NEW STATUTORY REQUIREMENTS REGARDING ASSIGNED CONSUMER DEBT DEFAULT JUDGMENTS TAKE EFFECT SEPTEMBER 1, 2013

More Admissible Evidence Will Be Required

Minn. Stat. § 548.101 will take effect on September 1, 2013 setting new requirements regarding assigned consumer debt default judgments.

A party entitled to a default judgment in conciliation court or district court shall be required to submit admissible evidence on an assigned consumer debt claim when applying to the court for entry of default judgment. Debt buyers will have to present a copy of a written contract between the debtor and original creditor, or, if no written contract exists, present admissible evidence establishing the terms of the account relationship between the debtor and original creditor. Debt buyers will also have to submit admissible evidence establishing that the defendant owes the debt that is the subject matter of the suit and provide the last four digits of the debtor’s Social Security number, if known. Admissible evidence establishing that the amount claimed to be owed is accurate will also be required. Additionally, debt buyers will be required to provide admissible evidence establishing a valid and complete chain of assignment from the original creditor to the plaintiff.

More Notice to Defendant Will Be Required

In addition to the above requirements regarding submission of admissible evidence to prove up their claims, in district court cases debt buyers will have to prove that a summons and complaint were properly served on the debtor; and provide proof that the debt buyer’s attorney mailed a notice of intent to apply for default judgment to the debtor.

Perhaps most notably, Minn. Stat. § 548.101 will require that a new form entitled “Notice of Intent to Apply for Default” be mailed to the debtor’s last known address at least 14 days before any request, application, or motion for default judgment is made with the district court. This essentially gives defendants in assigned consumer debt cases another 14 days to respond to the lawsuit after the initial 20 days given to respond to the Complaint before a default judgment can be entered in district court.

Excluding conciliation court cases and cases in which a hearing is required under court rules, the District Court will determine whether the requirements of Minn. Stat. § 548.101 have been met by a debt buyer plaintiff and may either hold a hearing before entry of default judgment or enter an administrative default judgment. In conciliation court cases, Minn. Stat. § 548.101 will require proof that a debt buyer plaintiff, or its attorney, used reasonable efforts to provide the court administrator with the correct address for the debtor.

For the full text of the new Minn. Stat. § 548.101 see HF 80, which contains other important changes of law affecting consumer debt lawsuits that will go into effect on August 1, 2013.

Submitted by: Glen Drew, VLN Resource Attorney 

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pdfdownload2 August Tip of the Month – Assigned Consumer Debt Default Judgments

Collecting on a Judgment

This Tip provides instructions on how to collect a judgment against an individual in Hennepin County.

1.  Confirm the client has a judgment upon which you can collect.

  •  If the judgment is from conciliation court, “transcribe the judgment to District Court.” Go to Room 306 of City Hall to request a transcript of your judgment. Take this document to the Civil Intake counter on the skyway level of the Hennepin County Government Center (right across the street from City Hall). There, you will also need to complete an Affidavit of Identification of Judgment Debtor and file this at the Civil Intake counter with $30.00.  Minn. Stat. §548.09. In about three weeks, you will receive notice that the client’s judgment has been recorded (“docketed”) in District Court.
  •  A District Court judgment is public record and valid for ten years from the date it was first docketed. Minn. Stat. §550.01.   A Hennepin County judgment automatically becomes a lien on the debtor’s Hennepin County abstract real property. (If the debtor’s property in Hennepin County is registered as Torrens property, you must obtain a certified copy of the judgment and file it with the County Recorder’s Office to become a lien. For more information, call 348- 3051.)  If the debtor has property in other counties, you must docket the judgment in each county. (A judgment can be renewed after 10 years.)

2. Consider whether the client and the debtor may work out an agreement for paying the debt.  If so, call and attempt to negotiate a payment arrangement.  It may take several phone calls to accomplish something amenable to both parties. You may do this at the same time as following the below process.

