Table of Contents: The Law of Credit Management for Finance Companies
1 INTRODUCTION
1.1 DISCLAIMER
1.2 BUSINESS RISK
1.3 VOLUME AND IMPORTANCE OF MATERIAL
2 PROGRAMME FOR "THE LAW OF CREDIT MANAGEMENT"
3 LEGAL ENTITIES
3.1 WARM-UP EXERCISES
3.2 SOLE TRADERS
3.3 PARTNERSHIPS
3.4 LIMITED COMPANIES
3.5 TRUSTS
3.6 INCORPORATED SOCIETIES
3.7 UNINCORPORATED CLUBS
3.8 DECEASED DEBTORS
3.9 DEBTORS OVERSEAS
4 CONTRACTS GENERALLY
5 CREDIT CONTRACTS AND CONSUMER FINANCE ACT 2003
5.1 WHY THE PRESENT LAW NEEDED CHANGING
5.2 AN OVERVIEW OF THE ACT
5.3 SUMMARY OF REFORMS
5.3.1 Reduction in compliance costs for business borrowers and lenders
5.4 MEANING OF "CONSUMER CREDIT CONTRACT"
5.5 DECLARATIONS AS TO PURPOSE OF LOAN - IS THIS BUSINESS, INVESTMENT OR PERSONAL?
5.6 SOME AUSTRALIAN CASES ON PURPOSE OF LOAN
5.6.1 Esanda Finance Corporation Ltd [2004] QSC 257 (19 August 2004)
5.6.2 Giampaolo v Esanda Finance Corporation Ltd [2001] VSC 71
5.6.3 Mummery v IMMS Financial Services Ltd [2002] VCAT 383
5.6.4 Taylor & Taylor v Third Szable Holdings Pty Ltd & Secretary to the Dept of Justice [2001] VCAT 1841 (28 August 2001)
