OMG! A Counterclaim`s Been Filed
Transcription
OMG! A Counterclaim`s Been Filed
Published by the International March/April 2014 Vol. 46, No. 4 Association of Commercial Collectors, Inc. http://www.commercialcollector.com OMG! A Counterclaim’s Been Filed By Stanley M. Hammerman, Esq., Hammerman & Hultgren, P.C. T he commercial collection world is a world of contingent fees. The commercial agency generally makes money when a debt is collected. If the agency is unable to complete this task alone, they often retain a law firm to collect the debt. Once again, if successful, a law firm is generally paid on a contingent-fee basis. But lo and behold, what happens when suit is filed and not only is the complaint answered, but a counterclaim is filed as well? On many occasions, the agency, attorney and original creditor are shocked that a counterclaim has been filed. Ordinarily they shouldn’t even be surprised. The seeds of a counterclaim are more often than not planted in the creditor’s file. There might be a product return, a letter complaining about service, or at least notes in the file expressing dissatisfaction. If collection calls are made by the commercial agency and/or law firm, and the debtor complains, these concerns should be addressed. Many times, creditor’s counsel can discern that he is dealing with a counterclaim-in-waiting. If that is the case, it is incumbent upon the attorney to apprise all concerned BEFORE suit is filed. If a counterclaim is anticipated and the creditor still wants to sue, both the attorney and forwarder must have a complete copy of the creditor’s file, including a legible copy of the contract signed by the debtor with any personal guaranties, copies of all outstanding invoices along with a complete payment history, and, if shipments or deliveries are involved, signed proofs of delivery. Detailed collection notes are also important in contested cases and should be carefully reviewed. In addition to documentary evidence, attorneys should know who will testify on the creditor’s behalf if the case proceeds to trial. Witnesses with personal knowledge are preferable, but are not always available. Employees change jobs or are terminated and may not be willing or able to assist. Are the witnesses still employed by the creditor? If not, why? Will the witnesses honestly cooperate if asked to testify? The answers to these questions should be known before suit is filed. If a counterclaim is filed, the issue of reasonable attorneys’ fees becomes extremely important to all concerned. Since most creditors’ rights attorneys work on a contingent-fee basis, a counterclaim is normally billed separately on an hourly basis. Too often, I have heard attorneys joyfully express their gratitude that a counterclaim has been filed because now they will be paid a fee regardless of the outcome. These are not the types of attorneys creditors want to represent them. So, what type of billing arrangement should the creditor, forwarder and attorney try to work out when a counterclaim is filed? The counterclaim defense billing should be just for that—the work actually expended in defense of the counterclaim. Needless to say, in defending the counterclaim, the work to be done often crosses over into the original complaint and it is difficult to differentiate between the original claim and the defense of the counterclaim. Many attorneys will charge a reduced hourly rate for defending the counterclaim since they are still in pursuit of the original claim on a contingent-fee basis. Other methods include billing for all time expended on the case after the counterclaim is filed at the reduced hourly rate, billing for only work directly related to the counterclaim, or accepting a flat fee for defense of the counterclaim and still continuing to pursue the original complaint on a contingent fee basis. All of these ideas are possible and it is up to the parties to determine what is in the best interests of all concerned. They need to thoroughly discuss the nature of the case and make a rough estimate as to how much time will be involved for the defense of the counterclaim. Sometimes creditors are so upset about the counterclaim that they simply “walk away” from their claim, and both