Abstract
As stated in the previous chapters, creditors are skeptical about the efficacy of the judicial process when it comes to collection of debts, given the lengthy procedures, high expenses incurred, inherent risks and uncertainties. In such circumstances, the creditors will not resort to litigation until all self-help remedies (where available) and nonjudicial collection efforts have been exhausted without result. Having analyzed self-help repossession and administrative receivership in Chap. 4, the book now turns to factoring and nonjudicial debt collection by debt collection agencies. As it will be shown, factoring is a sale or purchase of account receivables for the purpose of collection, although account receivables may also be used as collateral.
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Notes
- 1.
King and Cook (1996), p. 7.
- 2.
The terminology used in the UK for “account receivables” or “receivables” is “book debts.” Book debts, in their turn, belong to the species of property called choses in action, which have been defined as property rights that can be enforced only by action and not by taking possession. See: Biscoe (1975), p. 95. For a detailed discussion concerning whether “receivables” is the exact equivalent of “book debts”: Johnston (2008), pp. 147–148; and Beale et al. (2012), p. 273. Since the benchmark of this work is the US, the terminology employed for the purposes of this chapter will be the American one.
- 3.
UCC, Section 9-109 (d) (5) UCC, actually states that Article 9 will not cover assignments of accounts made for the purpose of collection only. Hence, abusive debt collection will be sanctioned under the FDCPA and not by provisions of the UCC. However, according to Official Comment 5 to Section 9-109, Article 9 will cover both transactions—sale of receivables (factoring) and assignment of receivables (invoice discounting)—but mainly with respect to perfection and priority rules. Laws (2009), p. 875.
- 4.
In the UK, invoice discounting is in fact considered a form of factoring and is reported together with factoring for statistics purposes. Bickers (2011), p. 147.
- 5.
UK terminology refers to the obligor as “client.” Same term is used in the decisions of the Court of Justice of the EU (ECJ). However, since the benchmark of this book is the US, the terminology adopted is the American one.
- 6.
Biscoe (1975), p. 3. This definition is consistent with the more restrictive definition of factoring accepted in the US: “a continuing arrangement between a factoring concern and a seller of goods or services on open accounts, pursuant to which the factor performs the following services with respect to the accounts receivable arising from sales of such goods and services: purchases all accounts receivable for immediate cash, maintains the ledgers and performs other book-keeping duties, collects the accounts receivable, assumes the losses which may arise from the customer’s financial inability to pay.” Ruddy et al. (2006), pp. 1–2.
- 7.
- 8.
Hiller (1939), p. 305.
- 9.
- 10.
Hiller (1939), p. 310.
- 11.
Hiller (1939), p. 310. The spectacular growth of factoring in that period may be explained by two causes: “the need for credit advice and credit warranty to manufacturers who do not have the organization to handle their own credit problems efficiently and the need for working capital which arises at one time or another in the conduct of most business.” See: Silverman (1948), p. 595. For the purposes of this work, the focus will be on the first function.
- 12.
Soufani (2002), p. 21.
- 13.
Silverman (1948), p. 593.
- 14.
Silverman (1948), p. 594.
- 15.
- 16.
Silverman (1948), p. 596.
- 17.
Soufani (2002), p. 23.
- 18.
Ruddy et al. (2006), p. 2.
- 19.
Biscoe (1975), p. 29.
- 20.
Biscoe (1975), p. 29.
- 21.
“Another subsidiary of the second defendants are (X) Ltd, who carry on the business nowadays confusingly called factoring,” Hamilton finance Co., Ltd v. Coverley, Westray, Walbaum and Tosetti, Ltd, and Portland Finance Co. Ltd., [1969] I Lloyds Rep. 53, at p. 58, cited by Biscoe (1975), p. 3.
- 22.
West v. Costen, United States District Court, Western District of Virginia, 558 F. Supp. 564 (1983), cited by King and Cook (1996), pp. 8–24. The mentioned case was brought for alleged violations of the FDCPA, and among the defendants was Multi-service Factors, Inc (MSF), a corporation that mostly attempted to collect dishonored checks from both merchants and retailers (p. 9). Although the scheme in place and the services offered would not fall entirely under the classic definition of factoring, the corporation was held to be a debt collector under the FDCPA, due to the activities of its own collection agents (pp. 11–12). However, absent collections from consumers, it is doubtful that the same conclusion would be reached. For the moment, it is worth emphasizing that a factoring company might collect consumer debt, and so it will fall within the requirements of FDCPA with respect to its collection practices. In the UK, block discounting is a form of assignment that resembles nonnotification, recourse factoring (meaning that the client assumes the risk of nonpayment by the debtor) under a facultative agreement, the main difference being that the installments are due from consumers. Beale et al. (2012), pp. 294–295.
- 23.
UCC, Section 9-109 (d) (5).
- 24.
- 25.
For example, in the UK, it was stated that the provisions of CCA 1974 would have been applicable to the factor’s agreement with his client and to his relations with debtors. Three points had to be borne in mind: that the credit, which did not exceed 25,000 pounds, was provided to an individual (which included partnerships); that the term creditor included an assignee; and that the act did not regulate a consumer credit agreement for fixed sum credit under which the number of payments to be made by the debtor did not exceed four and those payments were to be made within 12 months of the date of the agreement. Or these three points were applicable to virtually all debts, which were the subject of an agreement for the factoring of trade debts. Therefore, in case the factor provides his services for partnerships or sole traders and his recourse is framed as a repurchase, it would have been possible (although deemed unlikely) to have the agreement considered a “personal credit agreement,” which would have fallen within the scope of CCA 1974. Despite theoretical debates, a factor would have to be licensed as a debt collector under UK law, even if collection services are only ancillary. See: Ruddy et al. (2006), p. 248.
- 26.
Finanzamt Groß-Gerau and MKG-Kraftfahrzeuge-Factory GmbH (C-305/01) [2003] (Sixth Chamber).
- 27.
Ruddy et al. (2006), Para 26.
- 28.
Ruddy et al. (2006), Para 30.
- 29.
Ruddy et al. (2006), Para 49.
- 30.
Ruddy et al. (2006), Para 77.
- 31.
Revenue and Customs Commissioners v. AXA UK Plc (C-175/09) [2010] STC 2825 (ECJ (3rd Chamber)) cited by Allen (2010).
- 32.
Revenue and Customs Commissioners v. AXA UK Plc (C-175/09) [2010] STC 2825 (ECJ (3rd Chamber)), Para 30.
- 33.
Allen (2010), Para 33.
- 34.
Allen (2010), Para 35.
- 35.
