Jump to content


Photo

Attorney, Arbitration or Mediation?


  • Please log in to reply
2 replies to this topic

#1 law4me2_1153

law4me2_1153

    New Member

  • Members
  • 1 posts

Posted 02 November 2012 - 12:53 PM

As allowable by self-directed IRAs, I invested IRA funds into a promissory note and security agreement. The Debtor has defaulted according to the provisions of the note. I am a novice at this, so please advise:

1.) To be in compliance with California contract law what is the process and next steps I should follow next?

2.) What are the advantages of using an attorney versus Arbitration versus mediation?

3.) Because I am in a low income bracket, what are my chances of an attorney working with me on a contingency basis, or work with me on other forms of payment?

#2 Tax_Counsel

Tax_Counsel

    Platinum Contributor

  • Members
  • PipPipPipPipPipPipPip
  • 17,688 posts

Posted 02 November 2012 - 08:55 PM

1.) To be in compliance with California contract law what is the process and next steps I should follow next?


That depends in part on the terms of the note and security agreement. What property is secured? What did you do to secure it? How much is owed and what were the terms of the note? The details matter, and we don't have those here.


2.) What are the advantages of using an attorney versus Arbitration versus mediation?


The question doesn't make sense because you use an attorney to advise and represent you in legal matters. You can have an attorney represent you in court litigation, arbitration, and mediation. Litigation, arbitration, and mediation are simply 3 different ways to resolve a dispute.

Litigation, of course, is suing to get a judgment on the debt that is owed to you. The advantage of litigation is that it is not voluntary; the debtor doesn't have to agree to participate, unless arbitration and mediation. If you win, you get a judgment that allows you to attach any income and property of the debtor that is not exempt under federal and state law to collect your judgment. That includes such things as attaching bank accounts, garnishing wages, etc.

Arbitration is a voluntary process in which the parties agree to have their dispute resolve by some neutral third party known as an arbiter or arbitrator. The agreement for arbitration can be included in the original contract (i.e. your note) or the agreement to arbitrate can be made once the dispute arises. Either way, if they choose binding arbitration, the arbiter's decision can be recorded much like a court judgment. Arbitration can be faster and less expensive than suing in court. If you didn't include a provision for arbitration in the original contract, you'd need the debtor to agree to arbitrate the debt matter now. You might not get that.

Mediation is simply negotiation between the parties using a neutral third party to aid in facilitating discussions and reaching agreement. It, too, is voluntary, requiring cooperation from both parties. Where the issue is simply non-payment of a debt, I see little benefit to mediation since the issue really is simply what you'd be willing to take as a payment agreement. Having a mediator for that strikes me as overkill. All you end up with at the end mediation is simply another contract, which the defendant might nor might not pay.


3.) Because I am in a low income bracket, what are my chances of an attorney working with me on a contingency basis, or work with me on other forms of payment?


Contact some attorneys and ask. Lacking the details of the debt and the security agreement, I cannot speculate as to how likely an attorney might be willing to work it on a contingent fee basis. The larger the amount at issue, the more the attorney can get in a fee and the more attractive the contingent fee agreement would be.

You said, however, that you have a security agreement. If you have sufficient security and did the security agreement properly, you should not need to sue, arbitrate, or mediate. You'd simply take the secured assets to collect the debt owed to you, if you can do so without a breach of the peace. So the details of that security agreement are very important.

#3 Guest_FindLaw_Amir_*

Guest_FindLaw_Amir_*
  • Guests

Posted 05 November 2012 - 02:38 PM

3.) Because I am in a low income bracket, what are my chances of an attorney working with me on a contingency basis, or work with me on other forms of payment?


You may wish to use the Lawyers Directory to locate a local lawyer wiling to advise you on this matter.




0 user(s) are reading this topic

0 members, 0 guests, 0 anonymous users