continued on page 5 1 Officers PRESIDENT’S LETTER Lee VandenHeuvel President Ross, Stuart & Dawson, Inc. Auburn Hills, Mich. Spring is Here! Is Your Game Ready? Tom Brenan Vice President Altus GTS, Inc. Metairie, La. Robert P. Ingold Past President Commercial Collection Corp. of NY Tonawanda, N.Y. Greg Cohen Treasurer Caine & Weiner Woodland Hills, Calif. Directors Marc Bressler Bressler-Duyk Law Firm Edison, N.J. Michael Daugherty Synter Resource Group LLC Charleston, S.C. Paul Eisenberg Johnson, Morgan & White Boca Raton, Fla. Randy Frazee Andersen, Randall & Richards, Inc. Tucson, Ariz. Thomas Hamilton American Lawyers Quarterly Cleveland Albert Knowles A.V. Knowles & Co Ltd. Port of Spain, Trinidad Bill Mann Joseph, Mann & Creed Shaker Heights, Ohio John Yursha Commercial Recovery Group, Inc. Dover, Del. By Lee VandenHeuvel W hen you read this, it will be spring. However, as I write this, I am looking outside at six inches of fresh new snow sitting on top of 20 inches of old snow wondering how in the heck will Tiger Stadium be ready for baseball in three weeks? And where am I, you ask? I am at a rather expensive car detail shop waiting to have hardened road salt surgically removed from my new SUV carpets. You see, in Michigan, one of the rigors of living here in winter is that vehicles require a monthly spa visit to keep them salt-free and client-friendly. How does this tie into commercial collections? That’s easy. Being knee-deep in snow for the last four months got me daydreaming of warmer climates, like Miami, and how enjoyable it was to be at the convention eight weeks ago in warmer weather, surrounded by great friends and colleagues for an action-packed agenda. Along those lines, it occurred to me that what makes our conferences so successful are not just the well-thought-out agendas and the months of planning and preparation, but rather, it’s the mix of attendees who show up! The IACC is an agency-run association. However, our association would not be nearly as successful as it is without the active role and participation of our attorney, international and law list members. Period. I think it’s fair to say that we all joined the IACC and attend the conferences for pretty much the same reasons: belong to a community of commercial debt collectors, education, to learn from others, to network with each other and more importantly, to have fun doing it! I would like to recognize and thank each of our attorney, international and law list members for their role in making the IACC what it is today: the largest and, in my opinion, premier association in the commercial collection space. All three groups are represented on the board of directors and play an important leadership role in the future direction of our association. All of this boils down to one important thing: business. We’re all in this game to grow our businesses and make money. Becoming actively involved with the IACC can help you do that by cultivating relationships with agencies, attorneys and law list members who can help you in more ways than one. Agencies help other agencies, solid agencyattorney relationships lead to more dollars collected through litigation, and the law lists are critical because they know everybody and are instrumental in connecting the agencies with the attorneys. In a recent post on the ALQ forum, John Guerrini from The Guerrini Law Firm eloquently wrote: “Going to a conference once is in most cases (in my experience) pointless. You may get a lead or even a client, but to truly realize benefits from the group or association that puts on the conference, I’ve found you must (1) attend regularly and (2) become involved. That’s difficult to do if you have too much on your plate. So if you pick one or two organizations/events and focus on them, become involved with them, and make the effort, I bet you reap the rewards. Marketing in this business is tough, because we don’t get instantaneous benefits— there’s no immediate sale… it’s a long-term plan. I may meet someone at a CLLA or IACC conference but not realize a real client relationship with him/her until many years later. I treat conferences (and my involvement with any organization) as an investment. I’ve given up on some