Allen (2010), Para 34.
- 36.
Art 1393 of the previous Romanian Civil Code.
- 37.
Civil Decision no 2509/05.03.2009, unpublished, available in Romanian online at: http://portal.just.ro/281/Lists/Jurisprudenta/DispForm.aspx?ID=32, last visited on 23.01.2015.
- 38.
In Romanian: SC TOP FACTORING SRL.
- 39.
In the case, the “factoring company” brought a civil claim action against a private person asking for payment of several mobile phone invoices that were due. The claims belonged to a phone company and were assigned to the claimant. The court, exercising its procedural rights, raised the plea of lack of standing and after allowing the parties to state their positions on it, admitted it and dismissed the case.
- 40.
Law no. 31/1990, republished in the Official Gazette of Romania no 1066/2004, Part I.
- 41.
Art 6 (2) b) of Law 469/2002, concerning certain measures for strengthening the contractual discipline, published in the Official Gazette of Romania, Part 1, No. 529/19.07.2002, currently repealed by Law 246/2009.
- 42.
In Romanian: “[…] SC T Factoring SRL nu este o societate bancară sau o instituţie financiară specializată, ci o societate cu răspundere limitată (astfel cum rezultă din chiar denumirea ei!). Prin urmare, din aceasta perspectivă şi în temeiul art 11 alin 1 lit b) din Legea 58/1998 privind activitatea bancară, operaţiunea de cumpărare a unui portofoliu de creanţe nu este legală, deoarece ea nu poate fi desfaşurată decât de o societate bancară sau o instituţie financiară specializată, aceasta din urmă în limita autorizaţiei acordate de Banca Naţională a României.” Civil Decision no 2509/05.03.2009, unpublished, available in Romanian online at: http://portal.just.ro/281/Lists/Jurisprudenta/DispForm.aspx?ID=32, last visited on 23.01.2015.
- 43.
The website was initially consulted in 2012. Currently, however, references to factoring are only implied by the company’s name and by the services offered.
- 44.
http://www.topfactoring.ro/Services, last visited 23.01.2015. There were slight differences between the Romanian and the English versions, especially with respect to the last service offered: debt purchase, which on the Romanian version states: “achiziţie de portofolii de creanţe neîncasate,” which would be more accurately translated as purchase of unpaid (due, defaulted) debt portfolios. After 2012, when it was initially consulted, the website was redesigned. The English version states as service offered: cash flow management consisting in the purchase of accounts receivable portfolios. The translation still does not match entirely since the English version left “unpaid” out. A similar case might be the one of RomFactor SRL, which defines itself as a “one-stop cross-border trade finance boutique.” See: http://www.romfactor.ro/about-us/#WhoWeAre, last visited on 23.01.2015. However, although according to the law (Government Ordinance no 28/2006 published in the official Gazette, Part I, No. 89/31.01.2006) any nonbank financial institution providing factoring services should be organized as a joint stock company (Art 5 (1) and 7 (1)), registered with the National Bank of Romania (Art 34), there is no mention of this company in the Registries. Basically, according to the data coming from the bank, there is only one nonbank financial institution engaged in factoring at 07.08.2014. See: http://www.bnro.ro/files/d/RegistreBNR/ifn/RegistrulGeneral/registrul_general_ifn_active_e.htm, last visited on 23.01.2015.
- 45.
As shown earlier, in West v. Costen, in the US masking debt collection under factoring services would not insulate debt collectors from liability under the FDCPA. In countries such as Romania, where no legislation concerning abusive debt collection exists, such question would not arise. Most likely, in Romania, the factoring agreement was used to overcome the limitations imposed by the previous Civil Code to assignment of debts. However, after the implementation of the RNCC the issue of debt assignments is not a concern for debt collectors anymore.
- 46.
Ionut Daniel Gogorita and Ovidiu Florian—CONTRACTUL DE FACTORING, p. 8. The paper is not available online anymore.
- 47.
Although not without merits, this theory is not complete, since many debt collectors engage now in acquisition of large portfolios of unpaid or bad debt, at huge discounts, for they undertake the entire risk of nonpayment. However, in case of successful collection, any amount beyond what was paid at purchase will remain with the debt collector as profit.
- 48.
Gogorita and Florian, p. 8, not available on-line anymore. In Romanian: “Sunt numeroase firme de recuperări ce promit doar încasarea facturilor şi nu preiau riscul de neîncasare. In asemenea situaţii rămâneţi proprietarul creanţei ca în cazul pseudo contractelor de factoring, societăţii de recuperare urmând să-i achitaţi comisionul perceput pentru serviciul de “stimulare” a clientului rău platnic.”
- 49.
A response to the issue of notification of assignment is the nonrecourse factoring (a.k.a. confidential factoring) where the communication between the factor and the debtor is reduced to a minimum, by using the creditor’s corporate image and letterhead. However, even in such cases, the factor retains the right to notify the debtor in the event of a covenant breach or serious default. http://www.comcapfactoring.com/blog/what-is-non-notification-factoring/, last visited 23.01.2015.
- 50.
UCC, Section 9-109 (a) (3). Also: Posel (1982), p. 294.
- 51.
Official Comment 4, Laws (2009), p. 875.
- 52.
Gilmore (1999), pp. 250–286. Gilmore describes that in the pre-UCC period the law relating to accounts receivables financing—in which he includes the assignment of monies due and to become due as well as factoring (pp. 250–251)—had been almost entirely common law. Hence, any nonnotification financing agreement risked being set aside in bankruptcy as a voidable preference (p. 253). However, the rule adopted in Benedict v. Ratner, 268 U.S. 353, 45 S. Ct. 566, 69 L. Ed. 991 (1925), according to which a reservation of dominion by the assignor was inconsistent with the effective disposition of title and creation of a lien, did not affect factoring operations, for factoring always required notification to the account debtor and direct payment to the factor (p. 259). Even if the decision would have been applicable, there would have been no major effects on factoring operations since the factor was already accustomed to “police” the affairs of his clients, in the way the Benedict rule now required lenders to do (p. 261). The story gets more complicated with the introduction of the accounts receivable statutes, first in the form of validation statutes—according to which assignments were to receive statutory protection without either notification or filing—which basically established an automatic perfection of assignments (p. 274), on the false premise that still survives in the UK and Germany that once the assignment is made public bankruptcy is just around the corner (p. 275) and later with the return to the traditional favoring of publicity against secret liens (p. 275). The latter position prevailed and was maintained by the UCC.
- 53.
Posel (1982), p. 294.
- 54.
Posel (1982), p. 294.
- 55.
