It has long been a practice among commercial litigators and their clients to agree to a settlement with a defendant/borrower which allows a discount if settlement payments are timely made.
As “baby boomers” age, probate litigation will undoubtedly have a “boom” of its own. And
creditors will, increasingly, have to be making claims following the death of a debtor.
Beware of this trap for the unwary—Anyone taking assignment of a Judgment for
collection must be sure that all assignees of the Judgment (and any rights and
claims thereunder) had proper legal capacity at the time of each assignment.
Obtaining Debtor’s Interests in Trusts. Creditors may continue to have a very
difficult time obtaining a debtor’s interests in a trust. In November 2015, the court re-affirmed
the protections that can be afforded by a trust in FirstMerit Bank v. Diana Reese, E061480.
Estate planning and asset protection planning are both important, obviously. But
the question is, can they overlap and intertwine? Asset protection planning is best before
a client has creditors in pursuit.
The general practice lawyer faces daunting
procedural challenges in cases involving creditor’s rights.
In 2015, conflicting opinions were issued on the issue of whether an assignee can prove its prima facie case on a debt by declaration of the assignee’s custodian of records using the business records exception of Evidence Code Section 1271.
It is clear that ‘a common law action to set aside a fraudulent transfer could [now] theoretically be brought scores of years after the transfer (assuming of course, that it took that long to bring the underlying action and obtain a judgment).’
It may not be easy to find all of the right rules, but when you do, they will help lead you to the assets.