conferences/associations after it became apparent that it was not a good investment of my time/money/energy. continued on page 7 2 Member News Member Report “ Member News” is a small feature section where members can share their accomplishments, awards, promotions, company news, etc. If you have a story you would like to share, please submit it to IACC at iacc@ commercialcollector.com. Please limit the submission to 100 words or less. Note: All submissions are subject to approval by IACC staff. Industry friend and IACC member Dale Smith Sr., owner of Central Mercantile Collection Service in Minnesota and Michigan, passed away at the Cleveland Clinic on Jan. 23, 2014. Dale chose to make Brighton, Mich., his home in the early 1970s and opened CMCS in 1984. He remained a local businessman until his retirement and kept in contact with many in the industry. Our condolences to his family on his passing. Agency member Randall & Richards in Tucson, Ariz., is pleased to announce the acquisition of The Andersen Group Worldwide, LLC, of Metairie, La., effective Feb. 1, 2014. The combined entities will continue their operations under the name Andersen, Randall & Richards. Randall & Richards CEO Randy Frazee emphasized that the combined experience and talent of each company’s employees will serve to increase the expertise offered to clients. He added that all current Andersen employees will be retained, and the Louisiana office will continue operations. Tammy Osborne will serve as the vice president of marketing and client services. The Tucson headquarters will manage consolidated operations. Agency member Coface Collections North America has announced that it has rebranded to Altus as part of a global brand realignment strategy effective New Agency Members: Progressive Financial Services, Inc Tempe, Ariz. Financial Recovery Services, Inc. Edina, Minn. immediately. With the adoption of its new brand, tagline and logo, Altus has simultaneously launched its new website, http://www.TrustAltus.com. The rebranding will continue to build and foster Altus’ unparalleled dedication to offering innovative trade solutions. Altus is a Natixis company. Natixis is the corporate, investment management and financial services arm of Groupe BPCE, and the parent company of both Coface North American Insurance Company and Altus (formerly CCNA). The corporate leadership and staff will remain in position. The company adopted a new tagline, “Global Trade Solutions” and a new logo, a stylized globe. Coface, CCNA’s former parent company, will now focus solely on credit insurance. Burt and Associates Carrollton, Texas EOS Holding GmbH Hamburg, Germany Milliken & Craig (s) P/L Singapore, Singapore New Associate Members: Lippman & Reed, PLLC Tucson, Ariz. Bruce A Hatkoff, ALC Tarzana, Calif. Ciconte, Wasserman, Scerba & Kerrick, LLC Wilmington, Del. Lawcraft Plantation, Fla. Hudson Law Offices, P.C. Turnersville, N.J. Gottlieb Ostrager LLP Elmsford, N.Y. Jaffe & Asher New York Kirschenbaum & Phillips PC Farmingdale, N.Y. Barber & Bartz, PL Tulsa, Okla. Associate member Fein, Such, Kahn & Shepard, P.C. and Levitan and Frieland, P.C. are pleased to announce the merger of their legal practices to enhance services to clients in New Jersey. On Jan. 1, 2014, Philip I. Levitan, Esq. and Harry Frieland, Esq. joined Fein, Such, Kahn & Shepard, P.C. along with key members of their team from Levitan & Frieland, P.C. The merger is considered to be a great addition to the collections and creditors rights practices of Fein, Such, Kahn & Shepard, P.C. New Certified Collectors: Marc Hirschel McKenzie, Becker & Stevens, Inc. Lakeville, Conn. Gwen Santana Stevens Business Service, Inc. Lowell, Mass. Yaris Collazo, Betsaida Coronado, Angela Guinouard Lamont, Hanley & Associates, Inc. Manchester, N.H. Jim McConville Allen, Maxwell & Silver, Inc. Englewood Cliffs, N.J. Travis McMaster Commercial Collection Corp. of NY Tonawanda, N.Y. Linzi Balroop, Cindy Sooknanan A.V. Knowles & Co Ltd. Port of Spain For more information on the IACC Certified Commercial Collector Program, visit the IACC website at http://www.commercialcollector.com and click on “Certification.” New IACC Certified Agencies I n recent months, IACC has had the pleasure of