Girsberger (1992), p. 472.
- 56.
UCC, Section 9-309 (2), concerning assignments that do not transfer a significant part of the assignor’s outstanding accounts. According to Comment 4, the purpose of Para 2 of Section 9-309 is to save from ex post facto invalidation casual or isolated assignments, which no one would think of filing. However, any person who regularly takes assignments of any debtor’s accounts or payment intangibles should file.
- 57.
These conclusions stem out from the provisions of UCC, Arts. 9-204 (1) and 9-302 (1). Girsberger (1992), p. 472.
- 58.
UCC, Section 9-406 (1). According to Comment 2, the revision of the UCC made clear that once the account debtor receives the notification, the account debtor cannot discharge its obligation by paying the assignor. It also makes explicit that payment to the assignor before notification or payment to the assignee after notification discharges the obligation. However, the effectiveness of the notification is not in any way affected by the identity of the person who gives it. With respect to the requirement of authentication, the comment states that this requirement is satisfied by sending notification on the notifying person’s letterhead or on a form on which the notifying person’s name appears. (Section 9-102 defines authentication.) See: Laws (2009), p. 994. Obviously, the meaning of the term is different from the European understanding where it commonly means a document that has been certified by a public notary or an attorney.
- 59.
As Gilmore put it, in the history of the American security law there has been “one constant factor: whenever a common law device has been covered by a statute, some form of public recordation or filing has been required as a condition of perfection of the security interest.” He further notes that despite opinions claiming that filing statutes concerning accounts receivable might destroy business credits, the reality proved otherwise: “receivables financing kept on growing, no matter what kind of statute was adopted.” Hence, even in the pre-UCC era, accounts receivable statutes have included both transfers, which were sales or outright assignments and transfers for security. The reason was the need to protect not only straight accounts receivables but also arrangements of the factoring type (which had either a notification or a nonnotification form). Gilmore (1999), pp. 274–276.
- 60.
Girsberger (1992), pp. 474–475.
- 61.
Girsberger (1992), p. 484.
- 62.
See infra Sect. 5.1.4.2.
- 63.
The sole exception among the chosen jurisdictions is constituted by Romania, which implemented a filing system similar to the US one in 1999 by means of Law no. 99/1999. The law was repealed in 2011 by the RNCC, but the system was maintained. Currently, the filing system is provided by RNCC, Art. 2413–2419.
- 64.
The assignment referred to here is the statutory or the legal assignment, whose formalities are set out in Section 136 of Law of Property Act 1925.
- 65.
Johnston (2008), p. 148.
- 66.
Provided that there is no nonassignment clause in the contract between the client and the debtor, the factor obtains, by assignment of debts to him, the absolute right to be paid by the debtor, even without the latter’s consent. However, he will not obtain more rights than the client had and, thus, he may collect only according to the contractual terms between the client and the debtor. Ruddy et al. (2006), p. 71. Also: Biscoe (1975), pp. 99–100.
- 67.
English scholars recognize as their American peers that lending against a fixed charge on the book debts of the client might have the same practical effect as factoring by the purchase of the debts and payment on account for them by the factor on invoice date. It is emphasized that lending on security overcomes the difficulties put by the prohibition of assignment in contracts between sellers and buyers of goods and services, as well as conflicts with other charges. However, on the other side, a purchase of debts provides the factor with the benefit of direct recovery from debtor, the client does not need to register a charge and payment of charges by the client is without deduction of tax. This last approach has prevailed in the UK. One must bear in mind the difference between a mortgage and a charge, for while a mortgage comprises the transfer of ownership of the mortgaged property to the security holder subject to the mortgagor’s right of redemption, a charge does not include any transfer of ownership but merely gives the security holder the right to have his debt paid out of the proceeds of the charged goods. See: Ruddy et al. (2006), pp. 4–5 and 322. Biscoe adds to the above that purchases and mortgages are both forms of assignment, whereas the charge is not. However, a purchase is an absolute transfer of property for consideration, whereas mortgages and charges are secured loans. Biscoe (1975), pp. 89–91; and Johnston (2008), p. 148.
- 68.
Drury and Xuereb (1991), p. 225.
- 69.
Ruddy et al. (2006), p. 139. There is no special requirement concerning the notice other than that it should be in writing. Since the statutory requirement provides for “notice” and not “a notice,” the understanding is that there is no need for a separate document. However, the notice should state clearly that there has been an assignment, what has been assigned and to whom, but there is no need to include the date of the assignment. The three requirements concern only the statutory assignments; hence, any assignment that does not fulfill all of them may be valid in equity, provided the intention of the parties is clear and value has been given. According to another source, the notice is also “the primary collection device, endorsed on invoices directing customers to pay the factor.” See: Biscoe (1975), pp. 3 and 100–103.
- 70.
- 71.
Beale et al. (2012), p. 290.
- 72.
- 73.
Biscoe also distinguishes between factoring and invoice discounting, the latter being a purely financial facility without the nonfinancial elements of factoring. The author points out that the distinction is blurred and confusion is maintained by the fact that in practice many refer to invoice discounting as “confidential factoring,” which is in fact a form of nonrecourse factoring. Even if invoice discounting agreements resemble factoring agreements in that the financier purchases the debts and the client makes much the same warranties concerning their validity and enforceability, the differences are numerous: the purchase is always with recourse to the client, notice of assignment is not given to the customers, the client collects the debts as the financier’s agent and usually has a discretion as to the frequency of assignments and, also, the financier provides no nonfinancial services to the client. Biscoe (1975), pp. 24–25. On the distinction between outright sale of receivables at a discount or a loan secured on receivables, see also: Beale et al. (2012), pp. 286–289.
- 74.
Charges and mortgages have to be registered with the Registrar of Companies in order to be valid against any liquidator of the company. However, purchases of debts are not subjected to the registration requirement. Public registration of assignments was seen as deterring some businesses from factoring. Although not everyone shared this opinion, lack of registration requirement was presented as one of the major advantages of assignments by way of purchase of client’s debts. Biscoe notices though that in commercial reality, the sale of debts to a factor is similar in effect to giving security whatever the law may say, which is why it is treated the same under the American UCC and why the Crowther Committee and the Diamond Report recommended the same treatment in the UK. Biscoe (1975), pp. 89–91; and Beale et al. (2012), pp. 288, 446 and 772–776.
- 75.
- 76.
Ruddy et al. (2006), p. 161.
- 77.
