represented by counsel.

    Good luck,

    Dean

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