3.  Determine assets and income against which you may collect the debt.

  • Check phone books or internet to determine a home address and phone number.
  • If the debtor has written checks, you maybe able to locate the debtor’s bank.  If you’re aware of their landlord or auto lender, you may subpoena copies of checks the debtor has written them.
  • Is the debtor working?  Do you know where?
  • Request a copy of the debtor’s credit bureau report from an online company such as Accurint. Is there a car loan?  Mortgage?  What bank or institution?  Other judgments?  Employment indicators?  What is the debtor’s overall financial snapshot?
  • If you need help locating assets, you may also do it through the court system after 30 days of the date of docketing as follows:
    • Request from the Civil Intake counter a Request for Order for Disclosure form. (An Order for Disclosure requires the debtor to send you a Financial Disclosure Statement with income and asset information within 16 days. The Order for Disclosure will also include a Summary of Exempt Property to inform the debtor what assets and income are not subject to collection.  Minn. Stat. §550.011.
    • If the debtor does not send you the Financial Disclosure Statement within 16 days, you may file with the Civil Intake counter an Order to Show Cause ($5.00) to compel the debtor to appear at court to provide the required information.  Minn.Stat. §550.011.   This must be served upon the debtor prior to the hearing date (there is no requirement as to length of time).  If the debtor doesn’t provide the required information to the court on or before the hearing, you may complete an Affidavit for Bench Warrant.  (When the judge signs a bench warrant, it authorizes the sheriff to arrest the debtor and bring him to court. That judge will either keep the debtor in jail until the court hearing on your motion or will ask for a “bond” to assure his appearance at your hearing. If, after the bench warrant is signed, the debtor returns the required information, you must call 348-6736 to advise the court the debtor has now complied with the Order.)

4. When you know where the debtor banks or works, you may take the below enforcement actions:.

  • Go to Civil Intake counter to request that the court issue a Writ of Execution ($40). Minn. Stat. §550.04. This authorizes the Sheriff to go to the debtor’s employer or bank to collect the money owed. After you receive the Writ from the court, follow the instructions and take it to the Sheriff. (If you have questions for the Sheriff, call 348-3800). The Writ is valid for 180 days. If you don’t recover the amount you are owed, the Writ is returned to the court and another one may be issued.
  • You may also file a bank garnishment. Minn. Stat. Ch. 571.  By certified mail, send the bank the garnishment paperwork (garnishment summons, disclosure and two exemption notices) and $15.  Minn. Stat. §571.72.  Also, not later than five days after service upon the bank, mail a copy of the garnishment paperwork to the last known mailing address of the debtor. Minn. Stat. §571.72.  (Within two business days after receipt of the garnishment summons and exemption notices, the bank must also serve upon the debtor two copies of the exemption notice, by first class mail, to the last known address of the debtor.  Minn. Stat. §571.913.) A bank garnishment requires the bank to hold any monies in all of the debtor’s bank accounts on the day the garnishment arrives.  Once you receive a bank disclosure form back disclosing any monies, you can order a Writ of Execution ($40.00) to levy on those proceeds.
    • The debtor may claim that monies are exempt from garnishment by filing an Exemption Notice listing the assets and/or income not subject to collection. Minn. Stat. §571.913.  If you disagree, you may file an Objections to Exemption Claim. Minn. Stat. §571.914.  Unless the debtor files a Request for Hearing on Exemption Claim within 10 days, you may still collect upon that money. If the debtor files a Request for Hearing on Exemption Claim, a judge will schedule a hearing and determine what assets are collectible.
  • You may also file a wage garnishment.   Minn. Stat. Ch. 571. Send the debtor a Garnishment Exemption Notice and Notice of Intent to Garnish Earnings (Minn. Stat. §571.924) at least ten days prior to the service of the garnishment summons on the employer. The debtor may file the Exemption Notice (see above note) and send a copy to the employer. Serve the employer by certified mail your garnishment paperwork (garnishment summons and earnings disclosure) and $15.  Minn. Stat. §571.72.  Also serve a copy of the garnishment paperwork by mail at the last known mailing address of the debtor not later than five days after the service is made upon the garnishee. Minn. Stat. §571.72.  A wage garnishment is good for 70 days and the employer holds a portion of the debtor’s wages for that time period.  Once you receive a wage disclosure form back disclosing any monies, you can order a Writ of Execution ($40) to levy on those proceeds.

 

 

Submitted by Heidi L. Staloch, Gurstel, Staloch & Chargo, P.A.