English law also establishes an exception from the abovementioned rule, in the case of adjusting priority claims that arise from a contract of sale when the supplier of goods has retained the ownership of the goods and also over the proceeds generated by these goods, until they are entirely paid for. The conflict might appear in case the company has also entered into a factoring contract with respect to its customers’ debt arising on the resale. The exception consists in the fact that the law will enable the unpaid supplier to recover the resale price of the goods from the person who bought them from the company or, from the company itself, if the price has been paid to it. The legal justification stems from the fact that the resale company has been acting merely as an agent of the unpaid supplier. For details: Drury and Xuereb (1991), pp. 225–226.
- 78.
The general rule of priorities between competing assignees of the same debt is known as the Rule in Dearle v. Hall (1828) 3 Russ 1. The rule states that the first assignee who is acting in good faith, without knowledge of an earlier assignment to a competing assignee, to obtain a receipt by the debtor of notice of his assignment is entitled to collect and give a good discharge for the debt. However, if the debtor receives more notices on the same day, it will be the earlier assignment that will have priority. Same solution will be applied in case no notice at all has been given by any of the assignees, provided the equities are equal. Ruddy et al. (2006), pp. 161–163; and Biscoe (1975), pp. 122–125. For a detailed analysis and criticism of the rule, see: Beale et al. (2012), pp. 477–479.
- 79.
- 80.
- 81.
As emphasized, besides assisting the factor in his claim for priority against competing interests in the assigned debts, the receipt of notice by debtor has several other important effects: it fixes the rights of the parties in relation to the debtor’s countervailing rights, it prevents the discharge of the debtor by subsequent payment to the client, it avoids changes in terms in the contract between the client and the customer and it also enables the factor to take proceedings to recover the debt in his own name. For details: Ruddy et al. (2006), pp. 163–167; and Biscoe (1975), pp. 111–118.
- 82.
Mesnooh (1994), p. 254.
- 83.
Rodière (1976), p. 580. For such an operation to remain, at least by analogy, within the confinements of the Civil Code, French jurists offered four possible theories: novation by change of creditor, delegation, assignment of receivables or conventional subrogation with the consent of the client (subrogating creditor) and of the factor (subrogated creditor). Currently, delegation is used to take security over insurance policies and rental payments. The délégant asks for the délégué, who accepts it, to pay certain sums to the délégatire, though the délégant is still not discharged. The right and obligations of the debtor and third party involved will be defined by contract and customs, not by law. There are no legal requirements concerning the validity of the delegation, but in practice it is advisable to have a written contract in which to clearly state the rights and obligations of the parties. The document is usually a tripartite security agreement in which the security provider asks that one of his own debtors pays the secured creditor. See: Hilson (2010), pp. 19–46. On the assignment, it was noted: “Assignment of accounts receivables and subrogation are closely related and many issues in the law of subrogation have been resolved by analogy to the law of assignment. […] Under French law, unlike under German law […] a transfer of accounts receivable, in order to be valid, must be founded on a valid agreement, such as purchase or a credit agreement (“cause”). […] Unlike in German and Swiss law or under the UCC, any assignment in order to be valid must be notified to the account debtor by a so called “signification” a notification which must be delivered by a court clerk, Art. 1690 (1) Code Civil. Alternatively, an assignment may be formally accepted by the account debtor through a public declaration (“acceptation” Art. 1690 (2) Code Civile).” See Girsberger (1992), pp. 477–478. However, out of the four theories, the one favored was the last one, conventional subrogation, for it offered several advantages: it did not require the participation of the debtor or a notice to be given to the debtor or an authenticated acceptance from the debtor. These requirements are contained in FCC, Art 1690, concerning assignments. The debtor’s acceptance by authentic act is necessary in order for the assignment to have effect as against both third parties and the debtor of the accounts receivable. See Rodière (1976), p. 580.
- 84.
For details concerning the advantages and disadvantages of a Loi Dailly assignment as well as the procedure: Johnston (2008), pp. 180, 182.
- 85.
- 86.
- 87.
The only condition was that future receivables or future contracts were sufficiently identified. Otherwise, it covered a wide range of receivables, including goods sold or subsidies by public bodies. Hilson (2010), pp. 19–45.
- 88.
- 89.
Provided notice was not served and payment was made to the client, the latter was deemed to hold the funds as the agent of the factor. As long as the payments made by the debtor were in good faith, in the abovementioned circumstances, they were valid and the debtor was discharged. See: Hilson (2010), pp. 19–45.
- 90.
Posel (1982), p. 298.
- 91.
Posel (1982), p. 300.
- 92.
- 93.
- 94.
Girsberger (1992), p. 480.
- 95.
The factoring contract is considered an atypical contract, since the obligations of the parties cannot be linked to any of the types of contracts to be found in the BGB. Even the fact that factoring is used under its English name is considered a proof of the strong influence of Anglo-American law and business practices. The rules for this type of contract are to a great extent shaped by case law, but, tributary to the civilian system tradition, they seek to draw on their resemblance to known types of contracts in order to apply the provisions of BGB, at least by analogy. Markesinis et al. (2006), p. 163.
- 96.
Hilson (2010), pp. 19–60. In practice, an assignment concerns all receivables from business transactions with customers (Globalzession). Since under German law there is no equivalent of the US floating lien or the UK floating charge, global assignments and blanket assignments (Mantelzession) are used to assign a yet undefined number of present and future receivables. In the former case, the company assigns all present and future receivables from the outset, while in the latter they are assigned after they come into existence. Another difference between the two is that in the former case, the assignment is automatic. For details, see Johnston (2008), pp. 196–199; and Serick (1990), pp. 90–92.
- 97.
BGB, Art 398, and Johnston (2008), pp. 193–195.
- 98.
- 99.
Grundmann (2013), p. 121.
- 100.
Drury and Xuereb (1991), p. 233.
- 101.
- 102.
BGB, Art. 398, and Hilson (2010), pp. 19–59.
- 103.
- 104.
- 105.
Decision of the Bundesgerichtshof from 29.11.2007, published in Zeitschrift für Wirtschaftsrecht (ZIP) (2008) 183-9, cited in Johnston (2008), pp. 198–199.
- 106.
Johnston (2008), p. 199.
- 107.
Markesinis et al. (2006), p. 181.
- 108.
One must mention here that in Germany the assignor is authorized to collect and/or receive any and all of the receivables and to exercise all other rights assigned to the security holder during the ordinary course of business, unless the assignee has revoked such authorization for default or for other reasons defined in the assignment agreement. Upon such an event, the assignee is entitled to inform the obligors of the transferred claims of the assignment. In that case, this information is deemed notice and the obligor must discharge his obligation by paying directly to the assignee. Hence, the protection offered to the debtor by the BGB refers only to payments done before such notification, even if the default or any other triggering event has already occurred.