5.6.5 CCCFA purpose of loan exercises
6 SIGNING UP THE GUARANTORS AND COBORROWERS
6.1 THE PROBLEM
6.2 THE WAY TO DEAL WITH THIS UNDER THE CURRENT LAW
6.2.1 The English approach
6.3 COST OF LAWYERS
6.4 EXAMPLE CASES
7 A CREDIT REVOLUTION - HOW THE PPSA HAS CHANGED CREDIT MANAGEMENT IN NEW ZEALAND
7.1 ABBREVIATIONS AND SOME KEY DEFINITIONS
7.2 A SUMMARY OF SOME OF THE KEY CHANGES UNDER THE PPSA
7.2.1 Type of personal property irrelevant
7.2.2 Nature of parties' rights irrelevant
8 PRIORITIES, PMSIS, AND PERSONAL PROPERTY - SOME VITAL THEORY
8.1 OVERVIEW - THE BASIC RULES ON PRIORITIES
8.2 PURCHASE MONEY SECURITY INTERESTS
8.2.1 PMSI for collateral other than inventory or intangibles
8.2.2 PMSI for collateral which is inventory - trade creditors
8.2.3 A seller with a PMSI takes priority over a lender with a PMSI
8.3 PRECAUTIONS FOR LENDERS TAKING PMSI'S
8.3.1 Did the debtor use the loan to buy the goods he should have bought?
8.3.2 A PMSI only applies to money outstanding on goods purchased
9 HOW DOES THE PPSA AFFECT YOU? (A QUICK OVERVIEW)
9.1 CERTAINTY, SIMPLICITY, CHEAPNESS AND FAIRNESS
9.2 ALL PRESENT AND AFTER-ACQUIRED PERSONAL PROPERTY
9.3 GOODS WHICH ARE MADE INTO SOMETHING ELSE
9.4 PROCEEDS OF SECURED GOODS WHICH ARE SOLD
9.5 PROCEEDS OF GOODS WHICH ATTACH TO THE LAND
9.6 SMALL VALUE SALES OF SECURED CONSUMER GOODS
9.7 IN SOME CASES CREDITORS WILL BE ABLE TO SEIZE ROT GOODS FROM THIRD PARTY BUYERS
9.8 GOODS WHICH ARE LEASED FOR MORE THAN 12 MONTHS
9.9 VOIDABLE PREFERENCE CLAIMS
9.10 FINANCE COMPANY LENDS ON A CAR BOUGHT WITHIN THE LAST 10 DAYS
9.11 BOUNCED CHEQUES
9.12 VENDOR PMSI HAS PRIORITY OVER FINANCIER PMSI (SECTION 76)
9.13 JUDGMENT CREDITORS SEIZING GOODS UNDER A DISTRESS WARRANT
9.14 BUSINESS SALES
10 CREDIT AND COLLATERAL CHECKING
10.1 OVERVIEW
10.2 ACCESSING THE REGISTER
10.3 SEARCH CRITERIA
10.4 SEARCHING BY DEBTOR PERSON
10.5 SEARCHING THE VENDOR
10.6 SEARCHING BY COLLATERAL - WHAT DO YOU LOOK FOR AND GUARD AGAINST?
11 REGISTRATION
11.1 DATE OF PERFECTION (REGISTRATION OR POSSESSION) VERY IMPORTANT
12 THE DEBTOR TRANSFERS THE GOODS - CAN YOU TAKE THEM BACK?
12.1 OVERVIEW
12.2 SALE GENERALLY
12.3 WHAT IF THE COURT SEIZES A CAR TO SELL IT TO RECOVER UNPAID FINES?
12.4 CARS SEIZED BY POLICE UNDER THE LAND TRANSPORT ACT 1998
12.5 WHERE SECURED GOODS ARE SOLD WITHOUT CONSENT, THEN USED AS SECURITY OR ON-SOLD BY THE BUYER
12.6 WHERE SECURED GOODS ARE SOLD THEN RESOLD
12.7 THE "GARAGE SALE" SITUATION - GOODS $2000 OR LESS
12.8 GOODS SOLD IN THE ORDINARY COURSE OF BUSINESS
12.8.1 Goods sold in the ordinary course of business generally&
12.8.2 Motor vehicles sold by a licensed motor vehicle dealer
13 GOODS INSTALLED IN OTHER GOODS - ACCESSIONS AND COMMINGLING
13.1 ACCESSIONS
13.1.1 Seizing accessions - PPSA and Credit (Repossession) Act
14 SOME SPECIAL CASES
14.1 PRIORITY OF LIENS
14.1.1 Execution creditors
15 REPOSSESSING THE SECURITY
15.1 CREDITORS WITH LESSER PRIORITY CAN'T SEIZE AND SELL
15.1.1 Appointing a receiver to take possession of the collateral
15.1.2 Rules for seizing and selling collateral
15.2 NOTICES
15.2.1 Part 9 does not apply to consumer goods
15.2.2 Other collateral (not consumer goods) - no prior notice of seizure required
15.2.3 Sale of collateral
15.2.4 Example repossession case
16 MAKING GOOD DECISIONS ON LEGAL ACTION
16.1 DECISIONS ON LEGAL ACTION - A CHECKLIST FOR CREDITORS
16.2 COLLECTION DECISIONS GAME
16.3 THE "ECONOMIC COLLECTOR'S FORMULA" - A RULE OF THUMB FOR DECISIONS ON LEGAL ACTION
17 "FULL AND FINAL SETTLEMENT"
18 LEGAL ACTION CHARTS (DISTRICT COURT)
19 GETTING TO JUDGMENT
19.1 LIMITATION OF ACTIONS
19.2 NOTICE OF PROCEEDING AND STATEMENT OF CLAIM
19.3 SERVICE
19.4 COSTS
19.5 ADMISSION OF CLAIM
19.6 ENTRY OF JUDGMENT
19.7 SUMMARY JUDGMENTS
19.7.1 District Court Summary Judgment fees
20 ENFORCING JUDGMENT
20.1 GARNISHEE ORDERS
20.2 DISTRESS WARRANTS
20.3 ORDER FOR EXAMINATION
20.4 ATTACHMENT ORDER
20.5 PERIODIC DETENTION
20.5.1 Example case
20.6 ARREST
20.7 CHARGING ORDERS
21 EXERCISES
22 WINNING AT THE DISPUTES TRIBUNAL
22.1 A NINE POINT GUIDE TO SUCCESS IN THE TRIBUNAL
23 BANKRUPTCY AND COMPANY LIQUIDATIONS FOR FUN AND PROFIT
23.1 BANKRUPTCY QUIZ
23.2 TEST YOUR BANKRUPTCY KNOWLEDGE
23.3 BANKRUPTCY - AN OVERVIEW
23.4 BANKRUPTCY OFFENCES
23.5 PROTECTED PROPERTY
23.6 HOW DO YOU BANKRUPT SOMEONE?
23.7 PRIORITY OF PAYMENTS
23.8 SUMMARY INSTALMENT ORDERS
23.9 PART XV PROPOSALS
23.10 HOW TO WIND UP A COMPANY
23.11 THE PROS AND CONS OF WINDING UP ACTIONS
24 VOIDABLE TRANSACTIONS
24.1 OVERVIEW OF VOIDABLE TRANSACTIONS
24.1.1 Take what you can get
24.1.2 Time period
24.2 THE BASIC RULES ON VOIDABLE CHARGES
24.3 VOIDABLE CHARGES - OTHER MATTERS
24.3.1 What does "unable to pay its due debts" mean?
24.4 BANKRUPTS - VOIDABLE CHARGES UNDER THE INSOLVENCY ACT 1967
24.4.1 "In substitution"
24.4.2 The basic rules on voidable payments to creditors
24.5 DEFENCES TO CLAIM OF VOIDABLE PAYMENT
24.5.1 Ordinary course of business
24.5.2 Alteration of position
24.5.3 Payment made by someone other than the company
24.6 WHAT TO DO WHEN THE LIQUIDATOR OR OA CONTACTS YOU
24.6.1 When the liquidator calls!
25 AVOID THE HAZARDS AND SNARES OF THE HUMAN RIGHTS ACT
25.1 PROBLEM AREAS
25.2 PROBLEMS DEALING WITH THE HUMAN RIGHTS COMMISSION
25.3 ON WHAT GROUNDS CAN CREDIT BE REJECTED
26 THE PRIVACY ACT MADE SIMPLE (AND SHORT)
26.1 THE COST OF BREACHES OF THE PRIVACY ACT
26.2 GENERAL
26.3 THE SITUATIONS WHERE YOU (GENERALLY) DON'T NEED TO WORRY ABOUT THE PRIVACY ACT
26.4 PRIVACY CLAUSE
26.5 CREDIT CHECKING LIMITED LIABILITY COMPANIES
26.6 CREDIT CHECKING INDIVIDUALS
26.7 THE NEW CREDIT REPORTING PRIVACY CODE 2004
26.8 CREDIT REFERENCES
26.9 ADVERSE INFORMATION TO CREDIT REPORTING AGENCY
26.10 PRIVACY AND THE DEBT COLLECTION PROCESS
Seminars overview and registration: Australia / New Zealand