Before considering defaulting on your secured debt, such as credit card debt, you should do the following:
Step
1. Look at the world from the creditor's
point of view. Suppose your boss
came to you on payday and said that he couldn't pay you the $10,000 in sales
commissions you had earned because he used the money to buy himself a new
yacht. He asks you to accept this fact, not complain about it, and to
forgive him. Would you accept not getting paid? Of course
not! You expect to get paid for your labor and you expect to get paid on
payday. You made an agreement with your employer when you began working
for him and you expect him to hold up to his end of the agreement.
Suppose
your boss continues to refuse to pay you the $10,000 sales commission. You
finally get fed up with him and decide to hire an attorney to help you get your
money. The attorney tells you his fee is $2,500 and you must pay it
regardless of whether or not you win the suit and are able to recover
collection costs from the defendant. He also tells you that your employer
will likely put up a defense and contest owing you money and that this will
drag the lawsuit on for at least 16 months. In any event, your attorney
tells you that it will be at least two years before you see a dime, and that's
only if you win.
Are
you willing to go ahead with the suit? Probably so, and not just because
you're angry or need the money for living expenses, but because your attorney
told you that there is a very high chance that you will win. You will
have to wait a bit for your money, but eventually, you will get justice.
So you tell your attorney to go ahead and file the suit. Your attorney
sues your former employer for the $10,000 sales commission plus all costs of
collection.
When
your employer receives your petition, he turns it over to the legal
department. The company attorney advises your employer to settle with you
because they don't have a leg to stand on. You will most certainly win
the suit if it goes to trial. So the company attorney cuts you a check
and pays your attorney's fees and all court costs. End of story.
But
suppose something else happens when you file suit. Suppose your employer
contacts your attorney and tells him that the company is insolvent and about to
file bankruptcy. He offers you a settlement of $7,500. Your
attorney tells you that the company is filing Chapter 13 bankruptcy and the
$10,000 due you will probably never be paid if this happens. Even if you
were to get lucky and get something, at most, it would be about 30% of what is
due you and that doesn't include your collection costs. And if you do
collect, it will be two or three years from now.
Do
you accept the deal? Yes, you do if you're smart. Of course, you
might counter offer with $8,000 or maybe $8,500 to try and get as much as you
possibly can from your employer, but if the employer won't budge, you will
eventually accept the $7,500 as payment in full and write the loss off on your
income taxes. You would be a tremendous fool not to get what you can at
this point in time.
Your
creditors think in much the same way that you do despite the fact that they are
big organizations that rake in millions every year. What is the only
difference? They aren't interested in revenge or justice. You borrowed
money from them and agreed to pay it back. They are willing to fight to
get the money you owe them in much the same way that you would fight to get the
sales commissions that your boss owes to you.
Seeing
the situation from the creditor's point of view will allow you to negotiate
much more effectively with them. Just as the employer for the example above
did, you must present your arguments in terms of what is best FOR THEM and not
you. If there is one thing you must remember when negotiating with
creditors, it is the following: An unsecured creditor will always choose the
option that brings in the most amount of money with the least amount of cost
and risk.
Using
this rule as a guide, think of what a creditor would due in the following
situations:
Situation
1: Joe
Smith owes $1,438.56 on his credit card. He defaults when he loses his
job and is unable to continue paying on the account. Will the creditor
sue? No. Litigating this matter would cost at least $2,000 because they
will have to hire an attorney in Joe Smith's location to sue him. Sure,
they could sue him and get a judgment for the amount due them, plus all costs
of filing suit, but that doesn't mean they will ever collect. A judgment that
isn't collectible is a complete waste of time and is too risky, since they have
to pay the attorney's fees regardless of the outcome.
What
is the option that brings this credit card company the most amount of money
with the least amount of cost and risk in this situation? Write off this
account as noncollectable and get a tax break and simply recover the loss by
raising the interest rates and fees across the board for all customers.
Would they negotiate with Joe for a settlement? Yes. If they don't,
the debt collection agency certainly will.
Chances are this account will eventually be turned over to a collection
agency who will try to collect on it for about six months. When they're about to give up collecting the
debt entirely, they will send Joe a letter offering to accept 70% of the debt
as payment in full. Joe doesn't have to
pay 70% because they're about to write off the debt. He can offer to pay them as little as 25% and
also demand that they remove any negative information from his credit report.
Situation
2:
Same facts as above except Joe Smith owes $5,000 to a credit card
company. Will they sue? Probably, unless they know something about
you that prevents them from suing, such as that he is absolutely broke, has no
assets and is unemployed. If someone is broke and has no job he is
considered to be "judgment proof". There is nothing that can be
seized, garnished or levied. If Joe suspected a lawsuit was in the works,
all he would have to do is start selling off his assets so that by the time the
sheriff arrived at his doorstep, there would be nothing or quickly file
bankruptcy. You cannot attach wages if a person doesn't have a job.
A general rule of thumb is that credit card companies don't go after those they
believe are broke and have no assets.
Situation
3:
Joe Smith has an excellent, secure, decent-paying job. The only problem
is that the IRS is after him for back taxes. They start seizing his
property, including his bank accounts and began garnishing his wages.