- 109.
BGB, Art 404.
- 110.
BGB, Art 407. Also: Girsberger (1992), p. 476.
- 111.
Serick (1990), p. 98.
- 112.
Girsberger (1992), p. 477.
- 113.
“The one defect of German law is that it provides no machinery for publicizing the arrangements a company makes in order to secure money which it raises by charging or transferring its assets other than land, ships, aircraft and industrial property rights. This results in greater opportunities for conflicting priority claims to arise between the various banks and institutions which finance a company.” See Drury and Xuereb (1991), p. 233; and Johnston (2008), p. 203.
- 114.
OUG no. 10/1997 for diminishing the financial blockage and the economic losses (in Romanian original: OUG nr 10/1997 cu privire la diminuarea blocajului financiar şi a pierderilor din economie), published in the Official Gazette no. 72/22.04.1997, repealed by Art 13 of Law no. 469/2002.
- 115.
For a more detailed description of the legislative evolution of factoring in Romania: Vartolomei (2006), pp. 90–94.
- 116.
Law no. 469/2002 with respect to some measures concerning the strengthening of contractual discipline (in Romanian original: Legea nr. 469/2002 privind unele măsuri pentru întărirea disciplinei contractuale), published in the Official Gazette no. 529/19.07.2002, repealed by Law no. 246/2009, published in the Official Gazette nr 450/30.06.2009.
- 117.
The intuitu personae character of the factoring contract is not fully supported by Romanian scholars, but as all of them mention it, the book refers to it as well.
- 118.
- 119.
- 120.
RNCC, Art 1568.
- 121.
RNCC, Art 1579.
- 122.
- 123.
- 124.
Turcu (2011), comment to Art. 1598—Subrogaţia parţială (partial subrogation), p. 681.
- 125.
See supra Sect. 5.1.3.
- 126.
By the enactment of the RNCC, the division between civil and commercial codes was extinguished. Thus, the merchant’s definition offered by the former Commercial Code does not exist as such anymore but was included in the RNCC together with a new category, that of the professional, the latter not being defined by the code.
- 127.
Carpenaru et al. (2009), p. 474.
- 128.
For details: Carpenaru et al. (2009), p. 474. There was also the opinion that such operations can be undertaken only by commercial banks given the fact that Romanian Company Law does not provide for the existence of commercial companies that have as sole activity factoring operations. Vartolomei (2006), p. 96.
- 129.
According to Government Ordinance no 28/2006 published in the official Gazette, Part I, No. 89/31.01.2006, any nonbank financial institution providing factoring services should be organized as a joint stock company (Arts 5 (1) and 7 (1)), registered with and under the supervision the National Bank of Romania (Art 34).
- 130.
- 131.
In Romanian original: Arhiva Electronica de Garantii Reale Imobiliare.
- 132.
RNCC, Art 2413–2419.
- 133.
Turcu (2011), p. 681, comment to Art. 1598—Subrogaţia parţială (partial subrogation).
- 134.
Carpenaru et al. (2009), p. 480.
- 135.
RNCC, Arts 1579 and 1583.
- 136.
To sum up, filing with the EAST makes the assignment opposable to third parties and establishes the priority between multiple assignees. On the other hand, the notification of the debtor will matter only for making the assignment opposable to him. However, with or without notice to the debtor, the assignment will have full effect between the assignor and the assignee (RNCC, Art 1575). In practice, notice will most likely be served by the factor upon assignment for this will be the only way in which the factor will be paid directly by the debtor.
- 137.
UCC, Section 9-406 (d). According to Comment 5, the current version of UCC has expanded the rule of free assignability to chattel paper and promissory notes and explicitly overrode both restrictions and prohibitions of assignment. The comment also addresses the meaning of the term “ineffective” which is to be construed in the sense that the clause is of no effect whatsoever, and hence, the presence of such a clause will not prevent the assignment from taking effect between the parties and the prohibited assignment will not constitute a default under the agreement between the account debtor and the assignor. See Laws (2009), pp. 995–996. For details also: White and Summers (2010), pp. 438–441.
- 138.
White and Summers (2010), pp. 440–441.
- 139.
Beale et al. (2012), p. 277.
- 140.
Johnston (2008), pp. 183–184.
- 141.
Johnston (2008), p. 184.
- 142.
- 143.
Grundmann (2013), p. 130. The explanation offered by the author is that by including nonassignability clauses, debtors try to avoid the erroneous double payment of the same debt, by paying the factor after they have paid the original debtor already.
- 144.
Art 354 of the German Commercial code (Handelsgesetzbuch). Also: Johnston (2008), p. 195.
- 145.
BGB, Art. 455.
- 146.
Grundmann (2013), pp. 129–130.
- 147.
RNCC, Art 1570, Para 1. According to the legal provision, nonassignment clauses will be upheld unless the debtor has consented to the assignment, the clause was not expressly stated in the contract and the assignee (the factor) did not and could not know of its existence at the time of the assignment or the assignment regards a monetary payment.
- 148.
RNCC, Art 1569.
- 149.
See: https://www.brd.ro/stiri/brd-este-liderul-pietei-de-factoring-din-romania-cu-o-cota-de-piata-de-34-si-cifra-de-afaceri. According to data provided by the leading factoring operations provider, only in 2013, the factoring market amounted to 2.7 billion euros and had an increase of 6 % in the first trimester of 2014. The situation was not much different in 2012, which seems to prove that the market has stabilized. See: http://www.romania-insider.com/romanias-factoring-market-worth-nearly-eur-3-billion-in-2012/77482/ both last visited 23.01.2015.
- 150.
An article from 2012 states that in the past 25 years significant progress has been achieved in Europe since the old regime favoring creditors has been replaced by a more debtor-friendly system. However, the change is still deemed unsatisfactory. According to the author: “the credit crunch made it clear once again that the comprehensive consumer protection system is certainly not an obsolete notion. […] The character of debt help must become more businesslike, whereas debt collection should gain a more social character.” Huls (2012), p. 498.
- 151.
Warren and Westbrook (2009), p. 14.
- 152.
- 153.
One may argue that the “no breach of peace standard” could be considered a defense of the debtor against abusive repossessions. However, given the fact that the standard is one of the conditions specifically stated by the law, the book’s opinion is that the “no breach of peace standard” is a validity condition of self-help repossession and not a defense against it.
- 154.