approving and welcoming three new agencies to the IACC Certified Agency list. They are as follows: Mountain States Commercial Credit Management Englewood, Colo. Certified: Feb. 19, 2014 Principal: Tom Claybaugh Greenberg, Grant & Richards, Inc. Houston Certified: March 25, 2014 Principal: Garrick Glascock Euler Hermes Collections North America Louisville, Ky. Certified: March 26, 2014 Principal: Ron Stiegel Congratulations to all of these agencies! The IACC Certified Commercial Collection Agency program demonstrates an IACC member agency’s professionalism and devotion to providing quality collection services. Agency applicants are required to submit a variety of information throughout the rigorous application process, which is reviewed and evaluated by an independent auditor hired by IACC to assess the agency’s qualifications. IACC certification gives an agency a unique mark of distinction in a highly competitive market. There are currently 25 IACC certified agencies. Learn how your agency can join the ranks of IACC Certified Agencies at www.commercialcollector.com or (800) 859-9526. IACC Teleseminar Credit Applications and Related Contractual Documents May 13, 2014, 11:00 a.m. CDT Presented by:Wanda Borges, Esq., Borges & Associates LLC, Syosset, N.Y. Steve Harms; Muller, Muller, Richmond, Harms & Myers; Birmingham, Mich. Marc Lichtman, Marc S. Lichtman & Associates, Ltd., Chicago The information presented in this seminar will benefit not only you, but also your clients who use credit applications, contracts or similar documents to establish account relationships, so make them part of this! Listen from your office— an affordable way to keep up with industry trends! Agencies, invite your clients! Contact IACC to learn more. Register online today at http://www.commercialcollector.com. Highlights of the seminar include: • Why use a credit application? • Arbitration clauses in agreements with customers. • Use of forum selection and choice of law provisions in credit applications/contracts. • Security agreements (taking a lien on items you sell). • Handling checks, such as those marked “paid in full” or “in full settlement” as part of the credit application/contract. • Personal guarantees. • Permission to run credit on a customer, and other miscellaneous topics relating to a credit application or contract. • Dispute handling language in credit applications or contracts. 4 OMG! A Counterclaim’s Been Filed parties dismiss the case with prejudice. Obviously, from both the attorney and forwarder’s point of view, this is a very undesirable result. Another scenario that sometimes occurs is creditors see that the counterclaim will involve hourly fees and the possibility of liability against them, and they choose to substitute out the original creditors’ rights attorney. This can be devastating to the attorney as it is possible that she will be paid nothing for her efforts and that the substitute counsel will reap all the benefits of the work product. continued from page 1 It is very important for the creditor to anticipate the filing of a counterclaim and to communicate to both the forwarder and the attorney the likelihood that one might be filed. It is equally important that once a counterclaim is filed, a separate fee agreement between the creditor and the attorney be signed and that the parties have a frank and open discussion about where the case is going. The key to a successful result when a counterclaim is filed is open communication among the creditor, forwarder and attorney of record. If that communication occurs as it should, then no one will be surprised as the case proceeds. By thinking ahead and preparing for the likely counterclaim, the creditor, forwarder and attorney will be able to say, “Ho, hum… it’s a counterclaim.” If you would like to submit an article for publication in Scope, or have a collection story to share, you can submit those to IACC at iacc@commercialcollector.com. International Association of Commercial Collectors 2014 Annual Mid-Year Conference July 21-23, 2014 – Hilton Chicago Set Your Strategy and Network! IACC’s Mid-Year Conference is a more intimate meeting of commercial collection owners and managers. This annual event gives you the opportunity