Consequently, Joe can't make the payments on his new car. The Acme Auto
Finance Company repossesses his car, sells it for what they can, and plans to
come after Joe to collect the deficiency in the amount of $2,500. Will
they sue? No, they won't. The IRS is the most powerful debt
collector in America. It can seize just about any property it wants and
debt owed to it takes precedence over all other kinds of debt. All
creditors know that it's a waste of time to file suit against someone who is being
seriously pursued by the IRS.
Situation
4:
Joe Smith had a nice-paying job for 20 years. It enabled him to buy a
respectable $350,000 home, and for he and his wife to always drive late model
luxury cars. In addition, he has accumulated an enormous amount of personal
property and household goods over the years that he thinks has a total value of
$300,000. Despite having a nice income, Joe and his wife could never live
within their means. They always wanted more, and so they have 10 credit
cards with credit lines of $15,000 or more per card which they used to buy
luxuries: clothing, art, jewelry, vacations. They always carried
too much credit card debt but somehow managed to keep it under control.
Suddenly,
Joe loses his job and he and his wife begin using the cards to pay for basic
items like groceries and take cash advances from one card to make the minimum
payments on another. They continue to do this for 10 months while Joe
looks for work. Finally, the cards are maxed out and Joe doesn't know
what to do. If he contacted the credit card companies and asked for
relief, would they give it to him?
No!
If you don't understand why, then you need to go back to the top of this page
and reread it. If you still don't understand why, then pretend like
you're a credit card company and Joe owes you $20,000. Would you
negotiate with him for a reduced settlement? No, you would tell him to
start selling off his assets so he can pay you.
If
Joe does not pay this debt, his creditors will turn all accounts with significant
amounts over to collection attorneys who will file suit and get a judgment so
the creditor can go after his house. Suing Joe is a low risk proposition
for a creditor because he has so much to take. Only a Chapter 13 would
protect Joe and his wife from these creditors once they take legal
action. Filing Chapter 7
bankruptcy would result in much of Joe's property being liquidated to pay off
creditors.
When
would Joe's unsecured creditors negotiate with him? After he and his wife
have sold all of their property except for those items needed to live
day-to-day (clothing, dishes, etc.), and then only if they still didn't have
enough to pay all of their creditors in full. Joe and his wife might hold
a massive auction and sell just about everything they own. They could
take the $80,000 net profit from the sale and offer a proportional amount to
the ten unsecured creditors that are owed $150,000 as an offer of
settlement. They would be motivated to take it since Joe has liquidated
all of his assets and there is now nothing they can recover by suing.
Obstacles
to Negotiating with Unsecured Creditors
In
general, original creditors are always tougher to negotiate with than debt
collectors or collection attorneys because --
(1)
They haven't given up on collecting the debt yet. They also have a
reputation to uphold. If word gets out that they gave in to you, then they will
be flooded with customers asking for special treatment. They will
negotiate only when they think doing so is the best choice for them.
(2)
Their in-house collection departments have certain quotas that must be
met. If a credit manager doesn't meet the quota, he risks losing his job
or doesn't get transferred to the new location of his dreams.
(3)
At least half of all in-house collection departments are headed by females
these days. Contrary to what you might assume, female collectors are
often tougher and more stubborn than male collectors because they think they
have to be tougher to compete in their field.
(4)
The people with whom you speak when you contact a creditor often don't have the
authority to negotiate debt with customers. They are often poorly trained
and simply respond to everything you say with a memorized answer. Their
main mission is to get rid of you as quickly as possible, so when you inquire
about a new payment plan, they answer with, "I'm sorry, we don't make
special payment arrangements." If you ask to speak to a supervisor
(and you should always do this if you aren't getting anywhere), they will lie
and claim one isn't available or promise that she will call you back later.
(5)
Creditors refuse to adopt policies that are in line with national
statistics. It is always more cost-effective for a creditor to work with
debtors in trouble than to let them default and the account go to collection;
yet, few of them will adopt policies that keep consumers solvent. This
inflexibility often drives debtors to bankruptcy, where unsecured creditors
lose big. Their policies don't really make any sense.
What
If A Creditor Won't Negotiate?
If
this happens, you must either give up trying to get them to negotiate or let
the debt go unpaid until it reaches a new phase in the debt collection process,
meaning it is turned over to an attorney or debt collection agency for
collection. Of course, this is risky, since you might get sued and have
your wages garnished, have to pay collection costs, etc., and doing this will
definitely ruin your credit rating.
For
these reasons, one should only utilize this technique if you really are on the
verge of filing bankruptcy. Perhaps a serious illness in your family has
caused medical bills to pile up, or you have an unbelievable amount of credit
card debt and don't know how long you can continue making just the minimum
payments each month. If you're living paycheck to paycheck, you're in
trouble.
If
the above is an accurate description of your financial condition, it is only a
matter of time before some unforeseen event causes you to fall behind or default
on your debts. Perhaps it might be a good time to go ahead and take the
plunge and get it over with. How do you know if you are ready to stop
paying your unsecured debts? It's simple. If you are willing and
able to file bankruptcy right now, then you are ready to take the plunge.
In my next post, I'll discuss tips on negotiating with debt collectors.
BCSalliance.com offers a free online debt negotiation kit to help those negotiate their unsecured debts. Go to kit.
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