Whether existent general consumer protection laws available at EU and Member States levels are sufficient in dealing with debt collection is a matter for debate and is specifically addressed in the following chapter. However, for now one should notice that the examples of the US and the UK make a compelling argument for the need of sector-specific regulation to deal exclusively with debt collection, while the fact that France and Germany have introduced additional legislation in the field, even if not as extensively as the US or the UK, indicates a recognition of the same need.
- 155.
- 156.
“The legislative history of FDCPA notes that in 1976, companies turned over five billion dollars in debt to the approximately five thousands agencies across the country.” Hector (2011), p. 5.
- 157.
- 158.
De Boer (2013), pp. 1–2. According to data offered by the BCFP, about 30 million Americans, nearly 10 % of the population, was subjected to debt collection in 2013, for amounts averaging 1,500 dollars per person.
- 159.
“The debt collection industry is one of the few booming industries left in America. […] [E]xperts estimated that debt collection firms’ revenues will “increase from 10 billion dollars in 2006 to 11.6 billion in 2011.” Fox (2012), p. 357. “As the US economy continues to struggle, one sector flourishes: the debt collection industry. With literally trillions in outstanding debt nationwide, businesses have stepped up their efforts to recover debts owed to them.” Gogel (2011), p. 358. Additional data can be found in Holland (2011).
- 160.
- 161.
“According to the Bureau of Labor Statistics, jobs in debt collection are expected to increase by 19 % for the period from 2008 through 2018, faster than any other occupation.” Fox (2012), p. 357. Also: Spector (2011), p. 262: “An industry trade association […] estimates that the debt-buying industry employs 150.000 people nationwide and, by 2005, was responsible for collecting nearly 40 billion dollars in outstanding debt.”
- 162.
“[C]ollectors are going to have to get creative in order to keep the liquidations up.” See Jurgens and Hobbs (2010), p. 17.
- 163.
Huls (2012), p. 503.
- 164.
- 165.
“The debt collection industry can be broken into two parts. One encompasses the debt that creditors sell to debt recovery agencies for a discount.[…] The other part is made up of in-house or third-party collectors whom creditors employ to recover debts on their behalf.” Gogel (2011), p. 359.
- 166.
King and Cook (1996), p. 7.
- 167.
- 168.
- 169.
FDCPA, Section 803, Para 6.
- 170.
FDCPA, Section 803.
- 171.
The term “never” refers here only to the federal legislation, which is a de minimis rule. However, as stated already, original creditors are considered debt collectors by most of the states’ FDCPAs, the so-called, mini-FDCPAs, which are state level legislation. Whether the original creditors should be considered debt collector is addressed in more detail in the next chapter.
- 172.
See the legal conditions established by FDCPA, Section 803, Paragraph 6, letter F.
- 173.
For detailed examples and explanations of who qualifies and who doesn’t qualify as a debt collector under FDCPA, see: The Federal Trade Commission—Staff Commentary on the Fair Debt Collection Practices Act, Commentary to Section 803 (6), available online at: https://www.fdic.gov/regulations/laws/rules/6500-1325.html, last visited on 23.01.2015.
- 174.
Fox (2012), p. 357.
- 175.
Only according to state law (mini-FDCPAs) are the original creditors considered debt collectors.
- 176.
Fox (2012), p. 357.
- 177.
For details: Goldberg (2006), pp. 725–729. “Debt collectors previously pursued only a few accounts to collect the highest amount available from each debtor, thereby incurring high costs with small returns. The companies learned, however, that they could buy large portfolios of debt for relatively small fixed costs and then fully exploit their technology and personnel to reach thousands of debtors each day and accept lower recovery amounts. This process reduced costs while producing higher returns. Accordingly, economies of scale provided debt-buying companies with increased profits and the opportunity for extended growth” (p. 726). Additional data can be found in Spector (2011), pp. 257–299.
- 178.
Fox (2012), p. 357.
- 179.
See Fox (2012), p. 357.
- 180.
Prices vary in different geographical areas due to requirements of FDCPA and to different state laws. For details: Fox (2012), p. 357.
- 181.
Jurgens and Hobbs (2010), p. 18.
- 182.
Spector (2011), p. 262.
- 183.
Spector (2011), p. 262.
- 184.
Jurgens and Hobbs (2010), p. 18.
- 185.
Spector (2011), p. 262.
- 186.
Huls (2012), p. 503. The author notices and explains the profitability of the new market noticing the wide range of consultants, intermediaries, relief providers, debt collection agencies, bailiffs and also NGOs acting in the field.
- 187.
Schwarze and Storjohann (2006), p. 77.
- 188.
Schwarze and Storjohann (2006), p. 77.
- 189.
Schwarze and Storjohann (2006), p. 77.
- 190.
Schwarze and Storjohann (2006), p. 77.
- 191.
- 192.
Some examples: the Romanian version of the official website of SC Top Factoring SRL states under “Services”: “acquisition of defaulted debt portfolios,” available at http://www.topfactoring.ro/Servicii, last visited 23.01.2015. The English version of the official website of EOS KSI Romania states under “Services”: “EOS KSI Romania purchases receivables portfolios of various compositions. We offer debt purchase for our client’s defaulting debts, unsecured, or secured by movable goods or real estate,” available at: http://ro.eos-solutions.com/en/services/receivable-management/debt-purchase/, last visited on 23.01.2015. The English version of the official website of Urban si Asociatii also states that “receivables purchase” is part of their offered services, available at: http://www.urbansiasociatii.ro/en/services.php, last visited on 23.01.2015. The Romanian website of GCA specifies that they offer purchase of receivables (available online at http://gca.ro/ro/achizitii.php, last visited on 23.01.2015) as part of their services, but the provided link will actually send customers to the website of a private person involved in the purchasing business (available online at: http://lucianbagia.ro/ro/achizitii.php, last visited on 23.01.2015), which has major implications that will be analyzed in the following chapter.
- 193.
- 194.
Similar federal statues are Equal Credit Opportunity Act (prohibits discrimination in connection with a credit transaction), Fair Credit Reporting Act (limits collector’s ability to report accounts in collections that predate the report by more than 7 years. Spector (2011), p. 263.
- 195.
“Forty two states supplement the FDCPA with legislation governing debt collection.” For discussion, see Spector (2011), p. 263.
- 196.
“While the FDCPA protects consumers from unlawful practices of third party debt collectors, it does not protect consumers from the original creditor or debt buying agency except in extremely narrow circumstances.” Gogel (2011), p. 358.
- 197.
“The modern debt collection industry has found new ways around consumer protection laws that allow it to continue squeezing money out of debtor’s pockets. Unfair but legal collection methods include: outsourcing early collection services overseas to bypass US laws, using sophisticated databases to target individuals who are statistically likely to pay debts, taking advantage of the liberal procedure requirements in small claim courts to obtain judgments against unsophisticated debtors, and collecting debts well after the expiry of the statute of limitations.” For details: Goldberg (2006), pp. 713, 724–752.