to strategize your commercial collection efforts while networking with those who know the commercial industry best. Learn from the experts: Connect with your colleagues: • • • • Around the World: International Hot Topics Meet the Attorneys • Hot Topics in the Commercial Collection Industry • And more! Register by May 26 for the best rate! Welcome & Networking Receptions Optional Special Event: Wrigley Field Rooftop Game • Optional Special Event: Chicago Architectural River Cruise • ACA Welcome Reception and Opening Expo www.commercialcollector.com – (800) 859-9526 E-mail iacc@commercialcollector.com 5 Directory of Associate Members W hen forwarding accounts, please use IACC’s Associate members! Remember to let the Associate member know you are forwarding to them because they are IACC members so they will see the value in their membership with IACC. To find complete contact information for each of these members, please visit the IACC website at http://www.commercialcollector.com and click on the “Find an IACC Member” button located on the top right of the home page. When forwarding to associate member law firms, we recommend that you designate IACC and a law list in your forwarding letter and notify the law list designated. These actions will ensure your account is covered by the law list’s bond and let the associate member know it is coming from a fellow IACC member. If you have any questions, please do not hesitate to contact the IACC staff at (952) 925-0760 or iacc@commercialcollector.com. LAW LIST MEMBERS American Lawyers Quarterly Cleveland Clearing House Quarterly Gainesville, Fla. General Bar Law Directory Cleveland Lawyers Referral Directory Cleveland The Columbia Law List Boca Raton, Fla. The Commercial Bar Easton, Md. The Forwarders List of Attorneys Princeton, N.J. The National List of Attorneys Bismarck, N.D. Wright Holmes Law List Katonah, N.Y. ASSOCIATE MEMBERS Alabama Cloud & Tidwell, LLC Birmingham Zarzaur & Schwartz, P.C. Birmingham The Pappanastos Law Firm, P.C. Montgomery Arizona Hammerman & Hultgren, P.C. Phoenix Lippman & Reed, PLLC Tucson California Law Offices of T. Britt Rudman Beverly Hills Hinsdale Law Firm Burlingame Law Offices of Martin F. Goldman Encino Alan L. Brodkin & Associates Irvine Barry S Jorgensen Law Office Newhall The Guerrini Law Firm Pasadena Law Offices of Ian A. Bardin Redondo Beach Law Offices of Gary A. Bemis Riverside Glassberg, Pollak & Associates San Francisco Sweet & Walker, A Professional Corporation San Francisco Wilks & Associates Attorneys Santa Ana The Law Offices of Jacqueline N. Anker Santa Barbara Bruce A Hatkoff, ALC Tarzana Mendelson Law Group Woodland Hills Colorado Girsh and Rottman, P.C. Denver Vinci Law Office Denver Silverman/Borenstein PLLC Englewood Miller & Cohen, P.C. Longmont Connecticut Drapp & Jaumann, LLC Bridgeport Jacobs & Rozich, LLC New Haven Delaware Ciconte, Wasserman, Scerba & Kerrick, LLC Wilmington Florida Rosenfeld Stein Batta, P.A. Aventura Yates & Schiller, P.A. Boca Raton Law Offices of Paul M. Kade Miami Sprechman & Associates Miami Talianoff Rubin & Rubin, P.A. Miami Lawcraft Plantation Gruman Worldwide Ltd. Tampa Mader Law Group Tampa Marcadis Singer PA Tampa Georgia Gonzalez Saggio & Harlan LLP Atlanta Isenberg & Hewitt, PC Atlanta Lazega & Johanson, LLC Atlanta Stokes, Lazarus & Carmichael LLP Atlanta Illinois Abrams & Abrams, P.C. Chicago Marc S. Lichtman & Associates, Ltd. Chicago Spilotro Law Group, LLC Chicago Teller, Levit & Silvertrust, P.C. Chicago William G. Schur, Attorney At Law Chicago Indiana L. Craig Turner, Attorney Indianapolis Pfenninger & Associates Indianapolis Rubin & Levin, P.C. Indianapolis Genetos Retson & Yoon LLP Merrillville Krisor & Associates South Bend Iowa Pech, Hughes & McDonald, P.C. Cedar Rapids Kentucky Lloyd & McDaniel, P.L.C. Louisville Louisiana Levin Law Offices Metairie Maryland Law Offices of Kind & Dashoff Baltimore Weinstock, Friedman & Friedman, P.A. Baltimore Business & Technology Law Group Columbia Massachusetts John Postl, P.C. Boston David I. Shorr, Attorney At Law Framingham Cohn & Dussi, LLC Woburn Michigan Muller, Muller, Richmond, Harms, Myers P.C. Birmingham Stillman Law Office Farmington Roosen, Varchetti & Olivier, PLLC Mount Clemens Minnesota Gurstel Chargo, PA Minneapolis Wagner, Falconer & Judd, LTD. Minneapolis Mississippi Rushing & Guice, PLLC Biloxi Missouri McDowell, Rice, Smith & Buchanan Kansas City Gamache & Myers, P.C. Saint Louis Evans & Green LLP Springfield Nebraska Cada, Cada, Hoffman, & Jewson Lincoln Nevada Hayes and Welsh Henderson Dubowsky Law Office Las Vegas Richard G. Hill, Ltd. Reno New Jersey Morgan, Bornstein & Morgan Cherry Hill Bressler-Duyk Law Firm Edison Law Offices of Kathleen R. Wall Manasquan Fein, Such, Kahn & Shepard, P.C. Parsippany The Saldana Law Firm Princeton Hudson Law Offices, P.C. Turnersville Law Offices of Joseph A. Molinaro, LLC Wyckoff continued on page 7 6 Directory of Associate Members New York Roe Taroff Taitz & Portman, LLP. Bohemia Meyers, Saxon & Cole Brooklyn Smith, Carroad, Levy & Wan Commack Kirschenbaum & Phillips, P.C. Farmingdale Stein & Stein Haverstraw Gutman & Gutman LLP Mineola The Terkell Law Firm, P.C. New City Frank, Frank, Goldstein & Nager P.C. New York Jaffe & Asher New York Kazlow & Kazlow New York Popper & Grafton New York Relin, Goldstein & Crane, LLP Rochester Borges & Associates, LLC Syosset Gottlieb Ostrager, LLP White Plains Murray S. Lubitz White Plains Ziegler Metzger LLP Cleveland Isaac Wiles Burkholder & Teetor LLC Columbus Wisconsin Murphy Desmond S.C. Madison Kohner, Mann & Kailas, S.C. Milwaukee Oklahoma Barber & Bartz, PL Tulsa international Pennsylvania Morris & Adelman, P.C. Bala Cynwyd Gordon & Weinberg, P.C. Conshohocken Oxford Law, LLC Levittown Jeffrey S. Wilson, Attorney At Law Philadelphia Amato Keating and Lessa, P.C. Pittsburgh Bernstein-Burkley, P.C. Pittsburgh Burton, Neil & Associates, P.C. West Chester Keifer Law Firm Wilkes Barre Tennessee The Mendelson Law Firm Memphis John B. Ingleson, Attorney At Law Murfreesboro Law Offices of Barry Gammons Nashville North Carolina Smith Debnam Narron Drake Saintsing & Myers, L.L.P. Raleigh The Sigmon Law Firm, P.A. Raleigh Ohio Kevin L. String Co., L.P.A. Chagrin Falls Immerman & Tobin Co., L.P.A. Cincinnati Slovin & Associates Co., LPA Cincinnati Thomas & Thomas Attorneys Cincinnati Alvin I. Gilmore, Attorney At Law Cleveland Weltman, Weinberg & Reis Co., LPA Cleveland President’s Letter continued from page 6 Texas Barnett and Garcia, PLLC Austin Harrell Pailet & Associates, P.C. Dallas Jameson & Dunagan, P.C. Dallas Totz, Ellison & Totz, P.C. Houston Hoffmeyer & Grass, Inc. Mesquite Utah Elggren & Peterson, P.C. Sandy Belgium Collection Attorneys Europe Antwerpen Brazil Aronis Law Office Sao Paulo Canada Franklin & Franklin Montreal Ecuador Bermeo & Bermeo Law Firm Quito, 17-12-881 India Sumesh Dhawan New Delhi Israel Gideon Koren & Co. Rehovot Isaac Eilat Law Offices Tel Aviv Italy Studio Legale Mannari Florence Netherlands Bierens Collection Attorneys Veghel Puerto Rico Nolla, Palou & Casellas, LLC Guaynabo Turkey Antroya Law Office Istanbul United Kingdom Ward Hadaway Leeds Washington Stephen A. Bernheim, Attorney At Law Edmonds IACC STAFF Executive Director Tammy Schoenberg Scope Editor Sara Bobrowski Design Manager Darla Rehorst Scope is a bi-monthly newsletter available to members of IACC. IACC is located at 4040 W. 70th St., Minneapolis, MN 55435. You may contact the IACC office at (952) 9250760 or via e-mail at iacc@ commercialcollector.com. This information is not intended as legal advice and may not be used as legal advice. It should not be used to replace the advice of your own legal counsel. Any information contained in this material is based on current research into the issues and on the specific facts involved herein. ©2014 International Association of Commercial Collectors, Inc. All Rights Reserved. continued from page 2 For others, once I realize that it’s a great investment, that group/conference becomes a ‘must do’ on my list. I hope that helps. And hope to see you at the next IACC meeting!” In closing, for our newer members who may not yet have attended an IACC conference, or veteran members who haven’t attended recently, I urge you to get in the game and be seen and heard. The next stop is Chicago this summer (July 21-23). See you there. I hope you all have a great year. And don’t forget that IACC is here to help you along the way! 7