- 198.
“[F]DCPA simply made collectors implement a new business model tailored to the new law. In order to carry out the new model, debt collection industry has resorted to many abusive strategies that have allowed companies to disregard the spirit of FDCPA, while still complying with the letter of the law.” Goldberg (2006), p. 729.
- 199.
“The basic tool of the debt collector is the telephone. Each day tens of thousands of collectors file into cubicles […] and use automated dialers to call alleged debtors and try to persuade them to send money.” Jurgens and Hobbs (2010), p. 6.
- 200.
Spector (2011), p. 263.
- 201.
Section 809(a) requires a collector, within 5 days of the first communication, to provide the consumer a written notice (if not provided in that communication) containing (1) the amount of the debt and (2) the name of the creditor, along with a statement that he will (3) assume the debt’s validity unless the consumer disputes it within 30 days, (4) send a verification or copy of the judgment if the consumer timely disputes the debt and (5) identify the original creditor upon written request. For details https://www.fdic.gov/regulations/laws/rules/6500-1325.html, last visited on 23.01.2015.
- 202.
Jurgens and Hobbs (2010), p. 6. On the same topic: Goldberg (2006), p. 731. Among the advantages of outsourcing overseas, the author mentions “improved returns on capital, lowered risk, greater flexibility, and better responsiveness to customer needs at a lower cost,” but there are also a large number of problems such as “sending extensive databases of debtor information to other countries compromising debtor’s privacy rights” and “loss of control over third party operators.” For details, see infra Chap. 7, Sect. 7.2.1.1.
- 203.
Huls (2012), pp. 504–505.
- 204.
http://en.france-contentieux.com/debt-collection-process.html, last visited 23.01.2015.
- 205.
http://en.france-contentieux.com/debt-collection-process.html, and http://www.collection-agency-france.com/, both last visited on 23.01.2015.
- 206.
http://www.abad-debt.com/france-collection-agency.htm, last visited on 19.06.2012 (page not available anymore).
- 207.
http://www.abad-debt.com/services.htm, last visited on 19.06.2012 (page not available anymore).
- 208.
http://www.debtcollectioningermany.com/FAQ.html, last visited on 23.01.2015.
- 209.
http://www.debtcollectioningermany.com/FAQ.html, last visited on 23.01.2015.
- 210.
Explanations for “Mahnbescheid” and “Widerspruch”: http://www.europeancollectors.org/debt-collection-in-germany, last visited on 23.01.2015.
- 211.
“Letters before action: This service allows you to easily send out overdue account reminder letters to your customers.” The website even provides for an automatic method of submitting the data for such bulk letters. http://www.creditcollections.co.uk/bulkletters.htm, last visited on 23.01.2015.
- 212.
“We personally talk to your debtor on a continuing programmed basis, creatively and psychologically obtaining debtor commitment and payment to you.” http://www.arhelp.com/howdoesitwork.asp?GUID=apoc9sin8e, last visited 23.01.2015.
- 213.
The motto of one UK collection agency is as follows: “It is the Personal Contact of your debtor that gets the result you want.[…] Letters don’t collect, we do!” http://www.arhelp.com/howdoesitwork.asp?GUID=apoc9sin8e, last visited 23.01.2015.
- 214.
http://www.directcollectionsltd.co.uk/, last visited on 23.01.2015.
- 215.
http://www.topfactoring.ro/Company, visited on 19.06.2012. The current content of the page suffered modifications with respect to services offered.
- 216.
http://www.toprecuperari.ro/index-2.html, last visited 23.01.2015. The Romanian text reads: “Activitatea de recuperare creanţe se desfaşoară în 2 etape: - colectarea pe cale amiabilă - telefoane, notificări, concilieri directe, etc., conform unei proceduri interne adaptate de la caz la caz. - recuperarea pe cale judecătorească - reprezintă declanşarea procedurilor judiciare în vederea recuperării creanţei.”
- 217.
http://www.urbansiasociatii.ro/en/the_dispute_stage.html, last visited on 23.01.2015.
- 218.
- 219.
Spector (2011), p. 263.
- 220.
“After a careful empirical study […] many creditors are unlikely to use courts for collection because they see litigation as loaded with unnecessary costs.” Other risks, especially when it comes to consumer debt, is that of losing the case entirely or getting a decision stating that the creditor does not hold a valid debt. For details: Warren and Westbrook (2009), p. 5.
- 221.
Spector (2011), p. 263, Jurgens and Hobbs (2010), pp. 12–16, The Legal Aid Society, Debt Deception. How Debt Buyers Abuse the Legal System to Prey on Lower-Income New Yorkers at http://www.nedap.org/pressroom/documents/DEBT_DECEPTION_FINAL_WEB.pdf, pp. 6, 8–9.
- 222.
“Recently litigation has moved from a method of last resort to a preferred method of collecting debts.” Fox (2012), p. 358.
- 223.
Spector (2011), p. 263.
- 224.
“Unfortunately the FDCPA was written at a time when most collection activity was non-judicial. It has not kept up with the changes in the practice of debt collection and is largely silent when it comes to litigation abuse.” Fox (2012), p. 359.
- 225.
“The rate of default judgments in consumer debt collection cases is reported to have reached 95 % and may be double the default judgments rate in debt cases generally.” Spector (2011), p. 263. “Collectors have taken over small claims courts and other low level courts in state after state. In Massachusetts, “the people’s court has become the collectors’ court.”[…] The vast majority of court cases resulted in judgments in favor of the creditors.” Jurgens and Hobbs (2010), p. 13. “According to industry reports, close to 80 % of the debtors fail to respond to collection lawsuits and most result in default judgments.” Fox (2012), p. 358. Similar data can be found at Holland (2011), p. 267.
- 226.
Emons (2007). According to this paper, the UK introduced conditional fees (success fees), while France and Germany are considering introducing them (pages 89–90). For the moment, the contingency fee is strictly forbidden in Europe by the ethical code of the European association of lawyers. On the contingency fee in France: http://www.triplet.com/70-10_litigation/70-30_structure.asp, last visited on 23.01.2015.
- 227.
On the proposal of having actual contingency costs introduced in the UK, see European Justice Forum’s paper UK: Government Implementation of Jackson Reforms on the Costs and Funding of Litigation. Introduction of Contingency Fees and increased Mediation, p. 2, available online at http://europeanjusticeforum.org/storage/UK%20Government%20Implementation%20of%20Jackson%20Reforms%20on%20the%20Costs%20and%20Funding%20of%20Litigation.pdf, last visited on 23.01.2015.
- 228.
http://www.debtcollectioningermany.com/FAQ.html, last visited on 23.01.2015.
- 229.
“A dismissal without prejudice can create as many problem for defendant as it solves. The debt will likely be sold back into the debt market and eventually come back to haunt the defendant. […] A dismissal without prejudice leaves the collection agency with a valuable asset it can sell.” Fox (2012), p. 368. Also: Spector (2011), p. 260.
- 230.
Jurgens and Hobbs (2010), p. 3.
- 231.
“These judgments can be used – depending on each state’s laws – to garnish wages or seize assets from a debtor. A judgment can also extend the life of a claim decades beyond limits imposed by state statutes.” Jurgens and Hobbs (2010), p. 12. “A summary judgment granted in error on, for example, a debt that is beyond the statute of limitation, has the effect of laundering the defect from that debt. The debt is now a judgment that can be collected for the next twenty years.” Fox (2012), p. 368.
- 232.
http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt144.shtm, last visited on 23.01.2015.
- 233.
In the US, the Federal Trade Commission actually informs consumers that paying an old debt is entirely up to them. See http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt144.shtm, last visited on 23.01.2015.
- 234.
The decision to sue for a discharged debt may serve other purposes as well: “some creditors may believe, perhaps erroneously, that they need a judgment for a tax or regulatory purposes,” to “impose costs on the consumer by damaging the consumer’s credit rating,” “to maintain a reputation as a tough debt-collector and discourage other debtors from defaulting.” But the main purpose remains the one of convincing “the current defendant to pay.” Hynes (2008), pp. 19–20.
- 235.
The safeguards offered by the FDCPA, when it comes to time-barred debt, are limited and refer strictly to litigation. “FDCPA bars debt collectors from threatening litigation, or actually using litigation, after the statute of limitations for suing to recover the debt has passed. But FDCPA does permit debt collectors to pursue time-barred debts that are still otherwise valid using out of court collection methods. Thus, when contacted about old debts, debtors are left without recourse unless the collection agents threaten litigation or actually file suit.” See Goldberg (2006), p. 750. In a recent case addressing the issue of trying to collect time-barred debt, the court “explained that […] [the] obligation was not extinguished by the expiration of the statute of limitations […]. Although he [the debtor n.n.] had a complete legal defense against paying the debt, he still owed it. The statute of limitation merely rendered the debt unenforceable, but it did not invalidate it.” Author unknown (2011), pp. 18–19.
- 236.
- 237.
“Each state imposes a statute of limitations, typically ranging from three to six years, after which a debtor is no longer legally obligated to pay the debt and can have a judgment dismissed in court.” See Goldberg (2006), p. 750.
- 238.
For example, the statute of limitations for credit card debt in a few states may be as long as 10 years, but most states impose a period of 3–6 years. See: http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt144.shtm, last visited on 23.01.2015.
- 239.
The full text of the Limitations Act from 1980 is available online at http://www.legislation.gov.uk/ukpga/1980/58, last visited on 23.01.2015.
- 240.
“According to German civil law, claims are generally statute-barred after 3 years.” http://www.debtcollectioningermany.com/FAQ.html, last visited on 23.01.2015.
- 241.
See the new prescription period at http://www.debevoise.com/files/Publication/d41d2d1d-0b7a-4806-ae59-79c55d1ea0a0/Presentation/PublicationAttachment/30e6df7b-791d-4192-b024-88960400ca72/RecentModification.pdf, last visited on 19.06.2012 (page unavailable anymore). The original French text of Loi no 2008/561 from 17 June 2008 “portant réforme de la prescription en matière civile” is available online at: http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000019013696&dateTexte=, last visited on 23.01.2015.
- 242.
RNCC, Art. 2517.
- 243.
Jurgens and Hobbs (2010), p. 19.
- 244.
Jurgens and Hobbs (2010), p. 20.
- 245.
Jurgens and Hobbs (2010), p. 20.
- 246.
“Under the FDCPA, an obsolete debt cannot be reported to a credit reporting agency. Accordingly, the court found that under the “least sophisticated debtor” standard the letters were misleading and impliedly threatened to take action that could not legally be taken.” See Author unknown (2011), p. 1.
- 247.
- 248.
Silver-Greenberg (2011).
- 249.
Silver-Greenberg (2011) at http://online.wsj.com/news/articles/SB20001424052970204224604577030043890121710.
- 250.
Silver-Greenberg (2011) at http://online.wsj.com/news/articles/SB20001424052970204224604577030043890121710.
- 251.
Silver-Greenberg (2011) at http://online.wsj.com/news/articles/SB20001424052970204224604577030043890121710.
- 252.
Silver-Greenberg (2011) at http://online.wsj.com/news/articles/SB20001424052970204224604577030043890121710.
- 253.
Silver-Greenberg (2011) at http://online.wsj.com/news/articles/SB20001424052970204224604577030043890121710.
- 254.
http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt144.shtm, last visited 23.01.2015.
- 255.
http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt144.shtm, last visited 23.01.2015.
- 256.
http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt144.shtm, last visited 23.01.2015.
- 257.
http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt144.shtm, last visited 23.01.2015.
- 258.
Latest settlement concerning reanimation of bad debt has reached 2.5 million dollars. For details: http://moneyland.time.com/2012/02/02/2-5-million-ftc-settlement-targets-collection-of-expired-debt/, last visited on 23.01.2015.
- 259.
- 260.
A practice seems to be the one of giving applications for default judgments to clerks instead of judges, who often lack legal training and are unable to assess whether the application meets the minimum required standards. Society (2010), p. 14.
- 261.
Fox (2012), pp. 368–369.
- 262.
Goldberg (2006), pp. 744–745.
- 263.
http://www.arhelp.com/faq.asp?GUID=apoc9sin8e#q2, last visited on 23.01.2015.
- 264.
http://www.debtcollectioningermany.com/, last visited on 23.01.2015.
- 265.
http://en.france-contentieux.com/debt-collection.html, last visited on 23.01.2015.
- 266.
http://www.abad-debt.com/services.htm, last visited on 19.06.2012 (page currently unavailable).
- 267.
Huls (2012), p. 508.
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Stӑnescu, C.G. (2015). Factoring, Bad Debt and Collection Agencies. In: Self-Help, Private Debt Collection and the Concomitant Risks. Springer, Cham. https://doi.org/10.1007/978-3-319-21503-7_5
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